Gavouneli, Maria. Functional Jurisdiction in The Law of The Sea

FUNCTIONAL JURISDICTION IN THE LAW OF THE SEA
Publications on Ocean Development

Volume 62
A Series of Studies on
the International, Legal, Institutional and Policy Aspects
of Ocean Development
General Editor: Vaughan Lowe

Chichele Professor of Public International Law and Fellow of All Souls College,
Oxford University
The titles published in this series are listed at the end of this volume.
Functional Jurisdiction in
the Law of the Sea
MARIA GAVOUNELI
MARTINUS NIJHOFF PUBLISHERS

LEIDEN / BOSTON
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Every book is a story. This is a story about haddocks, stingrays and the ship
above them.
I wrote it surrounded by a bevy of willing young minds and a host of old
friends and family. For the comfort, the support, the helping hand, the little
messages of kind words, I thank you all.
And all my gratitude and love for , in the truest Greek sense
of the word. For bearing with me…
Athens, March 2007

TABLE OF CONTENTS
Foreword ……………………………………………………….……… ix
Abbreviations ………………………………………………….….…… xi
Part I
Jurisdiction in the Law of the Sea 1
Chapter 1
The manifestations of jurisdiction ……................................................... 5
1. Territoriality ………………………………………….………... 7
2. Nationality ……………………………………………………... 13
3. Universality ……………………………………………………. 19
4. Passive personality & the protective principle ……………........ 29
Chapter 2
State jurisdiction in the sea .……………………………………………. 33
1. The flag State ..……………………………………………….... 34
2. The coastal State …….……………………………………….... 39
3. The port State ………………………………….…………..…... 44
4. Concurrent jurisdiction in the law of the sea …………….…..... 49
Part II
Challenges to the jurisdictional zones 59
Chapter 3
Jurisdiction in the exclusive economic zone ……................................... 61
1. The balance of power ..……………………………………….... 62
2. The outer limits of a balancing act .............................................. 69
3. The attraction of unilateralism ……………………….………... 82
4. De uni pluria? …………………………………...……………... 90
Chapter 4
Fisheries jurisdiction in the high seas …………………………………. 97
1. The traditional regulation of high seas fisheries ………………. 98
viii TABLE OF CONTENTS
2. Institutional approaches to jurisdictional challenges ………….. 107

3. Jurisdiction without consent? ……………………………...…... 118
4. From freedom to fish to a right of access? …………………….. 127
Part III
Challenges to the allocation of jurisdiction 131
Chapter 5
Jurisdiction in the deep sea ……..…….................................................... 133
1. The jurisdictional exception of the deep seabed ……………..... 136
2. An institutional approach? ……………...……………………... 141
3. Manifestations of the freedoms of the high seas …..................... 147
4. Parallel jurisdictions in the deep sea……………........................ 152
Chapter 6
Challenges to jurisdiction in the high seas ………………………….…. 157
1. The limits of flag State jurisdiction …………………….…….... 159
2. Expanding jurisdiction? …...…………………………………... 165
3. Limitations to flag State exclusivity? ………………………….. 171
4. A solid foundation ……………………………………………... 177
Table of treaties ……..……………………….………………………… 179

Table of documents ……………………………………………………. 191
Table of legislation …………………………………………………….. 203
Table of cases ………………………………………………………….. 209
Bibliography …………………………………………………………… 215
Index …………………………………………………………………… 277
FOREWORD
It is a commonplace observation that the 1982 UN Convention on the Law of

the Sea establishes a framework for the Law of the Sea that is based upon
two different concepts. One is a zonal analysis, which takes the juridical
zones into which the seas are divided and stipulates the basic rules applica-
ble to each of them in turn. The other is a topical analysis, taking some of the
main activities on the seas, such as fishing, marine research and pollution,
and again setting out the basic rules for each. The framework is, however,
incomplete, and a great deal is left open, not only to be worked out in more
detailed treaties but also to be governed by more general principles of inter-
national law. In this way the 1982 regime will continue to develop to meet
new challenges and changed circumstances.
In this monograph Dr Gavouneli explores these issues and offers an expert
insight into the jurisdictional developments that are clearly discernable a
quarter-century after the adoption of the Convention. Her keen analysis
moves from fundamental principles governing jurisdiction in international
law to shrewd reflections on the significance of current developments such
as the Proliferation Security Initiative and questions of jurisdiction over the
international seabed area. This thoughtful text will be of real interest to all
who have a concern with the directions in which the contemporary Law of
the Sea is growing.
Vaughan Lowe
Oxford, August 2007
ABBREVIATIONS
ADM Annuaire du Droit de la Mer

AEDPA Anti-terrorism & Effective Death Penalty Act (USA)
AFDI Annuaire français de droit international
African JICL African Journal of International & Comparative Law
AJCL American Journal of Comparative Law
AJIL American Journal of International Law
APM Associated Protective Measures
ARIEL Austrian Review of International & European Law
Arizona JICL Arizona Journal of International & Comparative Law
Asia Pacific JEL Asia Pacific Journal of Environmental Law
Asian YBIL Asian Yearbook of International Law
ASR Articles on State Responsibility
ATBA Areas to be Avoided
AWPPA Arctic Waters Pollution Prevention Act (Canada)
BCN weapons Biological, chemical & nuclear weapons
Berkeley JIL Berkeley Journal of International Law
BOE Boletín oficial del Estado
Boston College
ICLR Boston College International & Comparative Law Review
Boston ULR Boston University Law Review
Brooklyn JIL Brooklyn Journal of International Law
Buffalo HRLR Buffalo Human Rights Law Review
BYBIL British Yearbook of International Law
California LR California Law Review
California
Western ILJ California Western International Law Journal
Cambridge YB
European Legal
Studies Cambridge Yearbook of European Legal Studies
Canadian YBIL Canadian Yearbook of International Law
xii FUNCTIONAL JURISDICTION IN THE LAW OF THE SEA
CAS Condition Assessment Scheme

CBD Convention on Biological Diversity
CCAMLR Convention for the Conservation of
Antarctic Marine Living Resources
CCSBT Commission for the Conservation of Southern Bluefin Tuna
CDEMs Construction, design, equipment and manning standards
CETS Council of Europe Treaty Series
CFR Code of Federal Regulations
CFSP Common Foreign & Security Policy (European Union)
CITES Convention on international trade in endangered species
of wild fauna & flora
CMLR Common Market Law Review
Colorado JIELP Colorado Journal of International Environmental Law
& Policy
COLREG Convention on the International Regulations for Preventing
Collisions at Sea (IMO)
Columbia J
Transn’l L Columbia Journal of Transnational Law
Cornell LR Cornell Law Review
CSA Canada Shipping Act
DOALOS Division for Ocean Affairs and the Law of the Sea
EC European Community
ECHR European Court of Human Rights
ECJ European Court of Justice
Ecology LQ Ecology Law Quarterly
ECOSOC Economic & Social Council
ECR European Court Reports
EEC European Economic Community
EEnvLR European Environmental Law Review
EEZ Exclusive Economic Zone
EJIL European Journal of International Law
Emory ILR Emory International Law Review
Env’l &
Planning LJ Environmental & Planning Law Journal
ETS European Treaty Series
EU European Union
European LR European Law Review
FAO Food & Agricultural Organisation
ABBREVIATIONS xiii
Florida JIL Florida Journal of International Law

Georgetown
IELR Georgetown International Environmental Law Review
Georgia JICL Georgia Journal of International & Comparative Law
Georgia JICLQ Georgia Journal of International Comparative Law Quarterly
Georgia LR Georgia Law Review
GFCM General Fisheries Commission for the Mediterranean
GYBIL German Yearbook of International Law
Harvard ILJ Harvard International Law Journal
Harvard JLPP Harvard Journal of Law & Public Policy
Hofstra LR Hofstra Law Review
IATCC Inter-American Tropical Tuna Commission
ICC International Criminal Court
ICCAT International Commission for the Conservation
of Atlantic Tunas
ICCPR International Covenant on Civil & Political Rights
ICJ International Court of Justice
ICLQ International & Comparative Law Quarterly
ICTY International Criminal Tribunal for the former Yugoslavia
IELR International Environmental Law Reports
IJMCL International Journal of Marine & Coastal Law
ILA International Law Association
ILC International Law Commission
ILM International Legal Materials
ILO International Labour Organisation
ILR International Law Reports
IMO International Maritime Organisation
INDEMER Institut du droit économique de la mer
Indian JIL Indian Journal of International Law
IOFC Indian Ocean Fishery Commission
IOrgLR International Organisations Law Review
IOTC Indian Ocean Tuna Commission
ISA International Seabed Authority
ISM Code International Code for the Safe Operation of Ships and
for Pollution Prevention (IMO)
Israel YBHR Israel Yearbook of Human Rights
Italian YBIL Italian Yearbook of International Law
xiv FUNCTIONAL JURISDICTION IN THE LAW OF THE SEA
ITLOS International Tribunal for the Law of the Sea

IUU fishing Illegal, Unreported & Unregulated fishing
IWC International Whaling Committee
JDI Journal de droit international
JEL Journal of Environmental Law
JENRL Journal of Energy and Natural Resources Law
JHA Justice & Home Affairs (European Union)
JICJ Journal of International Criminal Justice
JIML Journal of International Maritime Law
JMLC Journal of Maritime Law & Commerce
JO Journal Officiel (France)
Leiden JIL Leiden Journal of International Law
LOSC Law of the Sea Convention
MARPOL International Convention for the Prevention of Pollution
from Ships (IMO)
Max Planck
YBUNL Max Planck Yearbook of United Nations Law
Melbourne JIL Melbourne Journal of International Law
Melbourne ULR Melbourne University Law Review
MERC Marine Environment Protection Committee (IMO)
Michigan JIL Michigan Journal of International Law
MOU Memorandum of Understanding
NAFO North Atlantic Fisheries Organisation
NEAFC North-Eastern Atlantic Fisheries Commission
NGO Non Governmental Organisation
NILR Netherlands International Law Review
Nordic JIL Nordic Journal of International Law
NPT Non-Proliferation of Nuclear Weapons
NRJ Natural Resources Journal
NYBIL Netherlands Yearbook of International Law
NYUJILP New York University Journal of International Law & Policy
NZJEL New Zealand Journal of Environmental Law
OAS Organization of American States
Ocean YB Ocean Yearbook
OCLJ Ocean & Coastal Law Journal
ODIL Ocean Development & International Law
OECD Organisation of Economic Cooperation & Development
ABBREVIATIONS xv
OJ Official Journal
OPA Oil Pollution Act (USA)
Oregon LR Oregon Law Review
OSPAR Convention for the Protection of the Marine Environment
of the North-East Atlantic
Ottawa LR Ottawa Law Review
Pace ILR Pace International Law Review
PCA Permanent Court of Arbitration
PCIJ Permanent Court of International Justice
PC-TJ Committee of Experts on Transnational Justice (CoE)
PSI Proliferation Security Initiative
PSSA Particularly Sensitive Sea Area
RBDI Revue belge de droit international
RCADI Recueil des cours de l’Académie de droit international
RCDIP Revue critique de droit international privé
RDI Rivista di diritto internazionale
RECIEL Review of European Community &
International Environmental Law
REDI Revista española de derecho internacional
RFMO Regional Fisheries Management Organisation
RFO Regional Fisheries Organisation
RGA Rivista giuridica dell’ambiente
RGDIP Revue général de droit international public
RHDI Revue hellénique de droit international
RJE Revue juridique de l’environnement
RMCUE Revue de marché commun et de l’Union européenne
S.Ct. Supreme Court (USA)
San Diego ILJ San Diego International Law Journal
San Diego LR San Diego Law Review
SAR International Convention on Maritime Search & Rescue (IMO)
SEAFO Convention on the conservation & management
of the fisheries resources of the South East Atlantic
Singapore JICL Singapore Journal of International & Comparative Law
SIPRI Stockholm International Peace Research Institute
SOFA Status of Forces Agreement
SOLAS International Convention on the Safety of Life at Sea (IMO)
xvi FUNCTIONAL JURISDICTION IN THE LAW OF THE SEA
South African
YBIL South African Yearbook of International Law
Spanish YBIL Spanish Yearbook of International Law
SPAW Specially Protected Areas & Wildlife
SPRFMO South Pacific Regional Fisheries Management Organisation
STCW International Convention on Standards of Training,
Certification & Watchkeeping for Seafarers (IMO)
SUA Convention for the Suppression of Unlawful Acts against
Convention the Safety of Maritime Navigation (IMO)
Suffolk
Transn’l LR Suffolk Transnational Law Review
Sydney LR Sydney Law Review
Syracuse JICL Syracuse Journal of International & Comparative Law
Syracuse JILC Syracuse Journal of International Law & Commerce
TAC Total Allowable Catch
Temple ICLJ Temple International & Comparative Law Journal
Tennessee LR Tennessee Law Review
Texas JIL Texas Journal of International Law
Texas LR Texas Law Review
TIJMCL The International Journal of Marine & Coastal Law
Transportation
LJ Transportation Law Journal
Tulane ELJ Tulane Environmental Law Journal
Tulane JICL Tulane Journal of International & Comparative Law
Tulane LR Tulane Law Review
U Miami IALR University of Miami Interamerican Law Review
UDHR Universal Declaration of Human Rights
UK United Kingdom
UN United Nations
UNCED United Nations Conference on Environment & Development
UNCLOS United Nations Conference on the Law of the Sea
UNESCO United Nations Educational, Scientific & Cultural Organisation
UNHCR United Nations High Commission for Refugees
UNICPLOS United Nations Informal Consultative Process
on the Law of the Sea
UNRIAA United Nations Reports of International Arbitral Awards
UNTS United Nations Treaty Series
ABBREVIATIONS xvii
US United States
USC United States Code
UST United States Treaties
Vanderbilt J
Transn’l L Vanderbilt Journal of Transnational Law
Vermont LR Vermont Law Review
Virginia JIL Virginia Journal of International Law
VTS Vessel Traffic Services
WCPFC Western & Central Pacific Fisheries Committee
West Indian LJ West Indian Law Journal
WHO World Health Organisation
Wisconsin ILJ Wisconsin International Law Journal
WMD Weapons of Mass Destruction
WMUJMA World Maritime University Journal of Maritime Affairs
WTO World Trade Organisation
Yale JIL Yale Journal of International Law
YBIEL Yearbook of International Environmental Law
YBILC Yearbook of the International Law Commission
ZaöRV Zeitschrift für ausländisches öffentliches Recht
& Völkerrecht
PART I
JURISDICTION IN THE LAW OF THE SEA
When on 10 December 1982 the Law of the Sea Convention 1 was finally
concluded, after one of the lengthier ever negotiations in international law-
making, the end-product was truly impressive. Much more than a codifying
treaty in progressive development of a very old branch of international law
or even simply “a constitution for the oceans” 2 , the new instrument created
an integral normative system, complete with a compulsory dispute settle-
ment mechanism and its own (though non-exclusive) judicial forum. It was
also a new blueprint for the partition of the sea 3 , a monumental allocation of
powers strongly reminiscent of – and certainly comparable to – the very real
struggle 4 underpinning the intellectual duel evidenced in Huig de Groot’s
Mare liberum (1609) 5 and John Shelden’s Mare clausus (1635) 6 . As such the
Law of the Sea Convention (LOSC) was the culmination of the tug-of-war
between the sovereignty of the coastal State, which atavistically purports to
expand its power further and further away from land; and the freedom of the
1
1833 UNTS 396; 21 ILM 1982, pp. 1261-1354.
2
Thus the statement of Tommy T.B. Koh, President of the Third UN Conference on the
Law of the Sea; see <www.un.org/Depts/los/convention_agreements/texts/koh_english.pdf>;
see also Robin R. Churchill, 10 Years of the UN Convention on the Law of the Sea – Towards
a global ocean regime? A general appraisal, 48 GYBIL 2005, pp. 81-116, at pp. 84-88; Shirley
V. Scott, The Law of the Sea Convention as a constitutional regime for the oceans, in Alex G.
Oude Elferink (ed.), Stability and change in the Law of the Sea: The role of the Law of the
Sea Convention (Martinus Nijhoff, 2005) pp. 9-38; Bernard H. Oxman, The rule of law and
the United Nations Convention on the Law of the Sea, 7 EJIL 1996, pp. 353-371.
3
P.J. Allott, Power-sharing in the Law of the Sea, 77 AJIL 1983, pp. 1-30.
4
For the history of the law of the sea in detail see D.P. O’Connell, The International Law
of the Sea (vol. I, Clarendon, Oxford 1982) pp. 1-28; R.P. Anand, Origin and Development of
the Law of the Sea: History of International Law Revisited (Martinus Nijhoff, The Hague
1983); Hugo Caminos & Vicente Marotta Rangel, Sources of the Law of the Sea, in René-
Jean Dupuy & Daniel Vignes (eds.), A Handbook of the New Law of the Sea (Martinus Ni-
jhoff, Dordrecht 1991) pp. 29-139; T. Scovazzi, The evolution of international law of the sea:
New issues, new challenges, 286 RCADI 2000, pp. 39-244, at pp. 55-121.
5
Anonymous, Mare liberum sive de jure, quod Batavis competit ad Indicana commercia,
dissertatio (Ludguni Batavorum 1609); Hugo Grotius, The Freedom of the Seas (Carnegie
Endowment for International Peace, New York, reprinted 1952).
6
J. Seldenus, Mare clausum seu de dominio maris libri duo (Londini 1635).
2 FUNCTIONAL JURISDICTION IN THE LAW OF THE SEA
high seas, a principle partly created as a reflexion of the impossibility to

subdue the vast expanse of water for long centuries in human history 7 .
The trend was already in place when the 1930 Hague Conference for the
Codification of International Law was convened, where Bases of Discussion
No. 1 stated: “A State possesses sovereignty over a belt of sea around its
coasts; this belt constitutes its territorial waters” 8 . The 1945 Truman Procla-
mations on the continental shelf 9 and coastal fisheries 10 ushered in a wave of
similar proclamations in a continuing wave of expansion 11 – all the way to
the Chilean concept of mar presencial, first introduced by Admiral Jorge
Martinez Busch, Commander in Chief of the Chilean Navy 12 and tentatively
defined as
“[a] type of contiguous zone to the exclusive economic zone, in which the
State may prevent infringements of its fishing, research and resources exploita-
tion interests in the exclusive economic zone” 13 .
7
Thus Joe Verhoeven, Droit international public (Larcier, Bruxelles 2000) at p. 521; al-
though one should also keep in mind the Roman mare nostrum approach to the Mediterranean
Sea and the Inter Caetera bull of Pope Alexander VI, done on 4 May 1493; text available at
<bullsburning.itgo.com/essays/Caetera#theBull>.
8
Reproduced in S. Rosenne (ed.), League of Nations Conference for the Codification of In-
ternational Law 1930 (vol. II, Oceana, New York 1975) at p. 235. See also Jesse S. Reeves,
The codification of the law of territorial waters, 24 AJIL 1930, pp. 486-499.
9
Presidential Proclamation No. 2667, Policy of the United States with respect to the natu-
ral resources of the subsoil and the sea bed of the continental shelf, 28 September 1945, 10
Federal Registry 12303, [1943-48] 3 CFR §68. It was further supplemented by Executive Or-
der No. 9633, 28th September 1945, 10 Federal Registry 12305, [1943-48] 3 CFR §437. See
also Donald Cameron Watt, First steps in the enclosure of the oceans. The origins of Truman’s
Proclamation on the Resources of the Continental Shelf, 3 Marine Policy 1979, pp. 211-214.
10
Presidential Proclamation No. 2668, Policy of the United States with respect to coastal
fisheries in certain areas of the high seas, 28 September 1945, 10 Federal Registry 12304,
[1943-48] 3 CFR §68. Again it was further supplemented by Executive Order No. 9634, 28th
September 1945, 10 Federal Registry 12305, [1943-48] 3 CFR §437.
11
4 Whiteman’s Digest of International Law 1964, at p. 740. See, however, Georges Scelle,
Plateau continental et droit international, RGDIP 1955, pp. 5-65.
12
“La gran tarea de esta generación es la ocupación efectiva de nuestro mar”, Clase magis-
tral dictada por el Comandante en Jefe de la Armada, Valparaíso, 4 May 1990; Jorge Martinez
Busch, El mar presencial: un nuevo concepto unificador del derecho internacional del mar, 60
Revista de Derecho de la Universidad de Concepción 1992, pp. 7-24.
13
Jane Gilliland Dalton, The Chilean mar presencial: A harmless concept or a dangerous
precedent? 8 IJMCL 1993, pp. 397-418, at p. 400. For an overview see Francisco Orrego Vi-
cuña, La ‘mer de présence’: un nouveau développement en droit international à l’égard de la
pêche en haute mer, 7 Espaces et ressources maritimes 1993, pp. 32-46; contra: Thomas A.
Clingan, Jr., Mar presencial (the presential sea): déjà-vu all over again? – a response to Fran-
cisco Orrego Vicuña, 24 ODIL 1993, pp. 93-97; Christopher C. Joyner & Peter N. DeCola,
Chile’s presential sea proposal: implications for straddling stocks and the international law of
fisheries, 24 ODIL 1993, pp. 99-121; Bernard Labat, Le concept chilien de ‘mer presentielle’
JURISDICTION IN THE LAW OF THE SEA 3
The 1958 UN Conference on the Law of the Sea (UNCLOS I) ended up

with the adoption of four conventions 14 and the creation of five zones in the
sea 15 : internal waters, territorial sea, the contiguous zone, the high seas and,
underneath it all, the continental shelf. This zonal approach, mostly based on
concentric circles drawn from the baseline, was further accentuated in the
Law of the Sea Convention, where the distance element was replaced by a
spatial element tout court. We now have six categories of marine water
spaces: internal waters 16 , territorial sea 17 , archipelagic waters 18 , contiguous
zone 19 , exclusive economic zone (EEZ) 20 , high seas 21 ; and two categories of
marine underwater areas: the continental shelf 22 and the Area 23 – and perhaps
even a archaeological zone 24 . The ‘unlimited expanse’ of Grotius has been
converted into tidy stripes of jurisdiction, often vying for the same territory.
In a typical example 25 , the contiguous zone is a part of the high seas, if the
coastal State has not declared an exclusive economic zone; otherwise, it be-
comes a part of the exclusive economic zone. Similarly, when no exclusive
economic zone exists, the waters above the continental shelf are the high
et ses conséquences sur le régime de la pêche dans la partie de la haute mer adjacente à la
limite des 200 milles marins, 2 Annuaire du Droit de la Mer 1997, pp. 29-52.
14
Convention on the High Seas, 450 UNTS 82; Convention on the Continental Shelf, 499
UNTS 311; Convention on the Territorial Sea and Contiguous Zone, 516 UNTS 205; Conven-
tion on Fishing and Conservation of the Living Resources of the High Seas, 559 UNTS 285.
15
Arthur H. Dean, The Geneva Conference on the Law of the Sea: What was accom-
plished, 52 AJIL 1958, pp. 607-628; Wolfgang Friedmann, Selden Redivinus – Toward a Par-
tition of the Seas?, 65 AJIL 1971, pp. 757-770.
16
Article 8 LOSC.
17
Article 2 LOSC.
18
Articles 46-54 LOSC.
19
Article 33 LOSC.
20
Article 55 LOSC.
21
Article 86 LOSC.
22
Article 76 LOSC.
23
Article 1 paragraph 1(1) LOSC.
24
Articles 303 and 149 LOSC. For an overview see A. Strati, The protection of the under-
water cultural heritage: An emerging objective of the contemporary law of the sea (Martinus
Nijhoff, The Hague 1995); Tullio Scovazzi, The protection of underwater cultural heritage:
Article 303 and the UNESCO Convention, in David Freestone, Richard Barnes & David Ong
(eds.), The Law of the Sea. Progress and Prospects (Oxford 2006) pp. 120-136; Anastasia
Strati, Protection of the underwater cultural heritage: From the shortcomings of the UN Con-
vention on the Law of the Sea to the compromises of the UNESCO Convention, in A. Strati,
M. Gavouneli & N. Skourtos (eds.), Unresolved Issues and New Challenges to the Law of the
Sea (Martinus Nijhoff, Leiden/Boston 2006) pp. 21-62.
25
Mentioned also by Yoshifumi Tanaka, Zonal and integrated management approaches to
ocean governance: Reflections on a dual approach in the international law of the sea, 19
TIJMCL 2004, pp. 483-514, at p. 485.
seas; if, however, the coastal State establishes an exclusive economic zone,
then the continental shelf becomes the seabed part of that exclusive eco-
nomic zone 26 .
In view of the multiplication and overlapping of these diverse zones, it be-
comes clear that one cannot proceed with the examination of the manifold
manifestations of jurisdiction in the Law of the Sea Convention (Chapter 2)
without a preliminary understanding of what jurisdiction is and how it works
in international law generally and in the law of the sea in particular (Chapter
1); in other words, the tools of the trade.
A final comment is perhaps not necessary. Throughout this book, refer-
ence will be made to the provisions of the Law of the Sea Convention as
identical to the rules of customary international law of the sea – except
where it is clearly indicated otherwise. It is widely understood that the Law
of the Sea Convention constituted a codification of customary rules, existing
at the time, and contained also instances of progressive development of in-
ternational law, which have become in a very short period of time customary
rules in their own right 27 . I believe that the record of State practice, including
that of the United States 28 , conspicuously absent so far from the world com-
munity adhering to this universal treaty 29 , testifies to the general acceptance
of its content as part of the general customary law of the sea. For it is, after
all, a constitution for the oceans.
26
Article 56 paragraph 1 LOSC. See also François Pulvenis, Zone économique et plateau
continental: unité ou dualité, 11-12 Revue iranienne des relations internationales 1978, pp.
103-120.
27
Continental Shelf Tunisia/Libyan Arab Jamahiriya, ICJ Reports 1982, available at
<www.icj-cij.org>; see also Rudolf Bernhardt, Custom and treaty in the Law of the Sea, 205
RCADI 1987-V, pp. 247-330.
28
For an overview see the hearings on the Law of the Sea Convention before the Foreign
Affairs Committee of the US Senate, available at <www.foreign.senate.gov/hearings/2003/
hrg031014a.html>; see also John A. Duff, A note on the United States and the Law of the Sea:
Looking back and moving forward, 35 ODIL 2004, pp. 195-219; John Norton Moore & Wil-
liam L. Schachte, Jr., The Senate should give immediate advice and consent to the UN Con-
vention on the Law of the Sea: Why the critics are wrong, 50 Journal of International Affairs
2005, pp. 1-24, at p. 20.
29
The Law of the Sea Convention had, as of March 2007, 157 signatories and 153 ratifica-
tions; data available at <www.un.org/los>. See also R.R. Churchill & A.V. Lowe, The Law of
the Sea (3rd ed., Manchester University Press 1999) at p. 22.
CHAPTER 1
THE MANIFESTATIONS OF JURISDICTION
“International jurisdiction is an aspect or an ingredient or a consequence of

sovereignty” 1 , stated succinctly F.A. Mann in the beginning of his second
foray on The Doctrine of International Jurisdiction at the Hague Academy
of International Law. “The legal rules and principles governing jurisdiction
have a fundamental importance in international relations, because they are
concerned with the allocation between States, and other entities such as the
European Union, of competence to regulate daily life – that is, the compe-
tence to secure the differences that make each State a distinct society” 2 ,
commented on a more practical level Vaughan Lowe. Both aspects are es-
sential for our understanding of jurisdiction and its function in the interna-
tional scene today.
Dealing with jurisdiction in one of its first pronouncements, the Permanent
Court of International Justice already noted in the S.S. Lotus case 3 that a
State’s “title to exercise jurisdiction rests in its sovereignty” 4 . It does not,
however, coincide with such sovereignty nor is it a uniform concept. Juris-
diction may be encountered in various shapes and forms, with different no-
tions of it available at the international and the national level 5 . It could refer
to the judicial, legislative or administrative competence of the State 6 . It could
apply to civil cases broadly defined, i.e. including fiscal and taxation mat-
ters 7 , as ‘civil jurisdiction’ and to criminal cases as ‘criminal jurisdiction’ –
1
F.A. Mann, The doctrine of international jurisdiction revisited after twenty years, 196
RCADI 1984-III, pp. 9-116, at p. 20.
2
Vaughan Lowe, Jurisdiction, in Malcolm D. Evans (ed.), International Law (2nd ed., Ox-
ford 2006) pp. 335-360, at p. 336.
3
The case of SS Lotus, France v. Turkey, Judgment no. 9, PCIJ, Ser. A, No. 10, 1927, pp.
3-33; also available at <www.icj-cij.org>. The case also has the unenviable privilege to be ac-
tually overturned by subsequent State practice and international treaty, namely the allocation
of jurisdiction in article 11 paragraph 2 of the 1958 High Seas Convention; 450 UNTS 82.
4
The SS Lotus case, supra, at p. 19.
5
Oppenheim’s International Law, vol. I: Peace, Introduction and Part 1 (9th edition, edited
by Sir Robert Jennings & Sir Arthur Watts, Longman 1992) at p. 456.
6
Ian Brownlie, Principles of Public International Law (6th edition, Oxford 2003) at p. 297.
7
See in particular F.A. Mann, The doctrine of international jurisdiction, 111 RCADI 1964-
I, pp. 9-168, at pp. 109-119.
allowing international courts and tribunals to extract different conclusions on

common rules 8 . It could be partitioned to ‘executive jurisdiction’, the power
of a State to perform acts in the territory of another State; ‘judicial jurisdic-
tion’, the power of a State’s courts to try cases involving a foreign element;
and ‘legislative jurisdiction’, the power of a State to apply its laws to cases
involving a foreign element 9 . The more traditional descriptive approach dis-
tinguishes between “the power to make decisions or rules (the ‘prescriptive
or legislative jurisdiction’)” and “the power to take executive action in pur-
suance of or consequent on the making of decisions or rules (the ‘enforce-
ment or prerogative jurisdiction’)” 10 .
It is quite clear, however, that ultimately the legal basis of all aspects of
jurisdiction remains the same, namely State sovereignty – and whatever the
label attached, jurisdiction remains the external manifestation of the power
of the State. A mutual limitation of sovereign powers, in a world inhabited
by equal, sovereign and independent States, becomes therefore a necessary
corollary to State jurisdiction as a State’s right to prescribe (and enforce)
rules for persons in another State is subject to that other State’s right to pre-
scribe (and enforce) such rules itself. The legitimacy of contradictory claims
may then be verified on the basis of commonly agreed bases of jurisdiction,
the typical recital of which includes:
the principle of territoriality, “determining jurisdiction by reference
to the place where the offence is committed” 11 ;
the principle of nationality, “determining jurisdiction by reference to
the nationality or national character of the person committing the of-
fence” 12 ;
the universality principle, “determining jurisdiction by reference to
the custody of the person committing the offence” 13 ;
the protective principle, “determining jurisdiction by reference to the
national interest injured by the offence” 14 ;
8
Thus the European Court of Human Rights in the Al-Adsani case distinguishing between
civil and criminal jurisdiction in order to decide whether State immunity should yield before a
ius cogens rule; ECHR, Al-Adsani v. United Kingdom, Grand Chamber, 21 November 2001,
App. No. 35763/97, <www.echr.coe.int>.
9
Michael Akehurst, Jurisdiction in international law, 46 BYBIL 1972-73, pp. 145-257, at p.
145; Malcolm Shaw, International Law (5th ed., Cambridge 2003) at pp. 576-578.
10
Brownlie, supra note 6, at p. 297.
11
As defined in the Introductory Comment to the Harvard Research Draft Convention on
Jurisdiction with Respect to Crime, 29 AJIL 1935, Spec. Suppl., at p. 443.
12
Ibid.
13
Ibid.
14
Ibid.
THE MANIFESTATIONS OF JURISDICTION 7
the passive personality principle, “determining jurisdiction by refer-

ence to the nationality or national character of the person injured by
the offence” 15 .
Most domestic legal orders operate on all or some of these principles 16 – or
even manifestations thereof. The allocation of jurisdiction in the law of the
sea is mostly based on the application of the first three principles. Roughly
speaking, the principle of territoriality operates in the areas under the sover-
eignty of the coastal State; nationality is embodied in the flag and expressed
in the powers of the flag State; whereas universality is manifested in the
regulation of crimenes iure gentium, traditionally piracy. There are, how-
ever, instances where other bases of jurisdiction operate. In a typical exam-
ple, the contiguous zone is the embodiment of the protective principle; the
latter’s irruption in the high seas (coupled with the aggressive application of
the passive personality principle) is further contributing to the primary ten-
sion between State jurisdiction and freedom of the seas.
1. TERRITORIALITY
The principle of territoriality is derived directly from the territorial ele-

ment of the State 17 and denotes the sum of its legal competences, its ‘ple-
nary’ jurisdiction, summa potestas. As such it is further complemented by
instances where the State exercises prescriptive jurisdiction over activities
initiated in its territory but completed outside its territory (‘subjective territo-
rial jurisdiction’) or activities completed within its territory although initi-
ated outside its territory (‘objective territorial jurisdiction’) 18 . The latter has
15
Ibid. Note, however, that the 1935 Harvard Research Draft Convention adopted only the
first four principles, considering the last one of questionable permissibility; ibid., at 579. See
also Angelos Yokaris, La répression pénale en droit international public (Ant. N. Sakkou-
las/Bruylant, Athènes/Bruxelles 2005) at pp. 43-45.
16
Thus in the Greek legal order the jurisdiction of Greek courts is found on all of the above
principles: territoriality in article 5 of the Criminal Code; nationality in article 6 CC; passive
personality in article 7 CC; the protective principle and universality in article 8 CC; Christos
Mylonopoulos, . [=International
Criminal Law. The territorial limits of criminal laws] (2nd ed., Athens 1993).
17
D.W. Bowett, Jurisdiction: Changing patterns of authority over activities and resources,
53 BYBIL 1982, pp. 1-26; Oppenheim’s, supra note 5, pp. 458-461. See also The Schooner
Exchange v. Mac Faddon (1812), 7 Cranch 116, at p. 136 per Marshall, CJ; North Atlantic
Coast Fisheries case (1910), 11 UNRIAA 167, at p. 180; Compania Naviera Vascongado v.
Cristina SS [1938] AC 485, at pp. 496-497 per Lord Macmillan; R. v. West Yorkshire Coro-
ner, ex parte Smith [1983] QB 335, at p. 358 per Donaldson LJ.
18
Lowe, supra note 2, at p. 338; Brownlie, supra note 6, pp. 299-301. The typical example
of the latter is the Lockerbie case, where Scots law was successfully asserted and the trial took
given rise to significant legal controversy when the US courts assumed juris-
diction in antitrust litigation over activities which, though neither actually
initiated nor completed in the US, produced nevertheless “effects” within US
territory 19 . Although later mitigated in (fluctuating) practice 20 , the effects
doctrine gave rise to repeated assertions of extraterritoriality, usually on po-
litical grounds – in the most recent example, in the context of economic
sanctions initially against Cuba (by virtue of the Helms-Burton Act) 21 and
later against Iran and Libya (by virtue of the D’Amato-Kennedy Act) 22 . The
response by the international community was invariably negative, feeding a
place in the Netherlands in a courtroom deemed under Scots jurisdiction; High Court of Judi-
ciary, HM Advocate v. Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah, case
no. 1454/99, available at <www.scotcourts.gov.uk>. A. Aust, Lockerbie: The other case, 49
ICLQ 2000, pp. 278-296; Michel Cosnard, Observations à propos de l’arrêt rendu par la
Haute Cour de Justice écossaise dans l’affaire de Lockerbie, AFDI 2000, pp. 643-653; Sean
D. Murphy, Contemporary practice of the United States, 95 AJIL 2001, at pp. 405-407; Jean-
François Marchi, Le règlement des affaires Lockerbie et du DC-10 d’UTAQ: Indemnités et
questions connexes, AFDI 2004, pp. 173-212.
19
In the classical formulation of the doctrine “any State may impose liabilities, even upon
persons not within its allegiance, for conduct outside its borders that has consequences within
its borders which the State reprehends”; US v. Aluminium Company of America (Alcoa), 148
F.2d 416 (1945), at p. 443; later reaffirmed in US v. The Watchmakers of Switzerland Infor-
mation Center, Inc., 133 F.Supp. 40 and 134 F.Supp. 710 (1963); Hazeltine Research Inc. v.
Zenith Radio Corporation, 239 F.Supp. 51 (1965), aff’d 395 US 100 (1969). For a concise
overview see Shaw, supra note 9, at pp. 611-620.
20
Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (1976); Mannington Mills v.
Congoleum Corporation, 595 F.2d 1287 (1979); Hoffmann-La Roche Ltd. V. Empagran S.A.,
542 US 155 (2004); but see also Hartford Fire Insurance Co. v California, 113 S. Ct. 2891
(1993). For full commentary see Harold Maier, Interest balancing and extraterritorial jurisdic-
tion, 31 AJCL 1983, pp. 579-597; Wilbur Fugate, Antitrust aspects of the Revised Restate-
ment of Foreign Relations Law, 25 Virginia JIL 1984, pp. 49-71; Andreas Lowenfeld, Con-
flict, balancing of interests and the exercise of jurisdiction to prescribe: Reflections on the In-
surance Antitrust case, 89 AJIL 1995, pp. 42-53.
21
Cuban Liberty and Democratic Solidarity (Libertad) Act 1996 (Helms-Burton Act), Pub-
lic Law 104-114, 22 USC 6021, 35 ILM 1996, pp. 357-378. See also Andreas F. Lowenfeld,
Congress and Cuba: The Helms-Burton Act, 90 AJIL 1996, pp. 419-434; contra: Brice Clagett,
Title III of the Helms-Burton Act is consistent with International Law, ibid., pp. 434-440.
22
Iran and Libya Sanctions Act 1996 (D’Amato-Kennedy Act), Public Law 104-172, 50
USC 1701, 35 ILM 1996, pp. 1273-1279. For general reactions see Vaughan Lowe, US extra-
territorial jurisdiction: the Helms-Burton and D’Amato Acts, 46 ICLQ 1997, pp. 378-390;
Michel Cosnard, Les lois Helms-Burton and D’Amato-Kennedy. Interdiction de commercer
avec et d’investir dans certains pays, AFDI 1996, pp. 31-61; Brigitte Stern, Vers une
mondialisation juridique ? Les lois Helms-Burton et D’Amato-Kennedy, RGDIP 1996, pp. 979-
1003. See also the reaction by the Organisation of American States, Inter-American Juridical
Committee, Opinion examining the US Helms-Burton Act, OAS Doc. CJI/SO/II/doc.67/96rev.5,
27 August 1996, 35 ILM 1996, pp. 1322-1334.
circle of reaction and counteraction in many States 23 and principally in its

major economic and political partner, the European Community 24 and the
European Union 25 . The (quasi-) normalisation of the commercial transactions
adversely affected by the controversy was later achieved by an exercise in
‘positive comity’ involving a series of agreements between the parties 26 . The
political aspects, however, were to reach new heights, even becoming a
regular feature in the UN General Assembly agenda 27 , before a mutually re-
straining compromise was reached 28 .
23
For an overview see A.V. Lowe (ed.), Extraterritorial Jurisdiction (Grotius, Cambridge
1983); idem, The problems of extraterritorial jurisdiction: Economic sovereignty and the
search of a solution, 34 ICLQ 1985, pp. 724-746. For a discussion of such blocking statutes as
countermeasures see Linos-Alexandre Sicilianos, La codification des contre-mesures par la
Commission du droit international, 38 RBDI 2005, pp. 447-500, at pp.463-465; H. Gherari &
S. Szurek (eds.), Sanctions unilatérales, mondialisation du commerce et ordre juridique
international. A propos des lois Helms-Burton et D’Amato-Kennedy (CEDIN, Paris 1998).
24
Thus ECJ, case 89/85, Ahlstrom Osakyhtio v. Commission, judgment of 27 September
1988, [1988] ECR 5193; Michael Akehurst, Decisions of the Court of Justice of the European
Communities in 1988, 59 BYBIL 1988, pp. 405-420, at pp. 415-419; D. Lange & J.B. Sandage,
The Wood Pulp decision and its implications for the scope of EC Competition Law, 26 CMLR
1989, pp. 137-165; Brigitte Stern, L’extraterritorialité revisitée: Où il est question des affaires
Alvarez-Machain, Pâte de bois et de quelques autres, AFDI 1992, pp. 239-313.
25
Council Regulation (EC) 2271/96 of 22 November 1996 protecting against the effects of
the extra-territorial application of legislation adopted by a third country, and actions based
thereon and resulting therefrom, OJ L 309, pp. 1-6, 29 November 1996; Joint Action 96/668/
CFSP of 22 November 1996 adopted by the Council on the basis of Articles J.3 and K.3 of the
Treaty on European Union concerning measures protecting against the effects of the extra-
territorial application of legislation adopted by a third country, and actions based thereon or
resulting therefrom, OJ L 309, p. 7, 29 November 1996; both available at <www.europa.eu>.
26
Agreement between the European Community and the United States concluded on 23
September 1991, 30 ILM 1991, p. 1487. Quashed by the ECJ, case C-327/91, French Repub-
lic v. Commission of the European Communities, [1994] ECR I-3641, it was reintroduced by
the Decision of the Council and the Commission of 10 April 1995 concerning the conclusion
of the Agreement between the European Communities and the Government of the United
States of America regarding the application of their competition laws, OJ L 95, pp. 45-52, 27
April 1995; and was supplemented on 4 June 1998 by the Agreement between the European
Communities and the Government of the United States of America on the application of posi-
tive comity principles in the enforcement of their competition laws, OJ L 173, pp. 28-31, 18
June 1998. See also J. Basedow, Souveraineté territoriale et globalisation des marchés: le
domaine d’application des lois contre la restriction de la concurrence, 264 RCADI 1997, pp.
9-178; Stefaan Smis & Kim Van Der Borcht, The EU-US compromise on the Helms-Burton
and D’Amato Acts, 93 AJIL 1999, pp. 227-236.
27
For the latest instalment see UN General Assembly Resolution 61/11, Necessity of end-
ing the economic, commercial and financial embargo imposed by the United States of America
against Cuba, UN Doc. A/Res/61/11, 5 December 2006, preambular paragraph 4: “Con-
cerned at the continued promulgation and application by Member States of laws and regula-
tions, such as that promulgated on 12 March 1996 known as the “Helms-Burton Act”, the ex-
traterritorial effects of which affect the sovereignty of other States, the legitimate interests of
The end of this particular episode did not deter any further irruptions of
extraterritoriality. Thus, in a typical example, the 2001 Patriot Act 29 author-
ised the US Government to seize funds held by a non-US bank in the United
States, if a customer account maintained overseas in the non-US bank is sub-
ject to forfeiture proceedings under the US money laundering legislation;
yet, the bank is still contractually liable to its depositor outside the United
States. The multiplication of such instances caused a reaction by the interna-
tional business community: In 2006 the International Chamber of Commerce
produced a Policy Statement on Extraterritoriality and Business, prepared
by a Task Force on Extraterritoriality, whereby it
“… encourages policy-makers, including legislators and regulators, as well as
courts, to recognise international comity and principles of moderation and re-
spect for other States’ interests when enacting legislation, enforcing rules or
otherwise exercising jurisdiction” 30 .
Nevertheless, the extent of the territorial jurisdiction does not coincide
with the territory of the State. Typically, it acquires a functional nature when
it extends to the contiguous zone, where the State can exercise jurisdiction in
relation to customs, fiscal, sanitary and immigration matters 31 ; or in order to
“protect objects of an archaeological and historical nature found at sea” 32 .
entities or persons under their jurisdiction and the freedom of trade and navigation”; available
at <www.un.org>.
28
Memorandum of Understanding between the European Union and the US concerning the
US Helms-Burton Act and the US Iran and Libya Sanctions Act, concluded on 11 April 1997,
whereby the application of the statute was suspended regarding European companies and con-
sequently the European Union dropped its case before the WTO against the US; 36 ILM 1997,
pp. 529-530.
29
Uniting and Strengthening America by providing appropriate tools required to intercept
and obstruct terrorism (USA Patriot Act) Act 2001, Pub.L. 107-56, as amended by the US Pa-
triot Improvement and Reauthorisation Act 2005; text available at <wais.access.gpo.gov>. For
the tip of the iceberg see Fletcher N. Baldwin, The rule of law, terrorism and countermeasures
including the USA Patriot Act of 2001, 16 Florida JIL 2004, pp. 43-87; Richard H. Seamon
& William Dylan Gardner, The Patriot Act and the wall between foreign intelligence and law
enforcement, 28 Harvard JLPP 2005, pp. 319-464.
30
International Chamber of Commerce, Policy Statement: Extraterritoriality & Business,
Recommendation no. 1, Document 103-33/5 Final, 13 July 2006, available at <www.iccwbo.org>
(emphasis in the original). See also at a similar attempt for a draft White Paper and recom-
mendations by the International Bar Association Task Force on Extraterritorial Jurisdiction,
dealing with extraterritoriality in the context of competition and antitrust, bribery and corrup-
tion, tort law, criminal law, securities and insolvency law; for the latest developments see
<www.ibanet.org>.
31
Article 33 LOSC.
32
Article 303 LOSC.
The State may also assert jurisdiction in the exclusive economic zone over
the exploration for and exploitation of the living and non-living resources,
including energy sources 33 ; over the establishment and use of artificial is-
lands and structures 34 , including exclusive and full civil and criminal juris-
diction over them irrespective of whether they are situated in the exclusive
economic zone 35 or the continental shelf 36 ; marine scientific research 37 ; and
the protection and preservation of the marine environment 38 .
It would be wrong, however, to assume that within its borders the State
can do as it likes: In spite of the general rule of article 2 paragraph 7 of the
UN Charter, the domestic jurisdiction of States is necessarily restricted by
considerations of international law, e.g. human rights protection rules or hu-
manitarian law concerns, let alone the contractual granting to or waiver of
rights in favour of another State 39 . Indeed, whether a particular issue falls
within the ambit of domestic jurisdiction is itself a question of international
law, as both the Permanent Court of International Justice 40 and the Interna-
tional Court of Justice 41 had occasion to affirm. Thus, the assumption of ju-
risdiction on the territoriality principle, although justly considered one of the
foundation stones of jurisdiction, remains far from unchallenged.
In contrast, the assertion of territorial jurisdiction in cases of enforcement
jurisdiction is universally accepted 42 – and in this respect the notorious dic-
tum in the S.S. Lotus case holds true:
33
Article 56 paragraph 1(a) LOSC.
34
Article 56 paragraph 1(b)(i) LOSC.
35
Article 60 LOSC.
36
Article 80 LOSC.
37
Article 56 paragraph 1(b)(ii) LOSC.
38
Article 56 paragraph 1(b)(iii) LOSC.
39
In a typical example, see the Convention implementing the Schengen Agreement of 14
June 1985 between the Governments of the States of the Benelux Economic Union, the Fed-
eral Republic of Germany and the French Republic on the gradual abolition of checks at their
common borders, OJ L 239, pp. 19-62, 22 September 2000; to which acceded Italy, ibid., pp.
63-68; Spain, ibid., pp. 69-75; Portugal, ibid, pp. 76-82; Greece, ibid., pp. 83-89; Austria,
ibid., pp. 90-96; Denmark, ibid., pp. 97-105; Finland, ibid., pp. 106-114; and Sweden, ibid.,
pp. 115-123.
40
Thus the advisory opinion in the Nationality Decrees in Tunis and Morocco case, PCIJ,
Ser. B, No. 4, 1923, pp. 7-32, at pp. 23-24; also available at <www.icj-cij.org>.
41
Thus Anglo-Norwegian Fisheries case, UK v. Norway, ICJ Reports 1951, pp. 116-144;
also available at <www.icj-cij.org>.
42
For the practical effects of the distinction see Federal Trade Commission v. Compagnie
de Saint-Gobain-Pont-à-Mousson, 20 ILM 1981, pp. 597-617; Conseil constitutionnel, décision
du 11 février 1982, JO 1982, p. 301; Geneviève Burdeau, La contribution des nationalisations
françaises de 1982 au droit international des nationalisations, RGDIP 1985, pp. 5-28. On the
other side of the coin, the rule ‘mala captus bene detentus’ seems to have acquired customary-
law status: Opinion of the US Supreme Court in the case of Alvarez-Machain, 112 S. Ct.
“the first and foremost restriction imposed by international law upon a State is
that – failing the existence of a permissive rule to the contrary – it may not ex-
ercise its power in any form in the territory of another State. In this sense ju-
risdiction is certainly territorial; it cannot be exercised by a State outside its
territory except by virtue of a permissive rule derived from international cus-
tom or from a convention.” 43
Such contractual arrangements are rather frequent in practice – and thus
the categorical character of exclusive jurisdiction assumed by the PCIJ has
certainly been mitigated. They include, typically, Status of Forces Agree-
ments (SOFA) 44 ; the rather more “traditional” form of cooperation – in the
words of the Eritrea-Ethiopia Boundary Commission 45 –: exchange of cus-
toms personnel 46 ; and even practical arrangements in occupied territories 47 .
Indeed, the whole idea of an ‘area of freedom, security and justice’ in the
European Union 48 is based on the mutual acceptance of each member State’s
2188, 31 ILM 1992, at pp. 900-952; Malvina Halberstam, In defence of the Supreme Court
decision in Alvarez-Machain, 86 AJIL 1992, pp. 736-746; Michael Glennon, State-sponsored
abduction: A comment on United States v. Alvarez Machain, ibid., pp. 746-756; Rosemary
Rayfuse, International abductions and the US Supreme Court: The law of the jungle reigns, 42
ICLQ 1993, pp. 882-897; Dominique Carreau, Droit international (7th ed., Pedone, Paris
2001) at p. 341, paragraph 845.
43
See supra note 3, at pp. 18-19.
44
See, for instance, the Agreement between the Parties to the North Atlantic Treaty regard-
ing the status of their forces, done on 19 June 1951, TIAS no. 2846. For a taste of the relevant
debate see Andrea Carlevaris, Recenti sviluppi nella prassi degli ‘Status-of-Forces Agree-
ments’ per le operazioni di peace-keeping delle Nationi Unite, 53 La comunità internazionale
1998, pp. 667-691; Yokaris, supra note 15, at pp. 42-43; John W. Egan, The future of crimi-
nal jurisdiction over the deployed American soldier. Four major trends in bilateral US Status-
of -Forces Agreements, 20 Emory ILR 2006, pp. 291-343.
45
Eritrea-Ethiopia Boundary Commission, Decision on the delimitation of the border be-
tween Eritrea and Ethiopia, 13 April 2002, paragraph 6.31, available at <www.pca-cpa.org>.
46
Thus the British and the French authorities in the Channel Tunnel under the Protocol
concerning Frontier Controls and Policing, Co-operation in Criminal Justice, Public Safety
and Mutual Assistance relating to the Channel Fixed Link, done on 25 November 1991;
documents available at Geoffrey Marston, UK materials in international law, 64 BYBIL 1993,
pp. 579-758, at pp. 647-648.
47
Thus under Annex I(b) on the Naharayim/Baqura area and Annex I(c) on the Zofar/Al-
Ghamr area of the 1994 Treaty of Peace between Israel and Jordan, 34 ILM 1995, pp. 46-66.
48
Gilles de Kerchove and Anne Weyembergh (eds.), L’espace pénal européen: Enjeux et
perspectives (Bruxelles 2002); Sionaidh Douglas-Scott, The rule of law in the European Un-
ion. Putting the security into the “area of freedom, security and justice”, 20 European LR
2004, 219-242; Neil Walker (ed.), Europe’s area of freedom, security and justice (Oxford
2004). The most prominent example of such parallel and overlapping jurisdiction is the Euro-
pean Arrest Warrant; Council Framework Decision 2002/584/JHA of 13 June 2002 on the
European Arrest Warrant and the surrender procedures between the member States, OJ L 190, p.
1, 18 July 2002, available at <www.europa.eu>. For the pros and cons of the system see, among
many others, Luisa Verucci, The European Arrest Warrant. An additional tool for prosecuting
jurisdiction over the territory of another – thus creating what I call a ‘mille-
feuille effect’ of parallel and overlapping jurisdiction. The same principle ap-
plies in the ‘area of shared responsibility’ in matters of transnational criminal
justice currently under development by the Council of Europe 49 .
It is also important to note that enforcement jurisdiction is also recognised
on the basis of actual control over territory, including control through the ac-
tions of State officials 50 . In view of the human rights obligations incumbent
upon all States, such extraterritorial jurisdiction may well evolve into a pow-
erful weapon allocating – or even redistributing – jurisdiction and its corol-
lary, State responsibility 51 .
2. NATIONALITY
The connection between the State and its nationals is one of the oldest le-
gal links. For long centuries jurisdiction applied to the person, wherever that
was to be found, rather than to a defined territory – indeed, traces of this per-
sonal jurisdiction may still be found in the case, common in civil law coun-
tries, where a national commits a criminal act abroad (active personality
principle). The contemporary manifestation of this possibility, long consid-
ered unthinkable in common law jurisdictions 52 , allows for the prosecution of
international crimes by the State of nationality of the perpetrator in lieu of
ICC crimes, 2 JICJ 2004, pp. 275-285; Nicola Vennemann, The European Arrest Warrant and
its human rights implications, 63 ZaöRV 2003, pp. 103-121; Alicia Pinajeros Parga, Bundes-
verfassungsgericht (German Constitutional Court) decision of 18 July 2005 (2 BvR 2236/04)
on the German European Arrest Warrant Law, 43 CMLR 2006, pp. 583-595.
49
See Committee of Experts on Transnational Justice (PC-TJ), Final Activity Report, 20
December 2005, Doc. PC-TJ (2005) 10, available at <www.coe.int/tcj>.
50
Thus ECHR, Loizidou v. Turkey (Preliminary Objections), Series A, No. 310, 1995, p.
20; Haritini Dipla, Responsabilité de l’État et droits de l’homme: L’arrêt de la Cour de
Strasbourg à l’affaire Loïzidou c. Turquie, 50 RHDI 1997, pp. 17-42; and ECHR, Bankovic v.
Belgium, judgment of 12 December 2001, paragraphs 63, 67 and 71, available at <www.echr.
coe.int>. See, in general, F. Coomans & M.T. Kamminga (eds.), Extraterritorial application
of human rights treaties (Intersentia, Antwerp/Oxford 2004); Morten Peschardt Pedersen,
Territorial jurisdiction in Article 1 of the European Convention on Human Rights, 73 Nordic
JIL 2004, pp. 279-305; Theodor Meron, Extra-territoriality of human rights treaties, 89 AJIL
1995, pp. 78-82; G. Cohen-Jonathan, La territorialisation de la juridiction de la Cour
Européenne des Droits de l’Homme, 13 Revue trimestrielle des Droits de l’homme 2002, pp.
1069-1082. For the earlier doctrine see G.W. Keeton, Extraterritoriality in international and
comparative law, 72 RCADI 1949-I, pp. 287-391.
51
Thus Max Huber, arbitrator, in PCA, Isle of Palmas arbitration, USA v. The Netherlands, 4
April 1928, 2 UNRIAA 830; also available at <www.haguejusticeportal.net>.
52
See, however, Paul Arnell, The case for nationality-based jurisdiction, 50 ICLQ 2001,
pp. 955-962.
surrendering such individual to the International Criminal Court 53 and of ma-

jor criminal offences, including sex crimes committed abroad 54 ; and even serves
as the foundation for the criminalisation of active corruption urbi et orbi 55 .
Nationality confers upon a person rights and obligations towards the
State 56 . On the domestic level such rights and obligations include, typically,
the right to vote and the obligation to pay taxes and, traditionally, serve in
the army. On the international level, they include the obligation to conduct
oneself according to national laws and, most importantly, the right to diplo-
matic protection 57 . As the International Court of Justice put it in the Notte-
bohm case, nationality is
“a legal bond having in its basis a social fact of attachment, a genuine connec-
tion of existence, interests and sentiments, together with the existence of recip-
rocal rights and duties.” 58
Indeed, such is the importance of the nationality link for a person that the
right to a nationality is considered one of the core human rights, guaranteed
in a series of international instruments including the Universal Declaration of
53
Article 17 of the ICC Statute, adopted in Rome on 18 July 1998, UN Doc. A/Conf.183/9,
37 ILM 1998, at pp. 999-1069. On the principle of complementarity, in general, see John T.
Holmes, The principle of complementarity, in Roy S. Lee (ed.), The International Criminal
Court: Issues, negotiation, results (Kluwer, The Hague 1999) pp. 41-78; idem., Complemen-
tarity: National courts versus the International Criminal Court, in Antonio Cassese, Paola
Gaeta & John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A
commentary (vol. I, Oxford 2002) pp. 667-686; Sharon A. William, Commentary on Article
17, in Otto Triffterer (ed.), The Rome Statute of the International Criminal Court: Observers’
notes article by article (Nomos, Baden-Baden 1999) pp. 383 et seq., at pp. 385-392. See also
Elisabeth Lambert-Abdelgawad, Le dessaisissement des tribunaux nationaux au profit des
tribunaux pénaux internationaux: Un encadrement abusif par le droit international de
l’exercice de la compétence judiciaire interne?, RGDIP 2004, pp. 407-438.
54
Thus, for instance, in the UK the Sexual Offences (Conspiracy and Incitement) Act 1996
and the Sex Offenders Act 1997; both available at <www.opsi.gov.uk>.
55
Nationality jurisdiction being explicitly required by article 4 of the 1997 OECD Conven-
tion on Combating Bribery of Foreign Public Officials in International Business Transactions,
37 ILM 1998, pp. 1-11; also available at <www.oecd.org>. For an overview see Maria Ga-
vouneli, The international system of corruption control in I. Bantekas & G. Keramidas (eds.),
Financial Crime: The international and European legal approach (Butterworths, London
2006) pp. 180-200.
56
R. Donner, The regulation of nationality in International Law (2nd ed., New York
1995); J.F. Rezek, Le droit international de la nationalité, 198 RCADI 1986-III, pp. 333-400.
57
For the latest overview see Vasileios Pergantis, Towards a ‘humanization’ of diplomatic
protection?, 66 ZaöRV 2006, pp. 351-397. See also the Draft Articles on Diplomatic Protection
adopted by the ILC on first reading in 2004 (John Dugard, special rapporteur), Report on the
Work of the International Law Commission during its 56th session (2004), UN Doc. A/59/10,
General Assembly Official Records, Suppl. No. 10, Chapter IV, pp. 13-93, paragraphs 38-60,
at pp. 13-14, paragraphs 39-42, available at <www.un.org>.
58
The Nottebohm case, Liechtenstein v. Guatemala, ICJ Reports 1955, pp. 4-27, at p. 23.
Human Rights 59 , the 1966 International Covenant on Civil and Political Rights60 ,
the 1989 Convention on the Rights of the Child 61 and the 1997 European Con-
vention on Nationality 62 . The granting of nationality becomes thus an issue of
major importance – but it is one that international law typically relegates to
the domestic jurisdiction of States 63 ; in the words of the Permanent Court of
International Justice:
“In the present state of international law, questions of nationality are, in the
opinion of this Court, in principle within its reserved domain 64 .” 65
This absolute discretion has been qualified in practice, without never be-
ing negated in principle. Indeed, even in the Nottebohm case, where the In-
ternational Court of Justice talked about a ‘genuine and close connection’
between the individual and the State, the question was rather the compara-
tive value of the absence of any link with the nominal State of nationality
(Liechtenstein) and the existence of such a real link with the State of resi-
59
Article 15 UDHR, adopted by UN General Assembly Resolution 217A (1948), UN Doc.
A/810, available at <www.unhchr.ch>.
60
Article 24 ICCPR, adopted by UN General Assembly Resolution 2200A (XXI), UN
Doc. A/6316 (1966), 999 UNTS 171, available at <www.unhchr.ch>.
61
Article 7 of the International Convention on the Rights of the Child, adopted by UN
General Assembly Resolution 44/25, UN Doc. A/RES/44/25, 12 December 1989, available at
<www.unhchr.ch>.
62
Adopted in Strasbourg on 6 November 1997, ETS no. 166, available at <conven-
tions.coe.int>.
63
See also article 1 of the 1930 Hague Convention on certain questions relating to the Con-
flict of Nationality Laws: “It is for each State to determine under its own law who are its na-
tionals”; text available at <www.unhcr.org>. See also Paul Meyer, Droit international public
et droit international privé sous l’angle de la notion de compétence, RCDIP 1979, pp. 349-388
and pp. 537-583.
64
The notion of ‘domaine réservé’ carries an immense ideological baggage and an impres-
sive literature; see, among many others, Nicolas Politis, Le problème des limitations de la
souveraineté, RCADI 1925-I, pp. 5-117; L. Preuss, Article 2 paragraph 7 of the Charter of the
United Nations and matters of domestic jurisdiction, 74 RCADI 1949-I, pp. 553-653; Gaetano
Aranzio-Ruiz, Le domaine réservé, l’organisation internationale et le rapport entre droit inter-
national et droit interne, 125 RCADI 1990-IV, pp. 9-484; Carreau, supra note 42, at pp. 369-
375; Patrick Daillier & Alain Pellet, Droit international public (7th ed., LGDJ, Paris 2002)
pp. 438-448; Robert Kolb, Du domaine réservé. Réflexions sur la théorie de la compétence
nationale, RGDIP 2006, pp. 597-630. On the right or obligation of intervention see Mario Bettati,
Un droit d’ingérence?, RGDIP 1991, pp. 639-670; Simon Chesterman, Just war or just peace?
Humanitarian intervention and international law (Oxford 2001); Laurence Boisson de
Chazournes & Luigi Condorelli, De la ‘responsabilité de protéger’ ou d’une nouvelle parure
pour une notion déjà bien établie, 110 RGDIP 2006, pp. 11-18.
65
Nationality Decrees in Tunis and Morocco case, supra note 40, at p. 24; confirmed by
the ICJ on its advisory opinion on the Constitution of the Maritime Safety Committee of the
Inter-Governmental Maritime Consultative Organisation, ICJ Reports 1969, at p. 150.
dence (Guatemala) 66 . The Court confirmed the unfettered granting of nation-

ality, this time regarding corporations 67 , in the Barcelona Traction case 68 ,
where Canadian jurisdiction was affirmed on the basis of external links to
nationality, in this case the place where the company was incorporated and
had its registered offices, rather than the real links to its shareholders in Bel-
gium; and returned to the issue in the same spirit in the Elettronica Sicula
(ELSI) case 69 .
The genuine link requirement resurfaced in article 91 paragraph 1 of the
Law of the Sea Convention, where it is stated that
“[t]here must be a genuine link between the State and the ship” 70 .
It would be difficult, however, to find any practical obligation accruing upon
States as a result of this provision 71 – and all attempts to infuse some sub-
stance on this dead letter have miserably failed. The most important among
66
Thus also Lowe, supra note 2, at p. 341.
67
Practice has actually overturned the Court’s approach, as the whole system of protection
of foreign investment is based on the substantive effective control criterion rather than the
formal incorporation criterion; see, for instance, the 1965 Washington Convention on the Set-
tlement of Investment Disputes between States and Nationals of other States, available at
<www.worldbank.org/icsid>; or even the more than 1100 bilateral investment protection trea-
ties in existence; for the latest numbers see <www.worldbank.org/icsid/treaties>. See in gen-
eral Giorgio Sacerdoti, Bilateral treaties and multilateral instruments on investment protec-
tion, 269 RCADI 1997, pp. 255-463; J.W. Salacuse & N.P. Sullivan, An evaluation of bilat-
eral investment treaties and their grand bargain, 46 Harvard ILJ 2005, pp. 67-130.
68
Case concerning the Barcelona Traction, Light and Power Company Limited, Belgium
v. Spain, Second Phase, ICJ Reports 1970, pp. 3-53, at p. 42. On the defunct nature of the
precedent see Francisco Orrego Vicuña, International dispute settlement in an evolving global
society: Constitutionalisation, accessibility, privatisation (Cambridge 2004) at p. 42.
69
ICJ, Elettronica Sicula S.p.A. (ELSI), USA v. Italy, judgment of 20 July 1989, available
at <www.icj-cij.org>; P. Juillard, L’arrêt de la Cour Internationale de Justice (chambre) du 20
juillet 1989: L’affaire de l’Elettronica Sicula (États-Unis/Italie), Procès sur un traité ou procès
d’un traité?, AFDI 1989, pp. 276-297; B. Stern, La protection diplomatique des investissements
internationaux. De Barcelona Traction à Elettronica Sicula ou les glissements progressifs de
l’analyse, JDI 1990, pp. 897-948.
70
It was also present in article 5 of the 1958 Geneva Convention on the High Seas, supra
note 3.
71
See, among others, Robin Churchill (with Christopher Hedley), The meaning of the
‘genuine link’ requirement in relation to the nationality of ships, A study prepared for the In-
ternational Transport Workers’ Federation, October 2000; Alex Oude Elferink, The genuine
link concept: Time for a post mortem?, in I.F. Dekker & H.H.G. Post (eds.), On the founda-
tions and sources of International Law (T.M.C. Asser Press, The Hague 2003) pp. 41-63;
Maria Gavouneli, From uniformity to fragmentation? The ability of the UN Convention on
the Law of the Sea to accommodate new uses and challenges, in A. Strati, M. Gavouneli & N.
Skourtos (eds.), Unresolved Issues and New Challenges to the Law of the Sea (Martinus Ni-
jhoff, Leiden/Boston 2006) pp. 205-233, at pp. 206-208.
them, the 1986 UN Convention on Conditions for Registration of Ships 72 ,

was a rather vague text which sought to found nationality requirements on
the level of participation in ownership or the manning of the ship; it never
entered into force.
As a result, it is the fact of registration itself that creates a permanent legal
relationship between the ship and the State, on the basis of which the latter
undertakes specific duties and obligations. Summarily set out in article 94 of
the LOS Convention, they include the obligation to effectively exercise juris-
diction or control in administrative, technical and social matters, from the
construction, equipment and seaworthiness of ships to the manning, labour
conditions and the training of crews on board. The quest for this effective
exercise of the flag State powers (all powers and not just administrative,
technical and social matters 73 ) has remained elusive – indeed, although it cer-
tainly constitutes a breach of an obligation under the Law of the Sea Con-
vention, nobody has ever attempted to bring a case before the International
Tribunal for the Law of the Sea on this matter 74 .
Correctly identifying the defective implementation of international and na-
tional rules, mostly by States with ‘flags of convenience’ 75 , as the primary
cause for ‘substandard shipping’ 76 , the UN General Assembly has estab-
72
26 ILM 1987, pp. 1229-1250. For a general overview see G. Kasoulides, The 1986 UN
Convention on the Conditions for the Registration of Vessels and the question of open regis-
try, 20 ODIL 1989, pp. 543-576; Djamchid Momtaz, La Convention des Nations Unies sur les
conditions de l’immatriculation des navires, AFDI 1986, pp. 715-736; M.L. McConnell, ‘Business
as usual’: An evaluation of the 1986 UN Convention on Conditions for Registration of Ships,
18 JMLC 1987, pp. 435-449; H. Wefers Bettink, Open registry, the genuine link and the 1986
Convention on Registration Condition for Ship, 18 NYBIL 1987, pp. 68-119.
73
Thus also Tullio Scovazzi, The evolution of international law of the sea: New issues,
new challenges, 286 RCADI 2000, pp. 39-243, at pp. 221-222.
74
Davis R. Robinson, Recourse against flag States for breaches of their international obli-
gations under the 1982 Law of the Sea Convention, in Myron N. Nordquist & John N. Moore
(eds.), Current marine environmental issues at the International Tribunal for the Law of the
Sea (Martinus Nijhoff, The Hague 2001) pp. 371-383.
75
The literature on the subject is immense. For a taste see Emmanuel Roucounas, Facteurs
privés et droit international public, 299 RCADI 2002, pp. 9-419, at pp. 205-207; G.
Athanassiou, Aspects juridiques de la concurrence maritime (Pedone, Paris 1996); K.X. Li &
J. Wonham, New developments in ship registration, 14 TIJMCL 1999, pp. 137-154.
76
Defined by the OECD Maritime Transport Committee as: “A vessel that, through its
physical condition, its operation or activities of its crew, fails to meet basic standards of sea-
worthiness and thereby poses a threat to life and/or the environment. This would be evidenced
by the failure of the vessel to meet regulations contained in international maritime conven-
tions to the extent that it would be considered unfit to sail by a reasonable flag State or port
State inspection”; OECD Maritime Transport Committee, Policy Statement on Substandard
Shipping, 2002, available at <www.oecd.org/dataoecd/18/37/2080990.pdf>. See also Mori-
taka Hayashi, Toward the elimination of substandard shipping: The Report of the Interna-
tional Committee of Shipping, 16 TIJMCL 2001, pp. 501-513.
lished a Consultative Group of Flag State Implementation 77 and continues to

call upon States to honour their obligations under international law in its an-
nual omnibus resolution on the law of the sea:
“Urges flag States without an effective maritime administration and appropri-
ate legal frameworks to establish or enhance the necessary infrastructure, legisla-
tive and enforcement capabilities to ensure effective compliance with, and imple-
mentation and enforcement of, their responsibilities under international law
and, until such action is undertaken, to consider declining the granting of the
right to fly their flag to new vessels, suspending their registry or not opening a
registry, and calls upon flag and port States to take all measures consistent with
international law necessary to prevent the operation of substandard vessels.” 78
Registration then remains the act whereby nationality is conveyed to the
ship; and it is generally agreed that each State remains free to set its own
conditions and standards for the granting of such nationality 79 . It was so con-
firmed by the International Tribunal for the Law of the Sea in the Saiga
case 80 , where the Tribunal further construed the need for a genuine link as a
guarantee for the effective implementation of the duties of the flag State 81 –
presumably in view of the complete and total uselessness of the notification
to the flag State required by article 94 paragraph 6 of the LOS Convention,
the only reference to the possibility that the flag State may not carry out fully
its obligations! Given that a breach of an obligation usually triggers the
mechanism of State responsibility 82 , the rather innocuous obligation to notify
77
For its most recent report, see UN Doc. A/59/63 (2004), available at <www.un.org>. See
also the rather disappointing results of the Report of the Ad Hoc Consultative Meeting of sen-
ior representatives of international organizations on the “genuine link”, convened by the
IMO on 7-8 July 2005 and discussed by the IMO Council at its 96th session on 19-23 June
2006; UN Doc. A/61/160, 17 July 2006; available at <www.un.org>.
78
Thus paragraph 71, UN General Assembly Resolution A/RES/61/222, Oceans and the
law of the sea, 16 March 2007, available at <www.un.org>.
79
Permanent Court of Arbitration, Muscat Dhows case, France v. UK, award of 8 August
1905, XI UNRIAA 92, also available at <www.haguejusticeportal.net>; Lauritzen v. Larsen,
345 US 571, 73 S Ct 921 (1953). See also the 1987 reflagging of Kuwaiti ships to the US and
the UK during the Iran-Iraq conflict; Shaw, supra note 9, at pp. 546-547; Myron H. Nordquist
& Margaret G. Wachenfeld, Legal aspects of reflagging Kuwaiti tankers and laying of mines
in the Persian Gulf, 31 GYBIL 1988, pp. 138-164.
80
ITLOS, The M/V Saiga (no. 2) case, Saint Vincent & the Grenadines v. Guinea, 1999,
paragraph 65, available at <www.itlos.org>; Bernard H. Oxman & Vincent Bantz, The M/V
Saiga (no.2), Saint Vincent & the Grenadines v. Guinea, Judgment, ITLOS case no. 2, 1 July
1999, 94 AJIL 2000, pp. 140-150.
81
Ibid., paragraph 83. See also David Anderson, Freedoms of the high seas in the modern
law of the sea, in David Freestone, Richard Barnes & David Ong (eds.), The Law of the Sea.
Progress and prospects (Oxford 2006) pp. 327-346, at pp. 332-340.
82
Articles 1 and 42 of the Articles on State Responsibility (ASR), approved by UN General
Assembly resolution 56/83, UN Doc. /RES/56/83 (2001), text available at <www.un.org.>; see
the flag State, without any further droit de regard onto the follow-up to the
case in question, could at best be considered a non-compliance provision in
nascent form.
The question of genuine link figured also in The Grand Prince case 83 with
equally meagre results. Although both Judge (and currently President) Wolfrum
in his Statement 84 and Judge Treves in his Separate Opinion 85 tried to dis-
tance themselves from the mechanical equation of registration as evidence of
genuine link, the Tribunal was generally content to accept the formal act of
registration as sufficient evidence of a genuine link between the ship and the
State; and derive therefrom an affirmation of jurisdiction 86 .
In another context, equally happy to view registration as evidence of the
‘real financial link’ with the flag State is the Court of Justice of the European
Communities 87 , holding further that construction in conformity with both the
Law of the Sea Convention and the 1986 UN Registration Convention.
3. UNIVERSALITY
In a world of finely partitioned allocations of jurisdiction, there is still am-

ble possibility to avoid prosecution and punishment by moving in territories
where the State is unwilling or unable to exercise its powers or simply where
the writ of no State applies. Absent the traditional bases of jurisdiction, i.e.
territoriality and nationality, the universality principle allows for the asser-
tion of jurisdiction in circumstances where the crime was not perpetrated by
or against a national of the State away from its territory without any impact
upon it or the security of the State. It seems that such was the historical rea-
James Crawford, The International Law Commission’s Articles on State Responsibility. Intro-
duction, text and commentaries (Cambridge 2002).
83
ITLOS, The Grand Prince, Belize v. France, 2001, available at <www.itlos.org>; Ber-
nard H. Oxman & Vincent P. Bantz, The Grand Prince, International Tribunal for the Law of
the Sea decision on requirement that application for prompt release of a vessel be brought by
or on behalf of the flag State, 96 AJIL 2002, pp. 219-224; Nathalie Ros, La France, le TIDM
et les légines: Acte III. À propos de l’arrêt rendu le 20 avril 2001 dans l’‘affaire du Grand
Prince’, 5 ADM 2000, pp. 245-284; Paolo Palchetti, Sul rapporto tra la procedura di pronta li-
berazione di navi ed equipaggi e i procedimenti davanti ai giudici interni dello Stato costiero:
il caso della nave Grand Prince, RDI 2001, pp. 745-749; Tullio Treves, Flags of convenience
before the Law of the Sea Tribunal, 6 San Diego ILJ 2004, pp. 179-189.
84
Ibid., paragraph 3 of the Declaration: “… the registration cannot be reduced to a mere
fiction … – an empty shell”.
85
Ibid., paragraph 2 of the Separate Opinion: “It is an artificial creation, a fiction…”; ibid.
86
Ibid., paragraph 77 of the judgment.
87
ECJ, case C-62/96, Commission v. Greece, judgment of 27 November 1997, point 22,
available at <www.curia.eu>.
son for the first application of the principle on marauding vagabondi in the
late Middle Ages 88 . The rationale behind this stop-gap jurisdiction remains,
therefore, deeply pragmatic – in the words of Georges Abi-Saab:
“Universal jurisdiction has been a jurisdiction of last resort, a fail-safe solution
called for by urgency and necessity” 89 .
The value-oriented approach, citing a moral repugnance for crimes beyond
the ‘ordinary’, seems to have been a glossa added later in order to reinforce
the need for further action – and it was in this exceptional spirit that Grotius
affirmed that
“[k]ings …have the right of demanding punishments not only on account of in-
juries committed against themselves or their subjects, but also on account of
injuries which do not directly affect them but excessively violate the law of na-
ture or of nations in regard of any persons whatsoever”90 .
The qualification present in this passage gave rise to the pure ‘mandatory’
form of universal jurisdiction 91 , according to which each State assumes juris-
diction and consequently must prosecute all offences generally recognised as
of universal concern, regardless of where the offence took place or who the
perpetrator or the victims were 92 .
However, this ‘unilateral limited universality principle’ 93 is distinguished
from the ‘co-operative limited universality principle’ 94 , which confers upon
the State the right rather than the obligation (may instead of must) to prose-
cute; in such a situation Grotius was quite categorical:
88
Géraud de La Pradelle, La compétence universelle, in Hervé Ascensio, Emmanuel
Decaux & Alain Pellet (sous la direction de), Droit international pénal (Pedone, Paris 2000)
pp. 905-918, at pp. 906-907.
89
Georges Abi-Saab, The proper role of universal jurisdiction, 1 JICJ 2003, pp. 596-602,
at p. 600.
90
See Hugo Grotius, De iure belli ac pacis (as translated by A.C. Campbell, London
1814), book II, chapter XX, §XL, 1, <www.constitution.org/gro/djbp.htm>.
91
Apparently, the term was first used by Willard B. Cowles, Universal jurisdiction over
war crimes, 33 California LR 1945, pp. 177-218.
92
Bruce Broomhall, International Justice and the International Criminal Court. Between
sovereignty and the rule of law (Oxford 2003) at p. 106.
93
To use the terminology of Luc Reydams, Universal Jurisdiction: International and mu-
nicipal legal perspectives (Oxford 2003) at pp. 38-42. For an overview see H. Donnedieu de
Vabres, Les principes modernes du droit pénal international (Sirey, Paris 1928); M. Henzelin,
Le principe de l’universalité en droit pénal international (Helbing & Lichtenhahn-Bruylant,
Basel, Geneva & Brussels 2000); K.C. Randall, Universal jurisdiction under international law,
66 Texas LR 1988, pp. 785-842; contra: Rosalyn Higgins, Problems and process: Interna-
tional Law and how we use it (Oxford 1994) at p. 62.
94
Reydams, supra, at pp. 35-38.
“Alterum facere debeat, aut ut ipsa interpellata pro merito puniat nocentem, aut
ut eum permittat arbitratio interpellantis.”95
It seems that this approach is both closer to the historical antecedents of
the concept and surprisingly modern. Most treaties providing for universal
jurisdiction today typically define a crime and then oblige all States parties
either to investigate and eventually prosecute or, in an expression of civitas
maxima, to extradite the suspect to a State willing to do so (aut dedere aut
iudicare) 96 . Indeed, a survey of 276 conventions, concluded in the two centu-
ries between 1815 and 1999 97 , and comprising 27 categories of crime 98 re-
vealed only a handful of agreements that clearly provide for the ‘pure’ form of
universal jurisdiction; in other words, jurisdiction based exclusively on the na-
ture of the crime and carried out by the forum State in the guise of an actio
popularis on behalf of the international community 99 in order to safeguard
the interests of that same international community by ensuring accountability
95
“It should either punish the guilty person as he deserves, or it should entrust him to the
discretion of the party making the appeal”; supra note 90, book II, chapter XXI, §IV, 1.
96
M. Cherif Bassiouni & Edward M. Wise, Aut dedere aut iudicare: The duty to prosecute
or extradite in international law (Martinus Nijhoff, 1995).
97
One could certainly expect this number to have increased, especially in view of the anti-
terrorism conventions adopted since 2001; among them, the International Convention for the
Suppression of the Financing of Terrorism, adopted by General Assembly Resolution 54/109
of 9 December 1999; the International Convention for the Suppression of Acts of Nuclear
Terrorism, adopted by General Assembly Resolution 59/290 of 13 April 2005, both available
at <www.un.org>; the Protocol amending the European Convention on the Suppression of
Terrorism, ETS no. 190, adopted in Strasbourg, on 15 May 2003; the Council of Europe Con-
vention on the Prevention of Terrorism, CETS no. 196, adopted at Warsaw on 16 May 2005;
and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of
the Proceeds from Crime and on the Financing of Terrorism, CETS no. 198, adopted at War-
saw on 16 May 2005, all available at <www.coe.int>.
98
Such international crimes are: aggression, genocide, crimes against humanity, war
crimes, crimes against the UN and associated personnel, unlawful possession and/or use of
certain weapons, theft of nuclear materials, mercenarism, apartheid, slavery and slave-related
practices, torture, unlawful human experimentation, piracy, aircraft hijacking, unlawful acts
against civil maritime navigation, unlawful acts against internationally protected persons, tak-
ing of civilian hostages, unlawful use of the mail, nuclear terrorism, financing of international
terrorism, unlawful traffic in drugs and dangerous substances, destruction and/or theft of na-
tional treasures and cultural heritage, unlawful acts against the environment, international
traffic in obscene materials, falsification and counterfeiting of currency, unlawful interference
with submarine cables and bribery of foreign public officials; M. Cherif Bassiouni, Universal
jurisdiction for international crimes: Historical perspectives and contemporary practice, 42
Virginia JIL 2001, pp. 81-162, at p. 107.
99
For a thorough discussion of the (possible) operation of actio popularis in the interna-
tional community see François Voeffray, L’actio popularis ou la défense de l’intérêt collectif
devant les juridictions internationales (PUF, Paris 2004), especially at pp. 364-374.
for the perpetration of certain categories of crimes, both expressly identified

in number and particularly grave in character 100 .
In spite of the support seemingly offered to this variety of universal juris-
diction in the Arrest Warrant case101 by Judges Rosalyn Higgins, Kooijmans
and Buergenthal in their joint Separate Opinion 102 , practical examples are few
and difficult to come by. Although it failed to address the legal status of the
principle of universal jurisdiction (pure or conditional 103 ) 104 , leaving 11 of the
15 judges to issue different pronouncements on the matter, the Court found
the Belgian statute on universal jurisdiction 105 in breach of the traditional
rules on the allocation of jurisdiction. President Guillaume, in particular, was
categorical that
“universal jurisdiction in absentia is unknown to international law” 106 ;
100
Bassiouni, supra note 98, at pp. 88-89; Roger O’Keefe, Universal jurisdiction, Clarify-
ing the basic concept, 2 JICJ 2004, pp. 737-760, at pp. 752-759. See also American Law In-
stitute, The Restatement (Third) of Foreign Relations Law of the United States (1987) §403.
101
Arrest Warrant of 11 April 2000, Democratic Republic of Congo v. Belgium, ICJ Re-
ports 2002, available at <www.icj-cij.org>; see also Alexander Orakhelashvili, Arrest Warrant
of 11 April 2000, Democratic Republic of Congo v. Belgium, ICJ, 14 February 2002, 96 AJIL
2002, pp. 677-684. The matter will also be discussed in the case of Certain Criminal Proceed-
ings in France, Congo v. France, referring to an alleged “violation of the principle that a State
may not, in breach of the principle of sovereign equality among all Members of the United
Nations, as laid down in Article 2, paragraph 1, of the Charter of the United Nations, exercise
its authority on the territory of another State, by unilaterally attributing to itself universal ju-
risdiction in criminal matters”; a request for provisional measures was denied on other
grounds, ibid., ICJ Reports 2003, available at <www.icj-cij.org>.
102
Arrest Warrant of 11 April 2000, supra, Joint Separate Opinion of Judges Higgins,
Kooijmans and Buergenthal, paragraphs 39 and 41.
103
According to the distinction by Antonio Cassese, International Criminal Law (Oxford
2003) pp. 284-291.
104
M. Henzelin, La compétence pénale universelle. Une question non résolue par l’arrêt
Yerodia, 106 RGDIP 2002, pp. 819- 854. See also Antonio Cassese, Is the bell tolling for uni-
versality? A plea for a sensible notion of universal jurisdiction, 1 JICJ 2003, pp. 589-595.
105
Loi du 16 juin 1993 relative à la répression des infractions graves aux conventions
internationales de Genève du 12 août 1949 et aux protocoles I et II du 8 juin 1977 additionnels à
ces conventions, Moniteur belge, 5 août 1993; as amended by la Loi du 10 février 1999 relative
à la répression des violations graves de droit international humanitaire, Moniteur belge, 23
mars 1999, 38 ILM 1999, pp. 918-925; Leen De Smet & Frederik Naert, Making or breaking
international law? An international law analysis of Belgium’s Act concerning the punishment
of grave breaches of international humanitarian law, RBDI 2002, pp. 471-511; Luc Reydams,
Belgium reneges on universality: The 5 August 2003 Act on grave breaches of international
humanitarian law, 1 JICJ 2003, pp. 679-689; Maria-Eugenia López-Jacoiste Díaz, Comentarios
a la ley belga de jurisdicción universal para el castigo de las violaciones graves del derecho
internacional humanitario, reformada el 23 de abril de 2003, 35 REDI 2003, pp. 839-648.
106
Arrest Warrant of 11 April 2000, supra note 101, Separate Opinion of President Guil-
laume, paragraphs 16, 12 and 9 in fine.
a statement true enough, provided one does consider, as the Spanish Consti-
tutional Court did in the Guatemalan Generals case 107 , that the physical pres-
ence of the accused in the territory of the forum State constitutes a mere pro-
cedural requirement, a conditio locus deprehensionis, for conducting a criminal
trial rather than instigating a criminal investigation. Indeed, summarising the
status of the principle in contemporary law, he concluded:
“In other words, international law knows only one true case of universal jurisdic-
tion: piracy. Further, a number of international conventions provide for the es-
tablishment of subsidiary universal jurisdiction for purposes of the trial of cer-
tain offenders arrested on national territory and not extradited to a foreign coun-
try.” 108
It is quite clear from this onslaught 109 , undoubtedly destined to redress the
balance disturbed by a series of prosecutions of current and former, nominal
and factual heads of states before domestic courts 110 , that little space is left to
107
Tribunal constitucional, resolución no. STC 237/2005 de 26 septiembre 2005, <www.
tribunalconstitucional.es>; Naomi Roht-Arriaza, Guatemala Genocide case, judgment no.
STC 237/2005, Constitutional Tribunal (second chamber), 26 September 2005, 100 AJIL
2006, pp. 207-213; Hervé Ascensio, Are Spanish courts backing down on universality? The
Supreme Tribunal’s decision in Guatemalan Generals, 1 JICJ 2003, pp. 690-702, at p. 700;
idem., The Spanish Constitutional Tribunal’s decision in Guatemalan Generals. Uncondi-
tional universality is back, 4 JICJ 2006, pp. 586-594.
108
Separate Opinion of President Guillaume, supra note 101, paragraph 12 in fine.
109
Antonio Cassese, When may senior State officials be tried for international crimes?
Some comments on the Congo v. Belgium case, 13 EJIL 2002, pp. 853-875; Steffen Wirth,
Immunity for core crimes? The ICJ’s judgement in the Congo v. Belgium case, ibid., pp. 877-
893; Marco Sassoli, L’arrêt Yerodia: Quelques remarques sue une affaire au point de collision
entre les deux couches du droit international, RGDIP 2002, pp. 791-817; Joe Verhoeven,
Quelques réflexions sur l’affaire relative au mandat d’arrêt du 11 avril 2000, RBDI 2002, pp.
531-536; Philippe Sands, What is the ICJ for?, ibid., pp. 537-545; Jean-Pierre Cot, Éloge de
l’indécision. La Cour et la compétence universelle, ibid., pp. 546-553; Beatrice Bonafè, Imputa-
zione all’individuo di crimini internazionali e immunità dell’organo, RDI 2004, pp. 393-426.
110
Thus in the Pinochet case: House of Lords, R. v. Bow Street Stipendiary Magistrate and
others ex parte Pinochet Ugarte (Amnesty International and others intervening) (no. 3),
judgment of 24 March 1999, available at <www.parliament.the-stationary-office.uk>; Michel
Cosnard, Quelques observations sue les décisions de la Chambre des Lords du 25 novembre
1998 et du 24 mars 1999 dans l’affaire Pinochet, RGDIP 1999, pp. 309-328; Andrea Bianchi,
Immunity versus human rights: The Pinochet case, 10 EJIL 1999, pp. 237-277; Anne Weyem-
bergh, Sur l’ordonnance du juge d’instruction Vandermeersch rendue dans l’affaire Pinochet
le 6 novembre 1998, RBDI 1999, pp. 178-204; Ruth Wedgwood, International Criminal Law
and Augusto Pinochet, 40 Virginia JIL 2000, pp. 829-847. In the Qaddafi case, Cour de cass-
ation, arrêt du 13 mars 2001, RGDIP 2001, 473-491; S. Zappalà, Do heads of State in office
enjoy immunity from jurisdiction for international crimes? The Ghaddafi case before the
French Cour de cassation, 12 EJIL 2001, pp. 595-612; Carlo Santulli, Coutume international et
juge international : qui peut quoi? A propos de l’immunité du chef d’État étranger dans l’affaire
Kadhafi, JDI 2002, pp. 805-813. In the Sharon case, Abbas Hijazi et al. v. Sharon et al., Cour de
cassation belge, décision du 12 février 2003, available at <www.cass.be/juris>; A. Cassese,
the notion of universal jurisdiction available as a matter of customary law to

crimenes iure cogens 111 .
In addition to a variety of academic initiatives on universal jurisdiction 112 ,
already in the 1996 Draft Code of Crimes Against the Peace and Security of
Mankind, the International Law Commission suggested that genocide,
crimes against humanity, crimes against the United Nations and associated
personnel and war crimes be subject to universal jurisdiction 113 . The 1998
Rome Statute to the International Criminal Court did not affect the possible
universal jurisdiction applicable on genocide, crimes against humanity, war
crimes and aggression, the offences falling within its ambit 114 – although the
total lack of any reference to universal jurisdiction may well have an impact
upon the priority of national courts under the principle of complementarity
under article 17 of the ICC Statute 115 . The International Law Association
The Belgian Court of Cassation v. the International Court of Justice: The Sharon and others
case, 1 JICJ 2003, pp. 437-452. See also Paola Gaeta, Ratione materiae immunities of former
heads of State and international crimes: The Hissène Habré case, 1 JICJ 2003, pp. 186-196.
111
Having appeared for the first time in the Dissenting Opinion of Judge Schucking in the
Oscar Chinn case, PCIJ, Series A/B, no. 63, 1923, pp. 149-150, the notion of ius cogens has
generated a vast bibliography, among which see Lauri Hannikainen, Peremptory norms (ius
cogens) in international law. Historical development, criteria, present status (Helsinki 1988);
Maurizio Ragazzi, The concept of international obligations erga omnes (Clarendon Press, Ox-
ford 1997); Antonio Gómez Robledo, Le ius cogens international: sa genèse, sa nature, ses fonc-
tions, 172 RCADI 1981-V, pp. 9-217; Robert Kolb, Théorie du ius cogens international, 36
RBDI 2003, pp. 5-55; Pierre Klein, Responsibility for serious breaches of obligations deriving
from peremptory norms of international law and UN law, 13 EJIL 2002, pp. 1241-1255;
Alexander Orekhelashvili, Peremptory norms in international law (Oxford 2006).
112
Among them the Princeton Principles on Universal Jurisdiction, adopted in 2002,
available at <www.princeton.edu/~lapa/unive-jur.pdf>; the Redress Universal Jurisdiction
Project; available at <www.redress.org>; the Amnesty International projects on Universal ju-
risdiction: The duty of States to enact and implement legislation, AI Index IOR 53/002/2001,
and on Universal Jurisdiction: 14 Principles on the Effective Exercise of Universal Jurisdiction,
AI Index IOR 53/01/99, 1999, both available at <www.amenstyinternational.org>; the Africa
Legal Aid project on The Cairo-Arusha Principles on Universal Jurisdiction in Respect of
Gross Human Rights Offences, 2002, available at <www.kituochakatiba.co.ug/cairo-arusha.htm>.
113
Report of the International Law Commission on the work of its forty-eighth session, UN
Doc. A/51/10, paragraph 50, available at <www.un.org>.
114
Article 4 of the ICC Statute; supra note 53; Louise Arbour, Will the ICC have a impact
on universal jurisdiction?, 1 JICJ 2003, pp. 585-588. Note, however, that not all the crimes
under the ICC Statute are considered as crimes of universal jurisdiction under customary in-
ternational law: Dapo Akande, The jurisdiction of the International Criminal Court over na-
tionals of non-parties: Legal basis and limits, 1 JICJ 2003, pp. 618-650, at pp. 621, 639;
Christian Tomuschat, Issues of universal jurisdiction in the Scilingo case, 3 JICJ 2005, pp.
1074-1081.
115
See, instead of many others, Federica Gioia, State sovereignty, jurisdiction and ‘modern
international law’: The principle of complementarity in the International Criminal Court, 19
Committee on International Human Rights Law and Practice in its study on

Universal Jurisdiction 116 affirmed the existence of a permissive customary
universal jurisdiction for the crimes of genocide, crimes against humanity
and war crimes, as defined in articles 6-8 of the ICC Statute, as well as the
crime of torture, as defined in the UN Convention against Torture 117 . It was
particularly careful, on the other hand, to note that such universal jurisdiction
becomes mandatory for States parties to the Geneva Conventions 118 and the
UN Convention against Torture in cases of grave breaches thereof 119 . As to
the Institut de droit international, it adopted during its 2005 Krakow session
a resolution on Universal criminal jurisdiction with regard to the crime of
genocide, crimes against humanity and war crimes 120 , thus clearly indicating
its preference on the scope of the principle.
It follows that there exists a distinction between treaty-based universal ju-
risdiction, which is almost always mandatory 121 , whereas it seems that the
customary form of universal jurisdiction is always permissive. The typical
example of such permissive customary universal jurisdiction, even when
contractually codified 122 , remains the archetypal crimen iure gentium, piracy.
Leiden JIL 2006, pp. 1095-1123; Olympia Bekou & Robert Cryer, The International Criminal
Court and universal jurisdiction: A close encounter?, 56 ICLQ 2007, pp. 49-68.
116
ILA, Report of the Sixty-Ninth Conference held in London (London 2000) pp. 403-431,
at pp. 406-407.
117
Article 1 of the 1984 UN Convention against Torture and Other Cruel or Inhuman or
Degrading Treatment of Punishment, adopted by General Assembly Resolution 39/46, 1465
UNTS 85, 23 ILM 1984, pp. 1027-1037.
118
See article 49 of the 1949 Geneva Convention for the amelioration of the condition of
the wounded and sick in armed forces in the field (Geneva I), 75 UNTS 31; article 50 of the
1949 Geneva Convention for the amelioration of the condition of wounded, sick and ship-
wrecked members of armed forces at sea (Geneva II), 75 UNTS 85; article 129 of the 1949
Geneva Convention relative to the treatment of prisoners of war (Geneva III), 75 UNTS 135;
and article 146 of the 1949 Geneva Convention relative to the protection of civilian persons in
time of war (Geneva IV), 75 UNTS 287.
119
ILA Report, supra note 116, at p. 423. Note, however, that under article 7 of the UN
Torture Convention a State is only obligated to prosecute persons already in its territory
whereas under the Geneva Conventions States have a duty to seek out perpetrators of such of-
fences even if they are outside their territory; ibid., at p. 410.
120
Institut de droit international, Resolution on Universal criminal jurisdiction with regard
to the crime of genocide, crimes against humanity and war crimes, 17th Commission, Chris-
tian Tomuschat, rapporteur, Session of Krakow, 2005, <www.idi-iil.org/idiE/resolutionsE>; see
also Claus Kreß, Universal jurisdiction over international crimes and the Institut de droit inter-
national, 4 JICJ 2006, pp. 561-585.
121
Indeed, there seems to be an exception of permissive jurisdiction in article 5 of the 1973
International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015
UNTS 243; see Broomhall, supra note 92, at p. 107, fn.6.
122
See article 105 LOSC.
It seems that pirates were labelled ‘hostis humani generis’ 123 at about the
same time as the freedom of the high seas became the primary rule of the
law of the sea – the rising power of the flag State at an open sea clearly ne-
cessitated a universal deterrent against those who could potentially upset the
balance of interests thus achieved. The first domestic statutes captured the
spirit of an international crime 124 , later to acquire constitutional status in the
US Constitution 125 . The universal jurisdiction rule was already considered of
long standing when it made its first appearance in international instruments 126
and was finally codified late in the 20th century in article 19 of the 1958 Ge-
neva Convention on the High Seas 127 , to be repeated almost verbatim in arti-
cle 105 of the Law of the Sea Convention.
Although there are credible doubts nowadays as to whether the justifica-
tion for universal jurisdiction in cases of piracy remains valid 128 , piracy con-
tinues to be today a serious problem in the waters of western Africa and es-
pecially South-East Asia 129 – with the ensuing need to reinforce international
123
The words belong to Emerich de Vattel, Le droit des gens ou les principes de la loi
naturelle appliqués à la conduite et aux affaires des Nations et des Souverains (1758); but the
approach is recurrent in the works of both Alberigo Gentili, De iure bellicis Libri tres (1612);
and Balthasar de Ayala, De jure et officiis bellicis et disciplina militari (1581). For the his-
torical development of the regulation of piracy see V. Pella, La répression de la piraterie, 15
RCADI 1926, pp. 149-275; Alfred P. Rubin, The Law of Piracy (2nd ed., New York 1997).
For an entertaining account see Jacob Sundberg, The crime of piracy, in M. Cherif Bassiouni
(ed.), International Criminal Law, vol. I: Crimes (New York 1998) pp. 441-454.
124
Thus see in England the Offences at Sea Act (1536) 28 Hen. 8, ch. 15; or the Bounty
Act (1825) 6 Geo. 4, ch. 49. See also In re Piracy Iure Gentium [1934] AC 586.
125
Thus reads article I, Section 8 cl. 10 of the US Constitution: “The Congress shall have
power …[t]o define and punish Piracies and Felonies committed on the High Seas and Of-
fences against the Law of Nations”. See also United States v. Furlong, 18 US (5 Wheaton)
184 (1820), with an express reference to the term ‘universal jurisdiction’, as quoted by Kan-
torovich, infra note 128, pp. 228-229.
126
Thus in article 21, Jay’s Treaty, 19 November 1794, 8 Stat. 116, 12 Bevans 13, at p. 27.
127
Article 19 of the High Seas Convention states: “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
taken by piracy and under the control of pirates and arrest the persons and seize the property
on board. The courts of the State which carried out the seizure may decide upon the penalties
to be imposed and may also determine the action to be taken with regard to the property, sub-
ject to the rights of third states acting in good faith” (my emphasis); supra note 3.
128
For the limitations of the concept see Eugene Kontorovich, The piracy analogy: Modern
universal jurisdiction’s hollow foundation, 45 Harvard ILJ 2004, pp. 183-237; Joshua Mi-
chael Goodwin, Universal jurisdiction and the pirate: Time for an old couple to part, 39 Van-
derbilt J Transn’l L 2006, pp. 973-1011.
129
The Regional Piracy Centre of the International Maritime Bureau with the International
Chamber of Commerce keeps track of the situation; for the latest data see <www.iccwbo.org/
iccimb>. See also José Luis Jesus, Protection of foreign ships against piracy and terrorism at
sea: Legal aspects, 18 TIJMCL 2003, pp. 363-400, at pp. 364-373.
commitments and increase regional cooperation 130 . Indeed the International

Maritime Organisation (IMO) adopted in November 2001 a Code of Practice
for the Investigation of the Crimes of Piracy and Armed Robbery Against
Ships 131 as well as Measures to prevent the registration of phantom ships 132 .
Universal jurisdiction, however, attaches only to the strict definition of pi-
racy contained in article 101 of the LOS Convention: an attack by the crew
or passengers of a ship and directed towards another ship in the high seas for
private ends. Consequently, acts of violence involving only one ship, such as
the seizure of the Italian liner Achille Lauro in 1985 133 or the uprising aboard
the Portuguese ship Santa Maria in 1961 134 do not amount to piracy iure
gentium. The general category of offences against the safety of shipping, in-
cluding the seizure of ships and acts of violence against persons on board or
damage to the ship, its cargo or equipment in a manner endangering safe
navigation are dealt with in the IMO 1988 Convention for the Suppression of
Unlawful Acts against the Safety of Maritime Navigation (the SUA Conven-
tion) 135 , which does not provide for universal jurisdiction.
Interestingly enough and contrary to popular belief, neither slavery and
slave related practices nor drug trafficking are covered by universal jurisdic-
130
For the latest example see the Regional Cooperation Agreement on combating piracy
and armed robbery against ships in Asia, concluded on 28 April 2005, 44 ILM 2005, pp. 829-
835, with introductory note by Moritaka Hayashi, ibid., pp. 826-828; Kuala Lumpur State-
ment on enhancement of safety, security and environmental protection in the Straits of Ma-
lacca and Singapore, 20 September 2006, annexed to identical letters dated 15 November
2006 from the representatives of Indonesia, Malaysia and Singapore to the UN addressed to
the Secretary-General, Doc. A/61/584, 17 November 2006; text available at <www.un.org>.
See also Timothy H. Goodman, “Leaving the Corsair’s name to other times”: How to enforce
the law of sea piracy in the 21st century through regional international agreements, 31 Case
Western JIL 1999, pp. 139-168; Robert C. Beckman, Combating piracy and armed robbery
against ships in Southeast Asia: the way forward, 33 ODIL 2002, pp. 317-341; Erik Barrios,
Casting a wider net: Addressing the maritime piracy problem in Southeast Asia, 28 Boston
College ICLR 2005, pp. 149-163; Nihan Ünlü, Protecting the Straits of Malacca and Singa-
pore against piracy and terrorism, 21 TIJMCL 2006, pp. 539-549.
131
Adopted by IMO Assembly Resolution A.922(22) of November 2001, available at
<www.imo.org>; see also Leticia Diaz & Barry Hart Dubner, On the problem of utilising uni-
lateral action to prevent acts of international piracy and terrorism: A proactive approach to the
evolution of international law, 12 Syracuse JICL 2004-2005, pp. 1-50, at p. 39.
132
Adopted by IMO Assembly Resolution A.923(22) of November 2001, ibid.
133
Malvina Halberstam, Terrorism on the high seas: The Achille Lauro, piracy and the
IMO Convention on Maritime Safety, 82 AJIL 1988, pp. 269-310; J.-P. Pancracio, L’affaire
de l’Achille Lauro et le droit international, AFDI 1985, pp. 221-236; Gerald P. McGinley, The
Achille Lauro affaire – Implications for international law, 52 Tennessee LR 1984-1985, pp.
691-738.
134
Thomas Franck, To define and punish piracies: The lessons of the Santa Maria: A
comment, 36 New York University LR 1961, pp. 839-845.
135
1678 UNTS 29004.
tion under the Law of the Sea Convention – or indeed under other instru-
ments: neither the 1926 International Slavery Convention 136 nor the Supple-
mentary Convention on the Abolition of Slavery, the Slave Trade and insti-
tutions and practices similar to slavery 137 contain similar provisions 138 . Article
110 of the LOS Convention, repeating article 22 of the 1958 High Seas Con-
vention, provides for a right of visit and search when a ship is reasonably
suspected of being engaged in the slave trade. Once a slave is found taking
refuge aboard ship (presumably after he has shed his chains), he becomes
ipso facto free 139 ; as to the perpetrators of the crime, they have to be reported
to the flag State, which has nonetheless the obligation to
“take effective measures to prevent and punish the transport of slaves in ships
flying its flag and to prevent the unlawful use of its flag for that purpose” 140 .
It has to be noted, however, that the ius cogens nature of the offence sepa-
rately 141 and as part of crimes against humanity 142 is well documented in a
number of international instruments since the 1841 London Treaty for the
Suppression of the African Slave Trade 143 and the 1890 Brussels General Act
for the Suppression of the Slave Trade and Importation into Africa of fire-
arms, ammunition and spirituous liquors 144 , which could be seen as containing
a modicum of universal jurisdiction; presumably in response to the Declara-
tion of the Congress of Vienna in 1815, which equated slave trafficking (rather
than slavery tout court) to piracy 145 .
136
Done in Geneva on 25 September 1926, it entered into force on 9 March 1927; as
amended by the Protocol signed in Geneva on 7 December 1953, approved by UN General
Assembly resolution 794 (VIII) of 23 October 1953 and entered into force on 7 July 1955,
212 UNTS 17; both texts also available at <www.unhchr.ch>.
137
Adopted on 7 September 1956 by ECOSOC resolution 608 (XXI), 226 UNTS 3.
138
R.R. Churchill & A.V. Lowe, The Law of the Sea (3rd ed., Manchester University Press
1999) at p. 212; Ilias Bantekas, Susan Nash & Mark Mackarel, International Criminal Law
(Cavendish, London/Sydney 2001) at pp. 28-29.
139
Article 99 paragraph 2 LOSC.
140
141
M. Cherif Bassiouni, Enslavement as an international crime, 23 NYU Journal of Inter-
national Law & Policy 1991, pp. 445-517; Emmanuel Jos, La traite des êtres humaines et
l’esclavage, in Ascencio, Decaux et Pellet (eds.), supra note 88, pp. 337-347.
142
See the first conviction for enslavement as a crime against humanity under the Interna-
tional Criminal Tribunal for the former Yugoslavia: Prosecutor v. Dragoljub Kunarac et al.,
judgment, ICTY case no. IT-96-23-T & IT-96-23/1-T, 22 February 2001, paragraphs 515-
543, available at <www.icty-tpiy.org>
143
2 Martens Nouveau Recueil, ser. 1, p. 392.
144
27 Stat. 886.
145
Bassiouni, supra note 98, at pp. 112-115.
The illicit trafficking of drugs is subject only to an obligation for the

States to cooperate with a view to suppress it 146 . The Law of the Sea Conven-
tion does not create any jurisdictional powers other than suggesting to the
flag State to seek the cooperation of other States, when it has “reasonable
grounds for believing that a ship flying its flag is engaged in illicit traffic in
narcotic drugs or psychotropic substances” 147 . The suggestion was indeed
implemented and institutionalised in the 1988 Vienna Convention against Il-
licit Traffic in Narcotic Drugs and Psychotropic Substances 148 , which creates
a framework for such cooperation; and it has also given rise to a number of
‘rider agreements’ 149 and their more trendy offshoots in the terrorism context.
4. PASSIVE PERSONALITY & THE PROTECTIVE PRINCIPLE
The passive personality principle and the protective principle are two sides
of the same coin. The first creates jurisdiction when a national of a State is
the victim of a crime whereas under the protective or ‘security’ principle the
State assumes jurisdiction over aliens for acts done abroad, which affect the
vital interests of the State.
For a long period of time the nationality of the victim was not considered
sufficient as basis of jurisdiction. The opposition to such claims in earlier
times was fierce, especially by the United Kingdom 150 and the United Stat-
es 151 – although in more recent times the domestic courts realised its useful-
146
147
Article 108 paragraph 2 LOSC. See also Christina Sorensen, Drug trafficking in the
high seas: A move towards universal jurisdiction under international law, 4 Emory ILR 1990,
pp. 207-230, at pp. 220-225; Anne H. Geraghty, Universal jurisdiction and drug trafficking. A
tool for fighting one of the world’s most pervasive problems, 16 Florida JIL 2004, pp. 371-403.
148
ECOSOC Doc. E/Conf.82/15 of 19 December 1988, 28 ILM 1989, pp. 497-526; Wil-
liam Gilmore, Drugs trafficking at sea: The case of R. v. Charrington and Others, 49 ICLQ 2000,
pp. 477-489.
149
Thus described because they authorise law enforcement officers of one State to ride on
law enforcement vessels of another State; Laleta Davis-Mattis, International drug trafficking
and the law of the sea. Outstanding issues and bilateral responses with emphasis on the US-
Caribbean agreements, 14 Ocean YB 2000, pp. 360-385; Churchill & Lowe, supra note 138,
pp. 218-220.
150
Where the last described incident dates back to 1852; Lord MacNair, International Law
Opinions (vol. 2, 1956) p. 150, as quoted by Akehurst, supra note 9, at p. 158.
151
Thus the Cutting case, J.B. Moore, Digest of International Law (vol. II, 1906) pp. 228-
242; Whiteman’s Digest of US Practice in International Law 1976, at p. 339. For an overview
see Geoffrey R. Watson, The passive personality principle, 28 Texas ILJ 1993, pp. 1-46;
idem., Offenders abroad: The case for nationality-based criminal jurisdiction, 17 Yale JIL
1992, pp. 41-84.
ness in order to bring within their jurisdiction difficult cases, typically the
perpetrators of war crimes: it was famously invoked in the Eichmann case 152
along with other convoluted arguments based on universal jurisdiction and
the protective principle. Eventually, it served as a bridge to the perpetrators
of any act committed abroad against a citizen 153 and it was in this form that,
in a complete volte face, it explicitly constituted the foundation in 1996 of
the US Anti-Terrorism and Effective Death Penalty Act (AEDPA) 154 – to be
repeated later in many other statutes.
It was not an original move. The passive personality principle was already
accepted in a series of international instruments, most notably in antiterrorist
conventions 155 . In a typical example, article 6 of the 1988 Rome Convention
for the Suppression of Unlawful Acts Against the Safety of Maritime Navi-
gation creates a facultative basis of jurisdiction if
“during [the] commission [of the conventional offence] a national of that State
is seized, threatened, injured or killed.” 156 .
By 2002, President Guillaume considered it, in the Arrest Warrant case, as
part of “the law as classically formulated” 157 .
The protective principle, on the other hand, had traditionally enjoyed wide
acceptance 158 . The vital interests of the State were always considered worthy
152
Attorney-General of Israel v. Eichmann, District Court of Jerusalem, 12 December
1961, 36 ILR (1968) pp. 5-276, at pp. 44-48; Supreme Court of Israel, 29 May 1962, ibid., pp.
277-342, at pp. 308-311. For an overview see J.E.S. Fawcett, The Eichmann case, 38 BYBIL
1962, pp. 181-215; Leslie Green, Aspects juridiques du procès d’Eichmann, AFDI 1963, pp.
150-190; Matthew Lippman, Genocide: The trial of Adolf Eichmann and the quest for global
justice, 8 Buffalo HRLR 2002, pp. 45-121.
153
Thus United States v. Yunis, 681 F. Supp. 896 (DDC 1988), aff’d 924 F.2d 1086 (DC
Circ. 1991); Lynda M. Clarizio, United States v. Yunis, 83 AJIL 1989, pp. 94-99; see also Re-
statement, supra note 100, §402.
154
Pub. L. 104-132, section 221, 110 Stat. 1214, 28 USC 1605. Lee M. Caplan, The Con-
stitution and jurisdiction over foreign States: The 1996 amendment to the Foreign Sovereign
Immunities Act in perspective, 41 Virginia JIL 2001, pp. 369-426, at pp. 409-426.
155
Ever since the first anti-terrorism instrument, the International Convention for the pre-
vention and repression of terrorism, concluded in Geneva on 16 November 1937 but never en-
tered into force; LN Doc. C.546.M.383.1937; as quoted in Andrea Gioia, Terrorismo interna-
zionale, crimini di guerra e crimini contro l’umanità, RDI 2004, pp. 5-69, at pp. 8-11. For an
overview see Gilbert Guillaume, Terrorism et droit international, RCADI 1989-III, pp. 247-
330. See also UN Security Council Resolution 1373/2001, UN Doc. S/RES/1373 (2001) of 28
September 2001, 40 ILM 2001, pp. 1278-1280, also available at <www.un.org>; Paul Szasz,
The Security Council starts legislating, 96 AJIL 2002, pp. 901-905; Eric Rosand, Security
Council Resolution 1373, the Counter-Terrorism Committee and the fight against terrorism,
97 AJIL 2003, pp. 333-341.
156
See supra note 135.
157
Arrest Warrant of 11 April 2000, supra note 101, Separate Opinion of President Guil-
laume, paragraph 4.
of protection, although their definition varied widely. In different times in

history, most notably during the Cold War, they also included considerations
of an ideological or simply political nature 159 – in addition to the more tradi-
tional criminal offences of immigration 160 , currency protection and assorted
economic crimes. It was rather controversially invoked by the US against
foreigners in the high seas in cases of drug-trafficking, allowing for the
boarding of foreign vessels without the permission of the flag State 161 , before
the relevant provisions of the Maritime Drug Law Enforcement Act 1986
were repealed 162 to be replaced by treaty arrangements with the flag State in
conformity with the law of the sea.
Interestingly enough, the protective principle justified the adoption of the
first marine environment protection statutes, especially the 1970 Canada
Arctic Waters Pollution Prevention Act (AWPPA), which prohibited “pollu-
tion of areas of the arctic waters adjacent to the mainland and islands of the
Canadian Arctic” 163 . Indeed, for long years, by virtue of the Canadian Ship-
ping Act (CSA) 164 , Canada was exercising a ‘protective’ jurisdiction over
shipping in the area that finally became in 1996 its exclusive economic
zone 165 . Similar considerations of a possible environmental impact on the US
shores may also be found in the US Oil Pollution Act 1990, which covers not
only vessels bound for US ports but even foreign ships navigating through
the exclusive economic zone when carrying certain types of oil or hazardous
materials, even though they have no intention to reach a US port 166 .
158
Thus articles 7-8 of the Harvard Research Draft Convention on Jurisdiction with Respect
to Crime; supra note 11; Brownlie, supra note 6, pp. 302-303; Lowe, supra note 2, at p. 342.
159
For selected examples see Akehurst, supra note 9, pp. 157-159.
160
Thus Naim Molvan v. Attorney-General for Palestine [1948] AC 531, 15 Annual Digest
1948, p. 115.
161
United States v. Gonzalez, 776 F.2d 931 (1985).
162
Pub. L. 99-570, 100 Stat. 3302, 46 USC §3201-3202, as amended by Pub. L. 100-690
(1988), 102 Stat. 4294, USC §4802 and finally repealed by Pub. L 103-447, 108 Stat. 4694,
USC §103; Jeffrey D. Stieb, Survey of US jurisdiction over high seas narcotics trafficking,
19 Georgia JICL 1989, pp. 119-147. See also Michael Costa, Extraterritorial application of
the Maritime Drug Law Enforcement Act in United States v. Suerte, 18 Temple ICLJ 2004, pp.
131-154.
163
Arctic Waters Pollution Prevention Act (AWPPA), RSC, ch. A-12 (1993), text also
available at <laws.justice.gc.ca>; see also Christopher P. Mooradian, Protecting ‘sovereign
rights’: The case for increase coastal State jurisdiction over vessel-source pollution in the ex-
clusive economic zone, 82 Boston ULR 2002, 767-816, at pp. 799-801.
164
Canadian Shipping Act (CSA), RSC, ch. S-9 (1993), first enacted in 1972; text also
available at <laws.justice.gc.ca>.
165
Oceans Act, ch. 31, 1996 SC §13(1); text also available at <laws.justice.gc.ca>.
166
Oil Pollution Act (OPA) of 1990, Pub.L. No. 101-380, 104 Stat. 484; see also Erik Jaap
Molenaar, Coastal state jurisdiction over vessel-source pollution (Martinus Nijhoff, The Hague
1998) at pp. 376-377.
The protective principle constitutes par excellence the acknowledged basis

of anti-terrorist protection, establishing jurisdiction for offences addressed
against the official agents and representatives of the State. Such is the case
international instruments, such as the 1973 Convention on the Prevention
and Punishment of Crimes against Internationally Protected Persons 167 ; the
1979 International Convention against the Taking of Hostages 168 ; the 1997
International Convention for the Suppression of Terrorist Bombing 169 ; or the
1999 International Convention for the Suppression of the Financing of Ter-
rorism 170 ; or indeed, domestic statutes, the most notorious of which remains
the Omnibus Diplomatic Security and Antiterrorism Act 171 , with the passive
personality principle certainly lurking behind the protection accorded to US
victims worldwide 172 . Actions directly addressed against the State also create
protective jurisdiction. In a typical example, under article 6 paragraph 2(c)
of the 1988 SUA Convention, offences falling within the ambit of the Con-
vention, as expanded by the 2005 SUA Protocol 173 , may be brought within
State jurisdiction if they are committed “in an attempt to compel that State to
do or abstain from doing any act” 174 .
The maritime manifestations of jurisdiction have been obvious in the dis-
cussion of the diverse bases of jurisdiction, on which each State may found
its assumption of jurisdiction. The primary allocation of power under the
Law of the Sea Convention is carried out on a combination of these primary
rules and creates a very interesting interplay of mutually exclusive, concur-
rent or parallel and overlapping varieties of jurisdiction, which will be dis-
cussed in the next chapter.
167
Adopted by UN General Assembly Resolution 3166/1974 of 5 February 1974, UN Doc.
A/RES/3166 (XXVIII); 13 ILM 1974, pp. 41-49.
168
18 ILM 1979, pp. 1456-1463; Edouard Delaplace, La prise d’otages, in Ascensio, De-
caux et Pellet (eds.), supra note 88, pp. 387-394; Sami Shubber, The International Convention
against the Taking of Hostages, 52 BYBIL 1981, pp. 205-240.
169
Adopted by UN General Assembly Resolution 52/164 of 9 January 1998, available at
<www.un.org>.
170
See supra note 97.
171
Pub. L 99-399, 18 USC 2331 (1986); Patrick Donnelly, Extraterritorial jurisdiction over
acts of terrorism committed abroad: Omnibus Diplomatic Security and Antiterrorism Act of
1986, 72 Cornell LR 1986-1987, p. 599-619; Alison Elisabeth Chase, Legal mechanisms of
the international community and the United States concerning State sponsorship of terrorism,
45 Virginia JIL 2004, pp. 41-137.
172
Andreas Lowenfeld, US law enforcement abroad: The Constitution and the International
Law, 83 AJIL 1989, p. 880-893; Christopher Blakesley, Jurisdiction as legal protection against
terrorism, 19 Connecticut LR 1986-1987, pp. 895-943.
173
Concluded on 13 October 2005, IMO Doc. LEG/CONF.15/DC/1; it opened for signa-
ture on 14 February 2006; also available at <www.imo.org>.
174
See supra note 135.
CHAPTER 2
STATE JURISDICTION IN THE SEA
The casual reader of the Law of the Sea Convention 1 – assuming that such a
rare beast exists – would find striking the lack of any reference therein to the
traditional bases of jurisdiction, as described in the previous chapter. Rather,
the allocation of jurisdiction could be detected in the numerous references to
the functions of the State in the maritime context. The State thus operates in
the Law of the Sea Convention as the ‘flag State’, the ‘coastal State’ or the
‘port State’ – with the possible exception of Part XII where the subject of
“the obligation to protect and preserve the marine environment” 2 is the State
tout court. There is also a rare reference, under article 97 paragraph 1 of the
LOS Convention, to a fourth player: the State of nationality of the master
and crew with distinct enforcement jurisdiction 3 , surprisingly not counter-
balanced with the competence to protect the master and the crew through an
application for prompt release, the novel human rights mechanism (very suc-
cessfully) established under article 292 of the Convention 4 .
1
1833 UNTS 396; 21 ILM 1982, pp. 1261-1354.
2
Article 192 LOSC.
3
Article 97 paragraph 1 LOSC reads: “In the event of collision or any other incident of
navigation concerning a ship on the high seas, involving the penal or disciplinary responsibil-
ity of the master or of any other person in the service of the ship, no penal or disciplinary
proceedings may be instituted against such person except before the judicial or administrative
authorities either of the flag State or of the State of which such person is a national.” (empha-
sis added).
4
The success of the new procedure is evident in the fact that more than half of the cases
adjudicated so far by the International Tribunal for the Law of the Sea refer to prompt release
proceedings: The M/V Saiga case, Saint Vincent & the Grenadines v. Guinea, 1997; The
Camouco case, Panama v. France, 2000; The Monte Confurco case, Seychelles v. France, 2000;
The Grand Prince case, Belize v. France, 2001; The Chaisiri Reefer 2 case, Panama v. Yemen,
2001; The Volga case, Russian Federation v. Australia, 2002; The Juno Trader case, Saint
Vincent & the Grenadines v. Guinea Buissau, 2004; all available at <www.itlos.org>. For a
detailed analysis of the procedure see Anne-Katrin Escher, Release of vessels and crews be-
fore the International Tribunal for the Law of the Sea, 3 The Law and Practice of Interna-
tional Courts and Tribunals 2004, Parts 1-2 at pp. 205-374, Part 3 at pp. 411-507; Bernard H.
Oxman, Observations on vessel release under the United Nations Convention on the Law of
the Sea, 11 TIJMCL 1996, pp. 201-215. For the overall presence of human rights in the Law
of the Sea Convention see Bernard H. Oxman, Human rights and the United Nations Conven-
tion on the Law of the Sea, 36 Columbia J Transn’l L 1997, pp. 399-429.
Under each one of these guises, for which no definition is provided in the
text of the Convention, the State can exercise a different range of functions.
Most of them are not necessarily new – flag State powers, for instance, con-
stitute traditional attributes of State power at sea. Others have acquired novel
importance as the international community has accorded or shifted emphasis
to specific uses of the seas, e.g. the production of energy; or has developed
new values, thus rearranging its priorities in the seas, e.g. protection of the
environment. The interplay between the different labels, which each State
may, simultaneously or not, assume provides a fascinating canvas of con-
trasting interests, joint actions and overlapping concerns. When the ever ex-
panding activities of international organisations, with their own jurisdictional
claims, enter the fray, the situation becomes even more complicated – and
ultimately much more interesting.
1. THE FLAG STATE
Flag State jurisdiction is the oldest expression of maritime jurisdiction. It

is also coincidental to jurisdiction exercised on the basis of nationality 5 . The
hoisting of a flag indicates to the world which State is to exercise flag State
jurisdiction over the ship 6 , as any affront to the ship is construed as and as-
similated with an affront to the flag State 7 – hence the importance attached to
the already discussed ‘genuine link’ with the State granting the privilege of
the flag 8 . On the flip side, the acts and/or omissions of the vessel are not
automatically attributable to the State, as the ship remains a private actor and
the usual rules of attribution would apply, namely articles 2-11 of the Arti-
cles on State Responsibility 9 .
5
Maurice Kamto, La nationalité des navires en droit international, La mer et son droit. Mé-
langes offertes à Laurent Lucchini et Jean-Pierre Quéneudec (Pedone, Paris 2003) pp. 343-
373; contra D.H.N. Johnson, The nationality of ships, 8 Indian Yearbook of International Af-
fairs 1959, pp. 3-15, as quoted by R.R. Churchill & A.V. Lowe, The Law of the Sea (3rd ed.,
Manchester University Press, 1999) at p. 257.
6
See also N. Singh, Maritime flag and State responsibility, Essays in international law in
honour of Judge Manfred Lachs (Martinus Nijhoff, The Hague/Lancaster/Boston 1984) pp.
657-669; Pierre Bonassies, La loi du pavillon et les conflits de droit maritime, 125 RCADI
1969-III, pp. 505-630; Société française de droit international, Le navire en droit international,
colloque de Toulon (Pedone, Paris 1992).
7
Thus Fisheries Jurisdiction case, Spain v. Canada, ICJ Reports 1998, paragraph 20.
8
See supra Part I, Chapter 1, 2.
9
The draft articles prepared by the International Law Commission, UN Doc A/56/10
(2001), were approved by General Assembly resolution 56/83 of 12 December 2001, text
available at <www.un.org>; James Crawford, The International Law Commission’s Articles
STATE JURISDICTION IN THE SEA 35
The extent of the jurisdiction exercised by the flag State is neatly summa-
rised in article 94 of the Law of the Sea Convention. It comprises the obliga-
tion for each State to effectively exercise jurisdiction and control in adminis-
trative, technical and social matters 10 , including the construction, equipment
and seaworthiness of ships 11 ; the manning of ships, labour conditions and the
training of crews 12 ; as well as the use of signals, the maintenance of commu-
nications and the prevention of collisions 13 . At first sight, the content of these
rules appears to remain within the exclusive competence of the flag State –
until one reaches paragraph 5 of the same article 94 LOSC, where it is stated
that:
“In taking the measures called for in paragraphs 3 and 4 each State is required
to conform to generally accepted international regulations, procedures and prac-
tices and to take any steps which may be necessary to secure their observance.”
It becomes thus clear that the standards, which the State is called to uphold,
are international rather than domestic – and consequently the ample facility
to regulate the ship flying one’s flag is in actual practice severely curtailed
by globally agreed rules and regulations.
Such rules may be found in two important fora. The International Labour
Organisation (ILO) had always considered maritime labour as one of its pri-
mary priorities. As a result, a series of special maritime sessions since the
1920s created a comprehensive system of standards and conditions for the
employment of seafarers worldwide 14 , although not always with immediately
discernible results. The rules were codified and further strengthened with the
adoption by the International Maritime Organisation (IMO) of the 1978 In-
ternational Convention on Standards of Training, Certification and Watch-
keeping for Seafarers (STCW) 15 . The two organisations have just concluded
the intensive cooperation leading to the adoption, during the 2006 ILO 94th
on State Responsibility. Introduction, text and commentaries (Cambridge 2002), especially at

pp. 91-123.
10
11
12
Article 94 paragraph 3(b) LOSC.
13
Article 94 paragraph 3(c) LOSC.
14
See Nicolas Valticos, La protection internationale des travailleurs de la mer, La Mer et
son droit. Mélanges offertes à Laurent Lucchini et Jean-Pierre Quéneudec (Pedone, Paris
2003) pp. 343-373.
15
Available at <www.imo.org/conventions>. For an overview of the international and na-
tional rules safeguarding seafarers’ rights in selected jurisdictions, see Deirdre Fitzpatrick &
Michael Anderson (eds.), Seafarers’ rights (Oxford 2005); see also Prodromos Mavridis, La
protection sociale des marins dans le droit communautaire, Revue de droit de l’Union européenne
2003, pp. 647-685.
(maritime) session, of a consolidated Maritime Labour Convention 16 , thus creat-

ing, in express application of article 94 of the Law of the Sea Convention 17 ,
“a single, coherent instrument embodying as far as possible all up-to-date
standards of existing international maritime labour Conventions and Recom-
mendations” 18 .
At the same time, the IMO has promoted, through the work of its Sub-
committee on Flag State Implementation 19 , a voluntary audit scheme 20 as a
tool in order to assess how effectively the member States implement and en-
force the conventional standards they have agreed upon as compiled in the
Code for the implementation of mandatory IMO instruments 21 . The first such
audits are already under way, although the whole process still depends upon
the consent of the State concerned. Nonetheless, it remains the only valid at-
tempt so far to create an effective system of implementation control at sea,
along the lines of the peer review procedures employed, for instance, in the
anti-corruption conventions.
Along the same lines moves also the European Community, collectively
the largest flag State jurisdiction in the seas. The Green Paper on the Future
Maritime Policy for the European Union contains a strong commitment on
behalf of the Union and the member States to support a policy to improve
the performance of flag States and considers the development of an instru-
ment to strengthen the monitoring of international rules in the high seas, in-
cluding with the use of state-of-the-art technology, such as global satellite
navigation under the Galileo programme, a matter of urgency 22 .
16
It was adopted on 7 February 2006, available at <www.ilo.org/ilolex>. Cleopatra Doum-
bia-Henry, The consolidated Maritime Labour Convention: A marriage of the traditional with
the new, Les normes internationales du travail : Un patrimoine pour l’avenir. Mélanges en
l’honneur de Nicolas Valticos (Bureau international du Travail, Genève 2004) pp. 319-334;
George Politakis, Deconstructing flexibility in international labour conventions, ibid., pp.
463-496, at pp. 487-492.
17
The ninth preambular paragraph of the Maritime Labour Convention, supra, reads: “Re-
calling that Article 94 of the United Nations Convention on the Law of the Sea, 1982, estab-
lishes the duties and obligations of a flag State with regard to, inter alia, labour conditions,
crewing and social matters on ships that fly its flag,…”.
18
Second preambular paragraph of the Maritime Labour Convention.
19
For the workings of the Sub-committee, see <www.imo.org/safety>.
20
Originally approved by the IMO Assembly Resolution A.946(23) on 27 November 2003,
Voluntary IMO Member State Audit Scheme; and finally adopted in 2005 by IMO Assembly
Resolution A.974(24) Framework and Procedures for the Voluntary IMO Member State Audit
Scheme, available at <www.imo.org>.
21
Approved by IMO Assembly Resolution A.973(24) in November 2005, ibid.
22
Green Paper by the Commission of the European Communities, Towards a future mari-
time policy for the Union: A European vision for the oceans and seas, COM (2006) 275, 7
June 2006; available at <www.europa.eu>.
Even in these very early stages the ‘naming and shaming’ procedure thus
created appears more intrusive – and consequently capable of causing a change
in attitudes – than the optional notification procedure coyly prescribed in ar-
ticle 94 paragraph 6 of the Law of the Sea Convention, according to which
“A State which has clear grounds to believe that proper jurisdiction and control
with respect to a ship have not been exercised may report the facts to the flag
State. Upon receiving such a report, the flag State shall investigate the matter
and, if appropriate, take any action necessary to remedy the situation” 23 .
It is quite clear that the lack of effective implementation, creating condi-
tions of substandard shipping with its ensuing impact on maritime labour 24 ,
is due more to the absence of any political will to act on the matter rather
than any dearth of information… On the other hand, it would be simplistic
and rather naïve to assume that the flag State retains at all times full control
of a ship: the present-day global maritime commerce relies much more on
other users of the vessel, such as the charterer or the administrator of the
ship, rather than the typical ship-owner wrapped in the flag (presuming at all
times that the owner can be eventually identified in a web of holding compa-
nies) 25 .
The exclusive jurisdiction of the flag State is further challenged in a num-
ber of other instances. The flag State is obligated to take action so that ves-
sels flying its flag render assistance to a ship or persons in distress at sea 26 –
an obligation further substantiated in the 1974 International Convention on
the Safety of Life at Sea (SOLAS) 27 and the 1979 International Convention
23
Emphasis added. See also David D. Caron, Ships, nationality and status, IV Encyclope-
dia of International Law 2000, pp. 400-408; Joseph Vorbach, The vital role of non-flag States
actors in the pursuit of safer shipping, 32 ODIL 2001, pp. 27-42.
24
See on the subject Awni Behnan, Ending flag State control?, in Andree Kirchner (ed.),
International Maritime Environmental Law (Kluwer Law International, 2003) pp. 123-135.
25
Emmanuel Roucounas, Facteurs privés et droit international public, 299 RCADI 2002,
pp. 9-419, at §§319-328, pp. 207-211.
26
Article 98 LOSC. The IMO has also issued Guidelines on the Treatment of Persons Res-
cued at Sea, adopted by Resolution MSC.167(78) in May 2004; text available at <www.imo.org>.
See also IMO & UNHCR, Rescue at sea. A guide to principles and practice as applied to mi-
grants and refugees (2006), ibid. For a general discussion of a new category of persons in dis-
tress, namely migrants at sea, see Ximena Hinrichs, Measures against smuggling of migrants
at sea: A Law of the Sea related perspective, RBDI 2003, pp. 413-451; Raymond Goy, Le ré-
gime international des migrants illicites par voie de mer, ADM 2003, pp. 249-301; Tullio
Scovazzi, La tutela della vita umana in mare, con particolare riferimento agli immigranti
clandestini diretti verso l’Italia, 88 RDI 2005, pp. 106-120.
27
Chapter V, Regulation 33(1) of the SOLAS Convention reads: “The master of a ship at
sea, which is a position to be able to provide assistance, on receiving information from any
sources that persons are in distress at sea, is bound to proceed with all speed to their assis-
on Maritime Search and Rescue (SAR) 28 . On a less charitable mission, the

flag State must criminalise and take effective measures to prevent vessels fly-
ing its flag from transporting slaves 29 , thus aiding and abetting to a iure co-
gens crime 30 . The flag State is also called upon to cooperate in the fight
against criminality at sea 31 , in all its modern or less modern forms. Such pro-
visions include the fight against drug trafficking 32 , mostly through the 1988
UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances 33 , which further provides for increased regional cooperation 34 ; the
repression of piracy 35 , where there exists no other global international con-
vention but the restricted definition is supplemented by the 1988 Convention
for the Suppression of Unlawful Acts against the Safety of Maritime Naviga-
tion (the SUA Convention)36 , as amended by the 2005 SUA Protocol 37 ; or the
suppression of unauthorised broadcasting from the high seas 38 .
tance, if possible informing them or the search and rescue service that the ship is doing so…”;
text available at <www.imo.org>.
28
Chapter 2.1.10 of the SAR Convention obligates States parties to “…ensure that assis-
tance be provided to any person in distress at sea … regardless of the nationality or status of
such a person or the circumstances in which that person is found”; text available at
<www.imo.org>.
29
Article 99 LOSC.
30
See supra Chapter 1, 3, at footnotes 136-145 and relevant text.
31
Including tort jurisdiction: for a discussion of the Australian example see Alison Mutton,
Choice of law on the high seas: Blunden v. Commonwealth, 26 Sydney LR 2004, pp. 427-438.
32
33
Adopted in Vienna as ECOSOC Doc. E/Conf.82/15 of 19 December 1988, 28 ILM 1989,
pp. 497-526; Vicenta Carreño Gualde, Suppression of the illicit traffic in narcotic drugs and
psychotropic substances on the high seas: Spanish case-law, 4 Spanish YBIL 1995/1996, pp.
91-106.
34
In the best available example, see the Agreement on illicit traffic by sea, implementing
article 17 of the United Nations Convention against illicit traffic in narcotic drugs and psycho-
tropic substances, ETS no. 156, adopted in Strasbourg on 31 January 1995; see also W.C.
Gilmore, Narcotics interdiction at sea: the 1995 Council of Europe Agreement, 20 Marine
Policy 1996, pp. 3-14.
35
Article 100 LOSC. For a general overview of the problems and challenges still posed see
José Luis Jesus, Protection of foreign ships against piracy and terrorism at sea: Legal aspects,
18 TIJMCL 2003, pp. 363-400, at pp. 364-387; Ethan C. Stiles, Reforming current interna-
tional law to combat modern sea piracy, 27 Suffolk Transn’l LR 2004, pp. 299-326; Zou
Kenyuan, Seeking effectiveness for the crackdown of piracy at sea, 59 Journal of Interna-
tional Affairs 2005, pp. 117-134.
36
1678 UNTS 29004; Tullio Treves, The Convention for the suppression of unlawful acts
against the safety of maritime navigation, 2 Singapore JICL 1998, pp. 541-556.
37
Concluded on 13 October 2005, IMO Doc. LEG/CONF.15/DC/1; it opened for signature
on 14 February 2006; also available at <www.imo.org>.
38
Article 109 LOSC – considered a trendy pastime in the 1960s and now sadly rendered
obsolete by technology; Paul Harris, Broadcasting from the high seas. The history of offshore
radio in Europe 1958-1976 (Edinburgh 1977); N. March Hunnings, Pirate broadcasting in
2. THE COASTAL STATE
The jurisdiction of the coastal State over seaward maritime areas remains
nothing less that the projection of State sovereignty onto the sea. Hence the
traditional debate on the breadth of the territorial waters 39 , best encapsulated
in Bynkershoek’s words:
“terrae dominium finitur ubi finitur armorum vis” 40 .
The territorial aspect of the State extends to all the maritime zones, from
the full sovereignty exercised over the territorial sea 41 to the sovereign rights
enjoyed in the EEZ 42 . It would be, however, incorrect to presume that the ju-
risdiction the coastal State exercises over the seas is identical to that exer-
cised on the land. The right of innocent passage creates a major hole in the
sovereignty of the coastal State: it allows for “continuous and expeditious” 43
passage through the territorial sea “so long as it is not prejudicial to the
peace, good order or security of the coastal State” 44 and it takes “place in
conformity with [the] Convention and with other rules of international
law” 45 . This general negative definition, which was also to be found in article
14 paragraph 4 of the 1958 Geneva Convention on the Territorial Sea 46 , was
improved with the addition of a (non-exhaustive) 47 list of activities, the pres-
European waters, 14 ICLQ 1965, pp. 410-436; H.F. van Punhuys & Menno J. van Emde Boas,
Legal aspects of pirate broadcasting: A Dutch approach, 60 AJIL 1966, pp. 303-341.
39
Currently at 12 nautical miles from the baselines; article 3 LOSC.
40
Cornelius Bynkershoek, De dominio maris (1703).
41
Article 2 LOSC. For the classical exposition of the doctrine see D.P. O’Connell, The ju-
ridical nature of the territorial sea, 45 BYBIL 1971, pp. 303-381.
42
Article 56 LOSC.
43
44
45
Ibid. For the traditional judicial test of the principle see the Corfu Channel case, United
Kingdom v. Albania, ICJ Reports 1949, available at <www.icj-cij.org>; see also Anthony
Carty, The Corfu Channel case – and the missing admiralty orders, 3 The Law and Practice of
International Courts and Tribunals 2004, pp. 1-35.
46
Convention on the Territorial Sea and Contiguous Zone, 516 UNTS 205.
47
1999) pp. 84-87. Note, however, that in an agreement on the Uniform Interpretation of Norms
of International Law Governing Innocent Passage in 1989 the US and the (then) USSR agreed
that “Article 19 of the Convention of 1982 sets out in paragraph 2 an exhaustive list of activi-
ties that would render passage not innocent. A ship passing through the territorial sea that
does not engage in any of those activities is in innocent passage”; 14 Law of the Sea Bulletin
1989, pp. 12-13; Erik Franckx, Further steps in the clarification of the Soviet position on the
innocent passage of foreign warships through territorial warships, 19 Georgia JICL 1989, pp.
535-563; idem., Innocent passage of warships: Recent developments in US-Soviet relations,
14 Marine Policy 1990, pp. 484-490.
ence of which renders the passage non-innocent and thus returns the ship to
the full jurisdiction of the coastal State, which “may take all the necessary
steps in its territorial sea to prevent [such] passage” 48 . The prohibited activi-
ties include weapons practice 49 , intelligence gathering 50 , propaganda 51 ,
launching or taking on board of aircraft or other military device 52 , embarking
or disembarking persons or goods in breach of customs, fiscal, immigration
and sanitary laws and regulations 53 , wilful and serious pollution 54 , fishing 55 ,
research or survey activities 56 , interference with communications 57 as well as
two generic clauses, presumably at the discretion of the coastal State: “any
other activity not having a direct bearing on passage” 58 , and
“any threat or use of force against the sovereignty, territorial integrity or politi-
cal independence of the coastal State, or in any other manner in violation of the
principles of international law embodied in the Charter of the United Na-
tions” 59 .
As a result, the coastal State has acquired increased leeway in determining
whether a ship is exercising innocent passage or not. That being said, there is
no dearth of instances where the coastal State has claimed additional grounds
for rendering a passage non-innocent alleging the need for increased envi-
ronmental protection, especially in view of passage by certain (mostly nu-
clear) ships 60 .
48
Article 25 paragraph 1 LOSC. See in general William K. Agyebeng, Theory in search of
practice. The right of innocent passage in the territorial sea, 39 Cornell ILJ 2006, p. 371-399.
49
50
51
Article 19 paragraph 2(d) LOSC.
52
Article 19 paragraphs 2(e)-(f) LOSC.
53
Article 19 paragraph 2(g) LOSC.
54
Article 19 paragraph 2(h) LOSC.
55
Article 19 paragraph 2(i) LOSC.
56
Article 19 paragraph 2(j) LOSC.
57
Article 19 paragraph 2(k) LOSC.
58
Article 19 paragraph 2(l) LOSC.
59
60
See, instead of many others, Marco Roscini, The navigational rights of nuclear ships, 15
Leiden JIL 2002, pp. 251-265; Jon M. Van Dyke, The legal regime governing sea transport of
ultrahazardous radioactive materials, 33 ODIL 2002, pp. 77-108; Kari Hakapää, Innocent pas-
sage – Past and present, 23 Marine Policy 1999, pp. 131-145; Lawrence Marín, Oceanic
transportation of radioactive materials: The conflict between the law of the sea’s right of in-
nocent passage and duty to the marine environment, 13 Florida JIL 2000-2201, pp. 361-378;
Pablo Cubel, Transboundary movements of hazardous wastes in international law: The special
case of the Mediterranean Sea, 12 TIJMCL 1997, pp. 447-487; Robert Nadelson, After MOX:
The contemporary shipment of radioactive substances in the Law of the Sea, TIJMCL 2000,
pp. 193-244; Laura Pineschi, The transit of ships carrying hazardous wastes through foreign
With the view both to safeguard the freedom of navigation in the seas,
even in an area so close to the coast, and also to maintain the authority of the
flag State to take all measures necessary to ensure safety at sea for ships fly-
ing its flag, the Law of the Sea Convention contains a double prohibition of
action addressed to the coastal State.
First, it restricts its sovereignty to adopt laws and regulations only to cer-
tain tasks enumerated in article 21 of the LOS Convention – and even then
strictly
“… in conformity with the provisions of [the] Convention and other rules of
international law” 61 .
Among them, one could find safety of navigation and the regulation of mari-
time traffic 62 , the conservation of the living resources of the sea 63 , the pre-
vention of infringement of the fisheries laws and regulations of the coastal
State 64 , the preservation of the environment of the coastal State and the pre-
vention, reduction and control of pollution thereof 65 .
Second, even those laws and regulations must be drafted and construed in
such a way so as
“not [to] hamper the innocent passage of foreign ships through the territorial
sea” 66 .
In particular, the coastal State
“in the application of [the] Convention or any laws or regulations adopted in
conformity with [the]Convention” 67 .
shall not impose requirements,
“which have the practical effect of denying or impairing the right of innocent
passage” 68 ,
coastal zones, in F. Francioni & Tullio Scovazzi (eds.), International responsibility for envi-
ronmental harm (Graham & Trotman/Martinus Nijhoff, London 1991) pp. 299-316. For the
evolutionary development of a new approach to innocent passage of dangerous cargoes
through ‘notification without consent’ see Tullio Scovazzi, The evolution of international law
of the sea: New issues, new challenges, 286 RCADI 2000, pp. 39-243, at pp. 156-162.
61
62
63
Article 21 paragraph 1(d) LOSC.
64
Article 21 paragraph 1(e) LOSC.
65
Article 21 paragraph 1(f) LOSC. For an overview see Erik Franckx, Vessel-source pollu-
tion and coastal State jurisdiction: General framework, 24 South African YBIL 1999, pp. 1-34.
66
67
Ibid.
68
or discriminate against ships flying the flag of or carrying cargoes to and

from any State 69 , including by levying charges upon them 70 .
Construction, design, equipment and manning standards (CDEMs) are par-
ticularly singled out. The coastal State is expressly forbidden to legislate on
such issues
“unless […] giving effect to generally accepted international rules and stan-
dards” 71 .
Such rules and standards may be found mostly in the 1973 International
Convention for the Prevention of Pollution from Ships, as amended in 1978
(MARPOL 73/78) 72 and the 1974 International Convention for the Safety of
Life at Sea (SOLAS 74) 73 . Unilateralism in these matters becomes strictly
incompatible with the Law of the Sea Convention – which necessarily means
that coastal sovereignty must explore other avenues in order to make its
presence felt 74 . In a typical example of alternative bases of rule-making, the
coastal State remains free to adopt national pollution control measures
stricter than the relevant international regulations and applicable on ships
flying its flag or present in the territorial waters 75 , provided that such meas-
ures again “cannot hamper innocent passage of foreign ships” 76 . Indeed, it
was on the basis of this last proviso that the compatibility of Directive
2005/35/EC concerning ship-source pollution and the introduction of penal-
ties for infringements 77 with the Law of the Sea Convention has been chal-
lenged before the European Court of Justice 78 , as it provides for the crimi-
69
70
Article 26 LOSC.
71
Article 21 paragraph 2 LOSC. For an overview see Anne Bardin, Coastal State’s juris-
diction over foreign vessels, 14 Pace ILR 2002, pp. 27-76.
72
Text available at <www.imo.org>.
73
Ibid.
74
See also Alan Boyle, EU unilateralism and the Law of the Sea, 20 TIJMCL 2005, pp. 1-
17; Maria Gavouneli, From uniformity to fragmentation? The ability of the UN Convention
on the Law of the Sea to accommodate new uses and challenges, in A. Strati, M. Gavouneli &
N. Skourtos (eds.), Unresolved Issues and New Challenges to the Law of the Sea (Martinus
Nijhoff, Leiden/Boston 2006) pp. 205-233, at pp. 210-213.
75
76
77
Directive 2005/35/EC of the European Parliament and Council of 7 September 2005
concerning ship-source pollution and the introduction of penalties for infringements, OJ L
255, pp. 11-21, 30 September 2005.
78
ECJ, Case C-308/06, Reference for preliminary ruling from the High Court of Justice
(England and Wales), Queen’s Bench Division (Administrative Court) made on 14 July 2006
– The Queen on the application of The International Association of Independent Tanker Own-
ers (Intertanko), The International Association of Dry Cargo Shipowners (Intercargo), The
nalisation of pollution, also if committed “recklessly or by serious negli-

gence” thus exceeding the ‘wilful pollution’ standard of article 19 paragraph
2(h) of the Law of the Sea Convention.
The situation is no different in the exclusive economic zone. The coastal
State enjoys sovereign rights for the purposes of exploration and exploitation
of the natural resources of the zone 79 and may also exercise jurisdiction as to
the establishment of offshore structures, the conduct of marine scientific re-
search and the protection of the marine environment 80 . Although the latter
may well prove to be a Trojan horse for the re-affirmation of its jurisdic-
tion 81 , on the face of the law the coastal State may only
“adopt laws and regulations for the prevention, reduction and control of pollu-
tion from vessels conforming to and giving effect to generally accepted inter-
national rules and standards established through the competent international
organisation or general diplomatic conference” 82 .
The approval of the international community, expressed through the IMO as
the competent international organisation, is also necessary should the coastal
State feel that ‘special circumstances’ require the adoption of ‘special man-
datory measures’ for the prevention of pollution or the protection of its re-
sources 83 . The procedure set out in article 211 paragraph 6 of the Law of the
Sea Convention involves a series of cumbersome, time-consuming decisions
whereby international laws and regulations may designate specially pro-
tected areas allowing for the possible adoption of national measures of im-
plementation over a period of almost two years. The proliferation of such
designated areas, in spite of the considerable difficulty of the staged ap-
proach knowingly adopted by the LOS Convention and often, bypassing the
LOS Convention, on debatable or even non-existent legal bases, testifies to
the crying need for similar arrangements 84 – and their proven beneficial uses
and effects 85 .
Greek Shipping Cooperation Committee, Lloyd’s Register, The International Salvage Union
v. The Secretary of State for Transport; for developments see <curia.europa.eu>.
79
Article 56 paragraph 1 (a) LOSC. See also Christopher P. Mooradian, Protecting ‘sover-
eign rights’: The case for increased coastal State jurisdiction over vessel-source pollution in
the exclusive economic zone, 82 Boston ULR 2002, pp. 767-816.
80
81
See infra Part II, Chapter 1.
82
83
84
For an overview see, instead of many others, Tullio Scovazzi (ed.), Marine Specially
Protected Areas. The general aspects and the Mediterranean regional system (Kluwer Law
International, The Hague/Boston/London 1999) at pp. 3-43.
85
See also infra Part II, Chapter 3, 2.
3. THE PORT STATE
The port State is always a coastal State – although the reverse is not al-
ways true. The Law of the Sea Convention has granted specific rights and
obligations to this special category of a coastal State, especially in terms of
enforcement action of the applicable rules and standards for the protection
and preservation of the marine environment. Thus presented, the rule consti-
tutes an innovation of the Convention 86 – indeed, it has been described as
“the most important innovation of the enforcement system” 87 –, presaged in a
more limited way in the MARPOL Convention. The change in emphasis has
prompted comments ranging from a perceived delegation of the port State to
second-grade coastal State quality 88 to a long-awaited recognition of the tra-
ditionally long association between the ship and her port 89 . In actual fact, the
major difference lies in the ‘voluntary’ character of the ship’s presence in
port 90 : whereas the principle of innocent passage shields the seagoing vessel
from the jurisdiction of the coastal State, port-state jurisdiction strengthens
compliance with national rules and regulations without any interference with
the freedom of navigation as entry into a port constitutes a voluntary submis-
sion of the vessel to the jurisdiction of the port State – either and both run-
ning concurrently with the original jurisdiction of the flag State.
The creation of a separate port State jurisdiction is the direct consequence
of the expansion of the coastal State’s jurisdiction over the exclusive eco-
nomic zone, especially in view of the enhanced environmental protection
provisions included in the Law of the Sea Convention. As more and more
86
See Shabtai Rosenne & Alexander Yankov (eds.), United Nations Convention on the
Law of the Sea 1982. A Commentary, vol. IV: Articles 192 to 278, Final Act, Annex VI (Mar-
tinus Nijhoff, Dordrecht/Boston/London 1991) at §218.1, p. 260; David Anderson, The roles
of flag States, port States, coastal States and international organisations in the enforcement of
international rules and standards governing the safety of navigation and the prevention of pol-
lution from ships under the UN Convention on the Law of the Sea and other international
agreements, 2 Singapore JICL 1998, pp. 557-578, at pp. 567-570.
87
Barbara Kwiatkowska, The 200-mile exclusive economic zone in the new law of the sea
(Martinus Nijhoff, Dordrecht 1989) at p. 180.
88
Thus P.-M. Dupuy & Martine Rémond-Gouilloud, La préservation du milieu marin, in
R.-J. Dupuy & D. Vignes (éds.), Traité du nouveau droit de la mer (Paris 1985) pp. 979-1045, at
p. 1023.
89
Thus Emmanuel Roucounas, « »
Memorandum "
[=Reinforcement of the port State under the new Law of the Sea Convention and the Paris
Memorandum], Offer to Ilias Crispis (Athens 1995) pp. 611-626, at p. 614.
90
Article 218 paragraph 1 LOSC. See also Rosenne & Yankov, supra note 86, at §218.9(f),
p. 274; Ted L. McDorman, Port State enforcement. A comment on Article 218 of the 1982
Law of the Sea Convention, 28 JMLC 1997, pp. 305-322.
marine areas come under the jurisdiction of the coastal State, the need was
perceived for a ‘third’ jurisdiction, which would take over, if that coastal
State – or indeed the flag State – were to show signs of laxity in enforcing
their obligations. As a result, port State enforcement jurisdiction may be ex-
ercised
“in respect of any discharge from [a] vessel outside the internal waters, territo-
rial sea and exclusive economic zone of that State in violation of applicable in-
ternational rules and standards established through the competent international
organisation or general diplomatic conference” 91 .
Moreover, the port State may exercise enforcement jurisdiction in respect of
discharges in the internal waters, territorial sea or exclusive economic zone
of another State, at the request of that State or the flag State or a third State
damaged or threatened by the discharge violation. Naturally, the port State
retains its jurisdiction in respect of violations which have caused or were
likely to cause pollution in its internal waters, territorial sea or EEZ – but in
application of its jurisdiction in its capacity as a coastal State 92 .
It is important to note in this respect that all port State jurisdiction remains
permissive, not mandatory 93 . The port State thus becomes, if it so wishes, the
friendly or not-so-friendly neighbourhood constable in matters pertaining to
marine pollution 94 , exercising a form of universal jurisdiction 95 of the aut
dedere aut iudicare variety: in a fairly complicated system of implementa-
tion, the port State may transfer the file to either the coastal State or the flag
State, any such proceedings subject to suspension upon a request of the
coastal State victim of pollution 96 .
91
92
For a wider definition of ‘port State’ see Erik Jaap Molenaar, Port State jurisdiction:
Towards mandatory and comprehensive use, in David Freestone, Richard Barnes & David
Ong (eds.), The Law of the Sea. Progress and Prospects (Oxford 2006) pp. 192-209, at p. 194.
93
Tatjana Keselj, Port State jurisdiction in respect of pollution from ships: The 1982
United Nations Convention on the Law of the Sea and the Memoranda of Understanding, 30
ODIL 1999, pp. 127-160, at p. 140, quoting J. Peter A. Bernhardt, A schematic analysis of
vessel-source pollution: Prescriptive and enforcement regimes in the Law of the Sea Confer-
ence, 20 Virginia JIL 1979-1980, pp. 268-311, at p. 284.
94
For an overview see, instead of many others, G. Kasoulides, Port State control and ju-
risdiction: Evolution of the port State regime (Martinus Nijhoff, Dordrecht/Boston/London
1993); Moritaka Hayashi, Jurisdiction over foreign commercial ships in ports. A gap in the
law of the sea codification, 18 Ocean YB 2004, pp. 488-511.
95
Thus also K. Ioannou & Anastasia Strati, [=Law of the Sea] (2nd
ed., Athens 2000) at §944.
96
Port State jurisdiction may also assume a negative aspect. In the absence
of any reference to a right to entry into ports, the Law of the Sea Convention,
nevertheless, allows States to
“establish particular requirements for the prevention, reduction and control of
pollution of the marine environment as a condition for the entry into their ports
or internal waters or for a call at their offshore terminals” 97 .
Complete with a right to request information as to the intentions of the ves-

sel 98 and the obligation to prevent from sailing a vessel non-conforming to
the international standards of seaworthiness 99 , this provision has provided the
legal basis for the elaborate system of memoranda of understanding (MOU),
administrative arrangements concluded between the port authorities of a re-
gion rather than the States proper, with a view to ensure that a certain num-
ber of inspections is carried out at a more or less similar level.
The 1982 Paris MOU 100 , the first exercise of this kind, was fully aware of
the need to create uniform standards – and thus a level playing-field to coun-
terbalance the financial risks inherent in the international community consta-
ble function of any given port. The earlier inspections focused on the na-
tional enforcement of the internationally agreed construction, design, equip-
ment and manning standards (CDEMs) 101 , with a eye on safe navigation
rather than on environmental concerns. However, as the IMO concentrated
more and more on the ‘human element’ in merchant shipping, the scope of
controls expanded to cover the whole operation of a ship, best exemplified in
the IMO International Code for the Safe Operation of Ships and for Pollu-
tion Prevention (ISM Code 2002) 102 . Environmental regulations took also
97
98
And presumably impose sanctions as well: US v. Royal Caribbean Cruises Ltd., 2003,
file available at the US Coast Guard site at <www.uscg.mil/d7/d7dl/rccl.htm>; see also
Anderson, supra note 86, at pp. 270-272.
99
Article 219 LOSC. See also Gerhard Kiehne, Investigation, detention and release of ships
under the Paris Memorandum of Understanding on port state control: a view from practice, 11
TIJMCL 1996, pp. 217-224.
100
Memorandum of Understanding on Port State Control, Paris, 26 January 1982, as regu-
larly amended; text available at <www.parismou.org>. See also Tim De Bondt, States and the
control of ships, in Erik Franckx & Philippe Gautier (eds.), The Exclusive Economic Zone and
the United Nations Convention on the Law of the Sea, 1982-2000: A preliminary assessment
of State practice (Bruylant, Bruxelles 2003) pp. 123-132, at pp. 128-131.
101
See also supra under 2.
102
First adopted in 1991, it became mandatory in 1996; text available at <www.imo.org>.
For an overview see Antonio José Rodriguez & Mary Campbell Hubbard, The International
Safety Management (ISM) Code, 73 Tulane LR 1999, pp. 1585-1618; Chen Liang, Legal and
practical consequences of not complying with the ISM Code, 27 Maritime Policy & Manage-
ment 2000, pp. 219-230; Lia Athanassiou, [=The role and
liability of classification societies] (Athens 1999) at pp. 23-26; idem., ! " -
pride of place, with norms stricter in application and wider in scope, includ-
ing the proper functioning of liability regimes: in a fairly typical example,
reference is now increasingly made to the 1992 International Convention on
Civil Liability for Oil Pollution Damage (CLC Convention) 103 , although the
text of that Convention does not make any reference to port State jurisdiction
or control 104 .
In addition, the implementation control of both ILO labour and living
standards 105 as well as WHO health regulations 106 , obligations which the flag
State was supposed to police 107 , appeared in the ever expanding list. Indeed,
the IMO and the ILO are once again cooperating in the elaboration of draft
Guidelines for Port State Control on Inspection of Seafarers’ Working
Hours 108 pursuant to ILO Convention no. 180 on Seafarers’ Hours of Work
and Manning of Ships Convention 109 whereas the development of further
Guidelines for Port State Control under the International Convention for the
Control and Management of Ships’ Ballast Water and Sediments is expected
for 2008 110 . Fishing has emerged as a prime target of port State control as the
FAO adopted a port State model scheme to combat illegal, unreported and
unregulated (IUU) fishing 111 . Even cultural matters are now entrusted to the
" [=The debate on the limitation of li-
ability for maritime claims] (Athens 2005), at p. 313; Dimitrios Christodoulou, The Interna-
tional Safety Management (ISM) Code and the rule of attribution in corporate criminal re-
sponsibility under English law (Athens 2000).
103
The CLC Convention, originally adopted in 1969, has been replaced by the 1992 Proto-
col thereto, as further amended in 2000; codified text available at <www.imo.org>. For an
overview see Michael Mason, Civil liability for oil pollution damage: Examining the evolving
scope for environmental compensation in the international regime, 27 Marine Policy 2003,
pp. 1-12.
104
As commented by Molenaar, supra note 92, at p. 203.
105
See Francis Maupain, Persuasion et contrainte aux fins de la mise en œuvre des normes
et objectifs de l’OIT, Mélanges en l’honneur de Nicolas Valticos, supra note 16, pp. 687-709.
For an earlier attempt see F. Wolf & H. Kellerson, Les problèmes de droit de travail et la
Convention sur le droit de la mer, in Société française de droit international, Perspectives du
droit de la mer à l’issue de la Troisième Conférence des Nations Unies, Colloque de Rouen
(Pedone, 1983) pp. 224-237.
106
The 2005 International Health Regulations further broaden the obligations of port
States, available at <www.who.int>.
107
See supra under 1.
108
Draft text available at <www.imo.org>.
109
Adopted on 22 October 1996, it entered into force on 8 August 2002; for the text of the
Convention see <www.ilo.org>.
110
Information available at <www.imo.org>. See also Report of the UN Secretary-General,
Oceans and the Law of the Sea, UN Doc. 61/63/Add.1, 17 August 2006, paragraph 45, avail-
able at <www.un.org>.
111
Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated
Fishing, Annex E to the Report of the Technical Consultation to Review Port State Measures
coordinated enforcement powers of the port State, under article 15 of the

2001 Underwater Cultural Heritage Convention 112 , which reads:
“States Parties shall take measures to prohibit the use of their territory, includ-
ing their maritime ports, as well as artificial islands, installations and struc-
tures under their exclusive jurisdiction or control, in support of any activity di-
rected at underwater cultural heritage which is not in conformity with this
Convention.” (emphasis added).
The effectiveness of the system has also prompted further geographical

expansion. Indeed, the IMO actively encouraged 113 the proliferation of such
arrangements with a view to create a global network of regional port State
control system. In addition to the European coastal waters and the waters of
the North Atlantic basin covered by the Paris MOU, the Asia and Pacific wa-
ters are covered by the Tokyo Memorandum of Understanding 114 ; the Latin
American States work together in the context of the Acuerdo de Viña del
Mar 115 ; the Caribbean waters are policed by the Caribbean Memorandum of
Understanding 116 ; West and Central Africa is covered by the Abuja Memo-
randum of Understanding 117 ; the Black Sea region operates under the Black
to Combat Illegal, Unreported and Unregulated Fishing, FAO Fisheries Report no. 759 (FAO,
Rome 2004) available at <www.fao.org>.
112
The Convention on the Protection of the Underwater Cultural Heritage was adopted by
the UNESCO General Conference on 2 November 2001, 41 ILM 2002, pp. 40-56; available at
<www.unesco.org>; Guido Carducci, New developments in the Law of the Sea: The UNESCO
Convention on the Protection of Underwater Cultural Heritage, 96 AJIL 2002, pp. 419-434;
Sarah Dromgoole, 2001 UNESCO Convention on the protection of the underwater cultural
heritage, 18 TIJMCL 2003, pp. 59-108. For a thorough discussion of the issue in general see
Vittorio Mainetti, Considerazioni in tema di esercizio della sovranità archeologica da parte
dello Stato costiero, in Guido Camarga & Tullio Scorazzi (eds.), The protection of the under-
water cultural heritage. Legal aspects (Guiffrè Editore, Milano 2002) pp. 217-244; Tullio
Treves, Stato costiero e archeologia sottomarina, RDI 1993, pp. 698-719; Anastasia Strati,
The Protection of the Underwater Cultural Heritage. An emerging objective of the contempo-
rary law of the sea (Martinus Nijhoff, 1995); Sarah Dromgoole & Nicholas Gaskell, Draft
UNESCO Convention on the protection of the underwater cultural heritage 1998, 14 TIJMCL
1999, pp. 171-206, at pp. 177-179.
113
IMO Assembly Resolution A.682(17) Regional cooperation in the control of ships and
discharges (1991), available at <www.imo.org>. See in general Ted L. McDorman, Regional
Port State Control Agreements: some issues of international law, 5 OCLJ 2000, pp. 207-225;
Richard W.J. Schiferli, Regional concepts of port State control: A regional effort with global
effects, 11 Ocean YB 1994, pp. 202-217.
114
Asia-Pacific Memorandum of Understanding on port-State control in the Asia-Pacific
Region, Tokyo, 1 December 1993, as regularly amended, text available at <www.tokyo-
mou.org>. For a general comment see Ted L. McDorman, Port State control: A comment on
the Tokyo MOU and issues of international law, 7 Asian YBIL 1997, pp. 229-241.
115
Established in 1992; for an overview see <www.acuerdolatino.int.ar>.
116
Established in 1996; for an overview (partly in Latin) see <www.caribbeanmou.org>.
117
Established in 1999; for an overview see <www.medmou.org/west_africa>.
Sea Memorandum of Understanding 118 ; the non-European waters of the

Mediterranean are covered by the Mediterranean Memorandum of Under-
standing 119 ; the Indian ocean coastal States cooperate in the Indian Ocean
Memorandum of Understanding 120 ; and the Arab States in the Gulf have
come together in the Riyadh Memorandum of Understanding.
All of them remain nominally voluntary arrangements. Only the Paris
Memorandum of Understanding has acquired a legally binding cloak for the
coastal member States of the European Union by its reincarnation as Direc-
tive 95/21/EC on Port State control of shipping, as repeatedly amended 121 . It
is a reincarnation that we will meet again as the interplay between interna-
tional rules and Community legislation continues to provide an interesting
testing ground as well as a battlefield in matters maritime – with special em-
phasis on maritime zones and functional jurisdiction in the European seas.
4. CONCURRENT JURISDICTION IN THE LAW OF THE SEA
In the world of sovereign States, which constitutes the international com-

munity, the increased presence of international organisations introduces an-
other layer of collective action. In terms of jurisdiction, however, most inter-
national organisations seem to coordinate the powers of their member States
rather than reinforce their presence or, even more, substitute them in their ju-
risdictional functions. A significant exception in this tidy allocation of sov-
ereign powers is the European Union and its déclinaison, the European
Community, the first regional economic integration organisation, which may
actually replace the member States in their functions towards their duties to
the international community as a whole.
This transfer of powers from the State to the Organisation is a characteris-
tic of the Community legal order 122 . In some cases, State competence over a
118
Established in 2000; for an overview see <www.bs.mou.org>.
119
Established in Malta in 1997; for an overview see <www.medmou.org>.
120
Established in 1998; for a overview see <www.iomou.org>.
121
It is currently Directive 2001/106/EC of the European Parliament and of the Council of
19 December 2001, amending Council Directive 95/21/EC concerning the enforcement, in re-
spect of shipping using Community ports and sailing in the waters under the jurisdiction of
the member States, of international standards of ship safety, pollution prevention and ship-
board living and working conditions (port State control), OJ L 19, p. 17, 22 January 2002,
available at <www.europa.eu>.
122
For the interplay between the States and the Union see Constantin A. Stephanou,
L’Union européenne et la souveraineté des États membres, Droit et justice. Mélanges en
l’honneur de Nicolas Valticos (Pedone, Paris 1999) pp. 355-366; Alan Dashwood, The rela-
specific matter has been transferred completely to the Community, thus de-
priving the member States of any possibility of further action. In the words
of the European Court of Justice:
“The power to adopt measures … has belonged fully and definitively to the
Community. Member States are therefore no longer entitled to exercise any
power of their own … The adoption of measures is a matter of Community
law. The transfer to the Community of powers in this matter being total and
definitive, … a failure [of the Council] to act could not in any case restore to
the member States the power and freedom to act unilaterally in this field” 123 .
In other cases, competence is shared between the member States and the or-
ganisation, to be exercised concurrently; or even remains exclusively at the
hands of the sovereign powers of the State. Although the attribution of pow-
ers is supposed to be regulated by the founding treaties of the Community and
the Union, in practice the system remains in a perennial state of flux, with
the borderline between State and Community power shifting typically to-
wards an ever closer Union.
All these would have been an obscure exercise in internal politics of an in-
ternational organisation but for the fact that the European Community ex-
pressly 124 and the European Union in fact 125 have indeed international person-
ality and may – indeed, regularly – act in the international scene concluding
international agreements with third parties. These treaties take typically the
form of a ‘mixed agreement’, defined as:
tionship between the member States and the European Union/European Community, 41
CMLR 2004, pp. 355-381; Enzo Cannizzaro, Fragmented sovereignty? The European Union
and its member States in the international arena, 13 Italian YBIL 2003, pp. 35-57. For an ear-
lier perspective see also Nicos Scandamis, #$ " % [=The State
in the European Community] (Ant. N. Sakkoulas, Athens 1986).
123
Case 804/79, Commission v. UK [1981] ECR 1045, at paragraphs 17, 18 and 20.
124
Article 210 of the Treaty establishing the European Community, originally established
in 1957 and since repeatedly amended and codified, OJ C 321E, 29 December 2006; text also
available at <www.europa.eu>.
125
See, instead of many others, Loïc Grard, L’Union européenne, sujet de droit interna-
tional, RGDIP 2006, pp. 337-372; Maria Gavouneli, International Law aspects of the Euro-
pean Union, 8 Tulane JICL 2000, pp. 147-165; Jan Klabbers, Presumptive personality: The
European Union in international law, in Martii Koskenniemi (ed.), International law aspects
if the European Union (1998) pp. 231-253; Nanette A.E.M. Neuwahl, Legal personality of the
European Union – International and institutional aspects, in V. Kronenberger (ed.), The EU
and the international legal order: Discord or harmony? (T.M.C. Asser Press, The Hague
2001) pp. 3-22. See also articles 24 and 38 of the Treaty establishing the European Union,
originally established in 1992, OJ C 191, 29 July 1992; and since repeatedly amended and
codified, OJ C 321E, 29 December 2006, text also available at <www.europa.eu>; Gilles de
Kerchove & Stephan Marquardt, Les accords internationaux conclus par l’Union européenne,
AFDI 2004, pp. 803-825.
“an agreement to which one or more of the Communities and the member
States are, or may become, parties, and which contains provisions some ele-
ments of which fall within Community competence, and some of which fall
within the competence of the member States” 126 .
The internal allocation of power becomes crucial in such circumstances, as it

is only reasonable for the other contracting party to wish to know exactly
who is bound by what obligation. The practice has arisen, therefore, when
the Community concludes an international agreement to provide a ‘declara-
tion of competence’ 127 , specifying which areas of the agreement fall within
the competence of the organisation and which within the competence of he
member States 128 . That said, the actual declaration is rarely very clear. In a
typical example, the Declaration made by the European Community under
Annex IX of the Law of the Sea Convention embarks upon a concise list of
issues falling within the exclusive competence but a rather brief reference to
issues of concurrent jurisdiction; indeed, the world community is duly fore-
warned of the fluidity in the allocation of competence:
“the scope and the exercise of Community competence are, by their nature,
subject to continuous development.” 129 .
126
I. Macleod, I.D. Henry & Stephen Hyett, The external relations of the European Com-
munities (Oxford 1996) at p. 143. On the notion of mixed agreements in general see D.
O’Keefe & H.G. Schermers (eds.), Mixed agreements (Kluwer, Deventer 1983); Nanette
Neuwahl, Joint participation in international treaties and the exercise of powers by the EEC
and its member States: Mixed agreements, 28 CMLR 1991, pp. 717-740; Allan Rosas, Mixed
Union – Mixed agreements, in Koskenniemi (ed.), supra, pp. 125-148; Joni Heliskoski, Mixed
agreements as a technique for organising the international relations of the European Com-
munity and its member States (Kluwer Law International, The Hague 2001); Panos Koutra-
kos, EU International Relations Law (Hart, Oxford 2006); Mustafa Karayigit, Why and to
what extent a common interpretative position for mixed agreements?, 11 European Foreign
Affairs Review 2006, pp. 445-469.
127
For the workings of this practice see Marise Cremona, External relations of the EU and
the member States: Competence, mixed agreements, international responsibility and effects of
international law, EUI Working Papers, Law No. 2006/22, at pp. 21-25; text also available at
<www.eui.it>.
128
Thus ECJ, Opinion 2/2000 on the Cartagena Protocol [2001] ECR I-09713, paragraph
16, also available at <www.curia.eu>. See also Laurence Burgorgue-Larsen, À propos de la
compétence partagée. Du particularisme de l’analyse en droit communautaire, RGDIP 2006,
pp. 373-390.
129
Declaration concerning the competence of the European Community with regard to
matters governed by the UN Convention on the Law of the Sea of 10 December 1982 and the
Agreement of 28 July 1994 relating to the implementation of Part XI of the Convention made
upon formal confirmation on 1 April 1998; text available at <www.un.org>. See also Daniel
Vignes, La Convention des Nations Unies sur le droit de la mer serait-elle un regrettable
accord mixte? La Communauté l’a pourtant conclue, Mélanges en hommage à Michel Wael-
broeck (1999) pp. 683-694; see also in general Kenneth R. Simmonds, The European Eco-
nomic Community and the new Law of the Sea, 218 RCADI 1989-IV, pp. 9-166.
Under these circumstances, any third party wishing to enter into an agree-
ment with the Community or the Union would face an uphill battle. Illumi-
nation must therefore be sought to the internal workings of the Union legal
order. Although the European Court of Justice is not comfortable with at-
tempts to allocate competence between the Community and the member
States 130 , still it has created one of the first such tests in the ERTA principle:
“[E]ach time the Community with a view to develop a common policy envis-
aged in the Treaty, adopts provisions laying down common rules, whatever
form they may take, the member States no longer have the right, acting indi-
vidually or even collectively, to undertake obligations which affect those
rules” 131 .
The ensuing shift in the allocation of power remains thus very much within
the prerogative of the Commission and is clearly not conducive to legal cer-
tainty. Nor could one find solace in the original allocation of powers in the
founding treaties, as shown in case C-176/03 132 , where the Commission and
the Council disagreed on the allocation of criminal jurisdiction in Council
Framework Decision 2003/80/JHA of 27 January 2003 on the protection of
the environment through criminal law 133 . In spite the fierce reaction of almost
all the member States, who intervened in the process, and although the Court
accepted that
“[a]s a general rule, neither criminal law nor the rules of criminal procedure
fall within the Community’s competence” 134 ,
it nevertheless proceeded to grant to the Community nothing less that inherent

powers of enforcement necessary for the proper execution of its functions:
“However, the last-mentioned finding does not prevent the Community legis-
lature, when the application of effective, proportionate and dissuasive criminal
130
Thus ECJ, Ruling 1/78 (re Draft Convention on the Physical Protection of Nuclear Ma-
terials) [1978] ECR 2151, paragraph 35; also available at <www.curia.eu>.
131
Case 22/70, Commission v. Council, [1070] ECR 263, paragraph 17; also available at
<www.curia.eu>.
132
Case C-176/03, Commission of the European Communities supported by the European
Parliament v. Council of the European Union supported by the Kingdom of Denmark, the
Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Re-
public, Ireland, the Kingdom of the Netherlands, the Portuguese Republic, the Republic of
Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ire-
land, 13 September 2005; available at <www.curia.eu>. See also the Opinion of Advocate-
General Dámaso Ruiz-Jarabo Colomer on the matter, Opinion of 26 May 2005, ibid.
133
OJ L 29, 2003, p. 55.
134
ECJ, Case C-176/03, supra, at paragraph 47 in fine, referring also to case 203/80, Casati
[1980] ECR 2595, paragraph 27, and case C-226/97 Lemmens [1998] ECR I-13711, para-
graph 19, both available at <www.curia.eu>.
penalties by the competence national authorities is an essential measure for

combating serious environmental offences, from taking measures which relate
to the criminal law of the member States which it considers necessary in order
to ensure that the rules which it lays down on environmental protection are
fully effective” 135 .
At the end of the day, the best way to ensure that the presumed allocation
of jurisdiction is the correct one is to actually ask the relevant organisation in
each particular case. Indeed, that is the solution adopted by the Law of the
Sea Convention, where the failure of the organisation or its member States to
provide such information within a reasonable period of time or to offer con-
tradictory information result in the joint and several liability of all concern-
ed 136 , both the institution and the States 137 .
The question of Community competence becomes even more important in
the Law of the Sea context as it reflects on the jurisdiction of the European
coastal States to take all measures necessary for the protection of the marine
environment in areas under their jurisdiction 138 . Indeed, the substantive part
135
Ibid., at paragraph 48 (my emphasis). For a first reaction on the case see the comments
by G. Dellis, $ %' * +@ @
+\ *@ [=Community competence for criminal
enforcement and the constitutional role of the Court of Justice of the European Communities],
To Syntagma 2006, pp. 542-552; also available in <www.tosyntagma.gr> [in Greek]. For a
more general discussion see F. Comte, Criminal environmental law and Community compe-
tence, EEnvLR 2003, pp. 147-156; M. Faure, European environmental criminal law: Do we
really need it?, EEnvLR 2004, pp. 18-29.
136
Annex IX, article 6 paragraph 2 LOSC.
137
See Christian Tomuschat, The international responsibility of the European Union, in
Enzo Cannizzaro (ed.), The European Union as an actor in international relations (Kluwer,
The Hague 2002) pp. 177-191; P.J. Kuiper & Esa Paasivirta, Further exploring international
responsibility. The European Community and the ILC’s project on responsibility of interna-
tional organisations, 1 International Organisations LR 2004, pp. 111-138. See also the ILC
Draft Articles on the Responsibility of International Organisations, as adopted so far; ILC Re-
port on the work of its 58th session (2006), UN Doc. A/61/10 (2006), chapter VI, paragraphs
80-91; and the four reports submitted to date by the Rapporteur Giorgio Gaja; both available
at <www.un.org>.
138
For an overview see André Nollkaemper & Ellen Hey, Implementation of the Law of
the Sea Convention at the regional level: European Community competence in regulating
safety and environmental aspects of shipping, 10 TIJMCL 1995, pp. 241-288; André Noll-
kaemper, The external competence of the Community with regard to the law of the marine
environmental protection: The frail legal support for grand ambitions, in Henrik Ringbom
(ed.), Competing norms in the law of marine environmental protection – Focus on ship safety
and pollution prevention (Kluwer Law International, The Hague 1997) pp. 165-186; Phoebe
Okowa, Legal consequences of EC participation in international environmental agreements, in
Malcolm D. Evans (ed.), Aspects of statehood and institutionalism in contemporary Europe.
EC/International Law Forum II (Dartmouth, Aldershot 1997) pp. 301-329; Ton IJlstra, De-
velopment of resource jurisdiction in the EC’s regional seas: National EEZ policies of EC
of the European legislation on the environmental protection of the coastal

waters has been the subject of further litigation.
Under EC Directive 2005/35/EC of the European Parliament and Council
of 7 September 2005 concerning ship-source pollution and the introduction
of penalties for infringements 139 as further complemented by EU Council
Framework Decision 2005/667/JHA of 12 July 2005 on the strengthening of
the criminal law framework for the enforcement of the law against ship-
source pollution 140 , the European Union moves to cover discharges of pollut-
ing substances in the seas, along the lines and in application of the MAR-
POL 73/78 Convention. The legal basis of the Framework Decision is again
challenged by the Commission before the European Court of Justice 141 , in the
wake of the decision in the case C-176/03 on the protection of the environ-
ment through criminal law 142 .
An additional challenge is also brought against the Directive, this time
through a request for a preliminary ruling 143 , regarding the compatibility of
the measures provided therein with the Law of the Sea Convention and
MARPOL standards. The Directive prohibits any discharge of polluting sub-
stances taking place in the internal waters, including the ports of the member
States, the territorial sea, straits used for international navigation, the exclu-
sive economic zone and the high seas 144 “if committed with intent, recklessly
or by serious negligence” 145 . In do doing, the Directive moves beyond the
rather complicated exceptions to MARPOL provisions 146 . In an unprece-
dented request, the Court has been asked to decide on the ensuing possible
member States in the Northeast Atlantic, the Mediterranean Sea and the Baltic Sea, 23 ODIL
1992, pp. 165-192.
139
OJ L 255, 30 September 2005, pp. 11-21.
140
Ibid., pp. 164-167.
141
ECJ, Case C-440/05, Commission of the European Communities supported by the Euro-
pean Parliament v. Council of the European Union supported by the Portuguese Republic, the
Kingdom of Belgium, the Republic of Finland, the French Republic, the Slovak Republic, the
Republic of Malta; the Republic of Hungary; the Kingdom of Denmark, the Kingdom of Swe-
den, Ireland, the Czech Republic, the Hellenic Republic, the Republic of Estonia, the United
Kingdom of Great Britain and Northern Ireland, the Republic of Latvia, the Republic of
Lithuania, the Kingdom of The Netherlands, the Republic of Austria and the Polish Republic;
for developments in this case between the organisation against its member States see
<www.curia.eu>.
142
See supra note 132.
143
ECJ, Case C-308/06, supra note 78 and text thereto.
144
Article 3 of the Directive.
145
Article 4 of the Directive.
146
See on the matter Iliana Christodoulou-Varotsi, Recent developments in the EC legal
framework on ship-source pollution: The ambivalence of the EC’s penal approach, 33 Trans-
portation LJ 2006, pp. 371-386.
incompatibility between the two sets of rules. This may not be a simple
question of compatibility – indeed, one has to keep in mind that the ECJ was
already given jurisdiction for a pre-emptive compatibility control under arti-
cle 300 (6) of the EC Treaty 147 . It may be complicated by the existence under
Community law of the (constitutional) obligation to achieve a higher level of
protection in environmental matters 148 : in theory, therefore, the acts in ques-
tion may be considered necessary for the fulfilment of the Community duty
of environmental protection, even if they exceed the framework prescribed
by the Law of the Sea Convention, to which the Community is also a party!
Whatever the outcome, the decision will greatly help to clarify the legal pa-
rameters of Community action in the exercise of its jurisdiction under the
law of the sea in general – and may still create another conundrum.
Nevertheless, the internal disarray aside, the common appearance of both
the international organisation and its member States in the international
arena results in further complications. International organisations – and cer-
tainly regional integration organisations, of which the European Union is the
prime example 149 – expect their member States to conduct themselves in their
external relations in a manner ensuring ‘close cooperation’ between them.
This principle, clearly based on the solidarity duty under article 10 of the
Treaty establishing the European Community 150 , has evolved from the prac-
tice of mixed agreements 151 and has become a constitutional principle in EC
external relations law 152 . As a result the member States are constrained in the
147
For an overview see Koutrakos, supra note 126, at pp. 186-192.
148
Article 174 paragraph 2 EC reads: “Community policy on the environment shall aim at
a high level of protection taking into account the diversity of situations in the various regions
of the Community. It shall be based on the precautionary principle and on the principles that
preventive action should be taken, that environmental damage should as a priority be rectified
at source and that the polluter should pay…”.
149
For an overview see Tullio Scovazzi (ed.), The protection of the environment in a con-
text of regional economic integration: The case of the European Community, the MERCO-
SUR and the NAFTA. Environment in the context of regional integration (Giuffrè, Milano
2001).
150
Article 10 EC reads: “Member States shall take all appropriate measures, whether gen-
eral or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting
from action taken by the institutions of the Community. They shall facilitate the achievement
of the Community’s tasks. They shall abstain from any measure which could jeopardise the
attainment of the objectives of this Treaty”.
151
Thus, for instance, ECJ, Opinion 2/91 (re ILO Convention no. 170) [1993] ECR I-1061,
paragraphs 36-38; ECJ, Opinion 1/94 (re WTO Agreements) [1994] ECR I-5267, paragraph
108; ECJ, case C-266/03, Commission v. Luxembourg [2005] ECR I-04805, paragraph 58.
152
Thus Cremona, supra note 127, at p. 6; Panos Koutrakos, The elusive quest for uniform-
ity in EC external relations, 4 Cambridge YB European Legal Studies 2001, pp. 243-271.
exercise of their jurisdiction in the context of another contractual arrange-

ment 153 .
In the first of such constraints, the European Community occasionally em-
ploys ‘disconnection clauses’ in international treaties, whereby it indicates to
the other contracting parties that as between the member States Community
rules will continue to apply to the exclusion of that particular treaty rules.
The European Court of Justice seems to consider this practice “a mechanism
seeking to prevent any conflict in the enforcement of the agreement” 154 but
there is no doubt that it creates two parallel treaty systems operating within
the same treaty arrangement 155 .
Another, perhaps more important, repercussion relates to the exclusivity of
the available dispute resolution mechanisms. Under the Community legal
order there is no doubt that disputes between the member States concerning
“the interpretation or application of [the] Treaty” 156 must be resolved by the
European Court of Justice. What happens, however, if the member States are
involved in disputes concerning the application of provisions found in sev-
eral treaties with the same content?
The issue has acquired particular importance in the context of a dispute
arising between the United Kingdom and Ireland as to the operation of the
MOX plant at Sellafield. Ireland chose to fight its case in all the fora avail-
153
Note, however, that this interdependence works both ways: In case C-239/03, Commis-
sion of the European Communities v. the French Republic, judgment of 7 October 2004, the
Court of Justice of the European Communities held that “by failing to take all appropriate
measures to prevent, abate and combat heavy and prolonged pollution of the Étang de Berre
and by failing to take due account of the requirements of Annex III to the Protocol for the pro-
tection of the Mediterranean Sea against pollution from land-based sources, signed at Athens
on 17 May 1980 and approved on behalf of the European Economic Community by Council
Decision 83/101/EEC of 28 February 1983, by amending the authorisation for the discharge
of substances covered by Annex II to the Protocol following the conclusion of the latter, the
French Republic has failed to fulfil its obligations under articles 4(1) and 8 of the Convention
for the protection of the Mediterranean Sea against pollution, signed at Barcelona on 16 Feb-
ruary 1976 and approved on behalf of the European Economic Community by Council Deci-
sion 77/585/EEC of 25 July 1977, under article 6(1) and (3) of the Protocol for the protection
of the Mediterranean Sea against pollution from land-based sources, […] and under article
300(7) EC”; available at <www.curia.eu>. For a brief comment see Michel Petite, Current le-
gal issues in the external relations of the European Union, EUI Working Paper, Law no.
2006/38, at pp. 9-10.
154
ECJ, Opinion 1/2003 (Competence of the Community to conclude the new Lugano
Convention on jurisdiction and enforcement of judgments in civil and commercial matters), 7
February 2006, paragraph 130; available at <www.curia.eu>
155
See also the critique by Constantin P. Économidès & Alexandros G. Kolliopoulos, La
clause de déconnexion en faveur de droit communautaire: Une pratique critiquable, RGDIP
2006, pp. 273-302.
156
Article 292 EC.
able to her under the conventions covering the circumstances of the case.
Thus it first turned to an arbitral tribunal constituted under the Convention
for the Protection of the Marine Environment of the North-East Atlantic
(OSPAR) 157 . Moreover, as the question involved “international movements
of radioactive materials and the protection of the marine environment of the
Irish Sea” under the Law of the Sea Convention, it clearly fell under the
compulsory system of dispute resolution created by the Convention. On 25
October 2001 Ireland referred the case to the arbitral tribunal provided for in
Annex VII, under article 287 of the Convention 158 . In addition, on 9 Novem-
ber 2001, pursuant to article 290(5) of the Law of the Sea Convention, it re-
quested the International Tribunal for the Law of the Sea for provisional
measures 159 . However, the EC Commission claimed that the dispute thus de-
scribed fell within the areas of shared jurisdiction between the Community
and the member States and thus started proceedings against Ireland under ar-
ticle 226 of the EC Treaty for failure to fulfil its obligations. Both the Advo-
cate General Luís Miguel Poiares Pessoa Maduro and the Court concurred.
They considered that
“[t]he obligation devolving on Member States, set out in Article 292 EC, to
have recourse to the Community judicial system and to respect the Court’s ex-
clusive jurisdiction, which is a fundamental feature of that system, must be un-
derstood as a specific expression of Member States’ more general duty of loy-
alty resulting from Article 10 EC.” 160
157
Final award of 2 July 2003 in the dispute concerning access to information under Article
9 of the OSPAR Convention; available at <www.pca-cpa-org>. See also T. McDorman, Ac-
cess to information under Article 9 OSPAR Convention (Ireland v. UK), Final award, 98 AJIL
2004, pp. 330-339.
158
The issue remains pending before the Arbitral Tribunal; for latest developments see
<www.pca-cpa.org>. For a general discussion of the case see R.R. Churchill & Joanne Scott,
The MOX Plant litigation: The first half-life, 53 ICLQ 2004, pp. 643-676; Volker Röben, The
Order of the UNCLOS Annex VII Arbitral Tribunal to suspend proceedings in the case of the
MOX Plant at Sellafield: How much international solidarity?, 73 Nordic JIL 2004, pp. 223-
245; Yuval Shavy, The first MOX Plant award: The need to harmonise competing environ-
mental regimes and dispute settlement procedures, 17 Leiden JIL 2004, pp. 815-827.
159
ITLOS, The MOX Plant case, Ireland v. UK, provisional measures, Order of 3 Decem-
ber 2001; available at <www.itlos.org>. See also Barbara Kwiatkowska, The Ireland v.
United Kingdom (Mox Plant) case: Applying the doctrine of treaty parallelism, 18 TIJMCL
2003, pp. 1-58; Malcolm J.C. Forster, The MOX Plant case – Provisional measures in the In-
ternational Tribunal for the Law of the Sea, 16 Leiden JIL 2003, pp. 610-619.
160
ECJ, case C-459/03, Commission v. Ireland, 30 May 2006, at paragraph 169; see also
the Opinion of the Advocate-General M. Poiares Maduro delivered on 18 January 2006, para-
graphs 54-55; both available at <www.curia.eu>.
This principle of loyalty, however, also includes an additional obligation “of

prior information and consultation” 161 , particular in cases where the dispute
in question
“relates essentially to undertakings resulting from a mixed agreement which
relates to an area, namely the protection and preservation of the marine envi-
ronment, in which the respective areas of competence of the Community and
the Member States are liable to be closely interrelated, as is, moreover, evidenced
by the Declaration of Community competence and the appendix thereto.”162 .
The findings of the Court were indeed already evidenced in practice. In a

case almost coincidental in timing, Belgium and The Netherlands were able
to bring the Iron Rijn case 163 , an issue pertaining to both protection of the en-
vironment and transport, both Community competences, before an interna-
tional arbitral tribunal without incurring the Commission’s ire – and they ac-
complished this feat by simply involving the Commission authorities in the
negotiations and showing to their satisfaction that the bilateral issue would
have no impact upon Community policies.
The complexity and the variety of the jurisdictional issues generated by
the participation of international organisations, and especially the European
Union, in sea affairs can only be rivalled by the intricacies of the interplay
between the member States and the organisation in that same field 164 . Impor-
tant decisions, which already required consensus by the manifold manifesta-
tions of State jurisdiction, are further complicated by the additional obliga-
tion to coordinate and eventually reconcile the competing interests of a large
number of important States, operating under their different guises, in a juris-
dictional conundrum of Herculean proportions. The implications are to be
visited in the pages to come – with no results guaranteed.
161
Ibid., at paragraph 181.
162
Ibid., at paragraph 176.
163
Permanent Court of Arbitration, Arbitration regarding the Iron Rhine (‘IJzeren Rijn’)
railway, Belgium v. The Netherlands, award of 24 May 2005, paragraphs 220-223; available
at <www.pca-cpa.org>. See in general Virginie Barral, La sentence du Rhin de fer, une
nouvelle étape dans la prise en compte du droit de l’environnement par la justice internationale,
RGDIP 2006, pp. 647-668; Nikolaos Lavranos, The MOX Plant and IJzeren Rijn disputes:
Which court is the supreme arbiter?, 19 Leiden JIL 2006, pp. 223-246.
164
For the briefest of overview of the issues involved see Annie Cudennec & Gaëlle Gueguen-
Hallouët (éds.), Le juge communautaire et la mer (Bruylant, Bruxelles 2003); Tullio Treves
(ed.), The Law of the Sea. The European Union and its member States (Martinus Nijhoff, The
Hague 1997); Ellen Hey, The European Community, the Law of the Sea and accountability.
An ever changing and challenging relationship, in Malcolm D. Evans (ed.), Aspects of state-
hood and institutionalism in contemporary Europe (Aldershot, 1997) pp. 277-300.
PART II
CHALLENGES TO THE JURISDICTIONAL ZONES
The central question remains: Is this multiplicity of jurisdictional zones and

areas final? To my mind, it depends upon the person, who is called to answer
the question. Those who consider the Law of the Sea Convention as the final
pronouncement of the world community on matters maritime would natu-
rally tend to believe that the situation has been finalised and no further
changes are possible. On the other hand, those who recognise that, in spite of
its seminal importance and even because of it, the Law of the Sea Conven-
tion will need to remain a living, breathing instrument, fully adjustable and
adjusted to emerging needs and conditions, would perhaps be ready to rec-
oncile emerging new trends with the solid legal basis of the Convention. In-
deed, it is quite probable that the future is not drawn in terms of black and
white but rather in shades of grey.
States have shown a very commendable tendency to rein in their wish to
expand seawards – at least in so many words. Claims of creeping jurisdiction
are not set in regulatory language but are rather based on construing new
ways to read the provisions establishing the existing maritime zones.
Whether this restraint is due to a temperamental horror jurisdictionis – in the
words of Tullio Scovazzi 1 – or rather it constitutes a sensible approach to the
progressive development of the law of the sea is the main question this book
seeks to answer. In order to do so, I will attempt in the pages to come to re-
view some of the jurisdictional manifestations in the Law of the Sea Con-
vention, most notably those where the contradictory principles of State juris-
diction and the freedom of the high seas are best embodied, with a view to
decide on the shape of things to come.
In the following Part II, I intend to discuss the challenges presented to the
existing jurisdictional zones – variations to the rule. In Chapter 3 the focus
will be on the jurisdiction of the coastal State over the Exclusive Economic
Zone. Strictly defined in terms of length and content in the LOS Convention,
the notion of the EEZ has nevertheless shown major diversification in prac-
1
Tullio Scovazzi, A contradictory and counterproductive regime, in Roberta Garabello &
Tullio Scovazzi (eds.), The protection of the underwater cultural heritage before and after the
2001 UNESCO Convention (Martinus Nijhoff, Leiden/Boston 2003) pp. 3-17, at p. 6.
tice, generating maritime zones of variable length and divergent content, e.g.
fisheries zones. The major challenge today comes from the creation of ‘eco-
logical zones’, where the coastal State shifts the emphasis from economic
considerations to the protection of the environment; and the tools available
include the prohibition of passage through such a zone, thus encroaching fur-
ther upon the freedom of the seas. Do the provisions on the EEZ and the en-
suing allocation of powers suffice as legal basis for the creation of such
zones? In other words, is it a progressive development of existing regula-
tions or a deviation from the rule?
In Chapter 4 the same question will be posed in regard to the jurisdiction
of the flag State, mainly in fisheries protection. More and more States par-
ticipate in fisheries protection schemes, which involve an exchange of en-
forcement powers over their fishing boats but also an exercise of jurisdiction
over areas of the high seas. How could these pacta tertii develop into objec-
tive regimes of fisheries protection in the high seas? Is there sufficient legal
basis for such a reading of the Convention or (again) we are moving away
from both the letter and the spirit of the rules?
In all cases, it is important to discern between attempts to rewrite the con-
tractual terms or even construe them in an innovative manner from the
straight forward breach of such terms. In the words of Dame Rosalyn Hig-
gins in her centennial lecture in the American Society of International Law
(2006), there is a red thin line between constructive analysis and moving be-
yond the scope of a regulatory provision.
CHAPTER 3
JURISDICTION IN THE EXCLUSIVE ECONOMIC ZONE
The exclusive economic zone was one of the two novelties brought by the
Law of the Sea Convention to the traditional law of the sea, the other being
the deep seabed Area 1 . The term was first encountered in the workings of the
Organisation of African Unity 2 , later to be codified in a series of Draft Arti-
cles on Exclusive Economic Zone 3 , as the embodiment of a claim to perma-
nent sovereignty over “the renewable and non-renewable natural resources” 4 ,
albeit without undue interference with other legitimate uses of the sea,
namely freedom of navigation, overflight and laying of cables and pipelines 5 .
It was, nevertheless, a concept developed from the ever increasing Latin
American pronouncements on wider zones of maritime jurisdiction, compris-
ing the diverse guises of the patrimonial sea 6 as codified in the 1972 Decla-
ration of Santo Domingo 7 . This newly established concept, appearing in a
1
Part XI LOSC.
2
See Organisation of African Unity, Council of Ministers, Declaration on the Issues of the
Law of the Sea, May 1973. For a general overview of such discussions see David Attard, The
exclusive economic zone in international law (Oxford 1987) at pp. 20-26; T.O. Elias, New ho-
rizons in the Law of the Sea (1979) at pp. 25-26.
3
Draft Articles on Exclusive Economic Zone, proposed by Algeria, Cameroon, Ghana,
Ivory Coast, Kenya, Liberia, Madagascar, Mauritius, Senegal, Sierra Leone, Somalia, Sudan,
Tunisia and United Republic of Tanzania to the UN General Assembly Committee on the
peaceful uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction,
Sub-Committee III, UN Doc. A/AC.138/SC.II/L.40, 16 July 1973, 12 ILM 1973, pp. 1246-
1249. For the whole story see Tayo O. Akintoba, African States and contemporary interna-
tional law. A case study of the 1982 Law of the Sea Convention and the exclusive economic
zone (Martinus Nijhoff, The Hague 1996).
4
Draft Articles, supra, article II.
5
Ibid., article IV.
6
Jorge Castañeda, The concept of patrimonial sea in international law, 12 Indian JIL 1972,
pp. 535-542; L.D.M. Nelson, The patrimonial sea, 22 ICLQ 1973, pp. 668-686; Andrés Agui-
lar, The patrimonial sea or economic zone concept, 11 San Diego LR 1974, pp. 579-602;
Louis de Gastines, La mer patrimoniale, 79 RGDIP 1975, pp. 447-457.
7
11 ILM 1972, pp. 892-893; Norma G. Sabia de Barberis, Le développement de ‘zone
économique’ en Amérique latine, 7 Thesaurus Acroasium 1977, pp. 529-534; F.V. García
Amador, The origins of the concept of an Exclusive Economic Zone: Latin American practice
and legislation in Francisco Orrego Vicuña (ed.), The Exclusive Economic Zone: A Latin Ameri-
can perspective (1984) pp. 7-25; Francisco Orrego Vicuña, The exclusive economic zone. Re-
barely concluded conventional text after a nine-year long and tortuous nego-
tiation 8 , acquired immediately customary law status: by 24 February 1982,
even before the Law of the Sea Convention was signed, the International
Court of Justice recognised, in a brief incidental comment, the new zone as
“part of modern international law” 9 .
However, the wild success of the new zone of jurisdiction did not neces-
sarily suggest that the world community was equally clear as to its legal na-
ture, including its legal basis, or the diverse manifestations of its operation.
Agreed upon as a compromise between the creeping jurisdictional aspira-
tions of the coastal State and the high seas purists of the flag States, the ex-
clusive economic zone necessitated two extensive articles to set out the bare
minimum of jurisdiction apportioned to the respective users of the seas. The
tension that gave birth to the new zone has not abated since; indeed, its latest
manifestations are the most organised attempt so far to reverse the balance
achieved at the Third Conference on the Law of the Sea.
1. THE BALANCE OF POWER
The tug-of-war between the powers of the coastal State and the ‘other’
third States in the EEZ is immediately obvious in Part V of the Law of the
Sea Convention, where the rights, jurisdiction and duties of the coastal State
are set out in article 56; the rights and duties of ‘other’ States are indicated in
article 58 LOSC; and there is even a third provision, in article 59 LOSC,
dealing with residual rights,
“in cases where [the] Convention does not attribute rights or jurisdiction to the
coastal State or to other States within the exclusive economic zone”.
Somewhere in the balance among the enumeration of exclusive rights and
the inherent restrictions posed upon instances of concurrent jurisdiction lies
the true nature of the EEZ and consequently the authoritative description of
gime and legal nature under international law (Cambridge 1989) at pp. 11-12; Hugo Caminos,
Harmonisation of pre-existing 200-mile claims in the Latin American region with the United
Nations Convention on the Law of the Sea and its exclusive economic zone, 30 U Miami
IALR 1998, pp. 9-30.
8
See, among others, B. Buzan, Negotiating by consensus: Developments in technique at
the UN Conference on the Law of the Sea, 75 AJIL 1981, pp. 324-348.
9
Continental Shelf Tunisia/Libyan Arab Jamahiriya, ICJ Reports 1982, paragraph 100,
available at <www.icj-cij.org>. See also Barbara Kwiatkowska, The 200-mile exclusive eco-
nomic zone in the new law of the sea (Martinus Nijhoff, Dordrecht 1989) pp. 27-37.
JURISDICTION IN THE EXCLUSIVE ECONOMIC ZONE 63
the functions attributed to the right-holder, be it the coastal State, the other
State or a third category altogether.
Under article 56 of the LOS Convention, the coastal State has acquired
two types of powers. First, it is granted ‘sovereign rights’ to carry out explo-
ration and exploitation with regard to, on the one hand,
“the natural resources, whether living or non-living of the waters superjacent
to the seabed and of the seabed and its subsoil” 10 ;
and, on the other hand, other economic activities, such as the production of
energy from the water, currents and winds 11 . The distinction between the two
must be attributed to historical accident, as the antecedents of the EEZ were
almost totally concentrated on the administration of natural resources 12 ; other
activities seem to have been added as an afterthought in an effort to instil in
the final text the appearance of a comprehensive approach. The additional
obligation for the coastal State to engage in conservation and managing ac-
tivities regarding natural resources confirms that the emphasis remained on
securing what was known and appreciable at the time, without relinquishing
rights to any other, emerging or even totally novel, economic activity. Con-
servation and management as a holistic comprehensive parameter to eco-
nomic exploitation would have to wait almost twenty years for the 1992 Rio
Declaration on Environment and Development 13 and the ensuing next gen-
eration of environmental instruments, such as the 1992 Framework Conven-
tion on Climate Change 14 , the 1992 Convention on Biological Diversity 15 or
the 1997 Convention on the non-navigational uses of international water-
courses 16 .
10
11
Ibid. For an interesting idea see Martin Tsamenyi & Max Herriman, Ocean energy and
the law of the sea: The need of a protocol, 29 ODIL 1998, pp. 3-19.
12
See, instead of many others, Ann L. Hollick, The origins of the 200-mile offshore zones,
71 AJIL 1977, pp. 494-500.
13
31 ILM 1992, pp. 874-880. For a comment on its importance see Patricia Birnie & Alan
Boyle, International law and the environment (2nd ed., Oxford 2002) at pp. 82-84; Philippe
Sands, Principles of International Environmental Law (Cambridge 2003) at pp. 52-63.
14
31 ILM 1992, pp. 849-873; Birnie & Boyle, supra, pp. 523-533; Alexandre Kiss & Jean-
Pierre Beurier, Droit international de l’environnement (3rd ed., Pedone, Paris 2004) pp. 250-
270.
15
31 ILM 1992, pp. 818-848; Birnie & Boyle, supra, pp. 568-590. See in general Michael
Bowman & Catherine Redgwell (eds.), International law and the conservation of biological
diversity (Kluwer Law International, The Hague 1996).
16
36 ILM 1997, pp. 700-720; Stephen C. McCaffrey & Mpazi Sinjela, The 1997 UN Con-
vention on International Watercourses, 92 AJIL 1998, pp. 97-107; Stephen C. McCaffrey, The
law of international watercourses. Non navigational uses (Oxford 2001), especially at pp.
297-413.
Second, the coastal State was granted ‘jurisdiction’ over specific activities,
namely the establishment and use of artificial islands, installations and struc-
tures; marine scientific research; and the protection and preservation of the
marine environment. It is clear to my mind that the vastness of powers thus
accrued to the coastal State was not fully understood at the time: the estab-
lishment and use of offshore installations on the continental shelf was con-
ceived as a privilege of the coastal State under the 1958 Geneva Convention
on the Continental Shelf 17 ; marine scientific research activities had little
practical impact to most States 18 ; whereas the world community at large con-
sidered the notion of protection and preservation of the marine environment
merely related to the oil pollution instruments already adopted in the IMO
context 19 .
It was, nevertheless, clearly understood that the notion of ‘sovereign
rights’ denotes something less than full sovereignty – although what exactly
would that be remains uncertain 20 . Indeed, such sovereign rights could only
17
Article 5 paragraphs 2-7 of the Geneva Convention on the Continental Shelf; 499 UNTS
311. See, in general, Nikos Papadakis, The international legal regime of artificial islands
(Leyden 1977); Fritz Münch, Les îles artificielles, 38 ZaöRV 1978, pp. 933-958; Maria Ga-
vouneli, Pollution from offshore installations (Graham & Trotman/Martinus Nijhoff, 1995).
18
For an earlier understanding see Riccardo Pisillo Mazzeschi, La ricerca scientifica ed il
nuovo diritto internazionale del mare, in Tullio Treves (ed.), La ricerca scientifica nell’evoluzione
del diritto di mare (Giuffrè, Milano 1978) pp. 9-52; L Caflisch & J. Piccard, The legal regime of
marine scientific research and the Third United Nations Conference on the Law of the Sea, 38
ZaöRV 1978, pp. 848-901; A.H.A. Soons, Marine scientific research and the law of the sea
(Martinus Nijhoff, The Hague 1982); Annick de Marffy, Marine scientific research, in R.-J.
Dupuy & Daniel Vignes (eds.), A handbook on the New Law of the Sea (vol. 2, Dordrecht
1999) pp. 1127-1146. See also M. Stolker, Marine scientific research and customary law. Le-
gal regime within the exclusive economic zone, 23 Thesaurus Acroasium 1998, pp. 435-445;
Florian H.T. Wegelein, Marine scientific research. The operation and status of research ves-
sels and other platforms in international law (Martinus Nijhoff, Leiden 2005); Yoshifumi Ta-
naka, Obligation to co-operate in marine scientific research and the conservation of marine
living resources, 65 ZaöRV 2005, pp. 937-965.
19
See, among many others, V.I. Andrianov, The role of the International Maritime Organi-
sation in implementing the 1982 UNCLOS, 14 Marine Policy 1990, pp. 120-124; Edgar Gold,
International shipping and the new law of the sea: new directions for a traditional use?, 20
ODIL 1989, pp. 433-444; as well as the discussion on the IMO interface with the Law of the
Sea Convention in Myron H. Nordquist (ed.), Current maritime issues and the International
Maritime Organisation (Martinus Nijhoff, The Hague 1999) with contributions by Rüdiger
Wolfrum, pp. 223-236; Shabtai Rosenne, pp. 251-268; and Agustín Blanco-Bazán, pp. 269-287.
20
Joe Verhoeven, Droit international public (Larcier, Bruxelles 2000) at p. 550 : “On ne
peut qu’hésiter à l’admettre, tant paraît artificielle la distinction prétendument établie entre les
droits « souverains » et une « souveraineté »”. On the parallel notion of sovereign rights over
the continental shelf see also Aegean Sea continental shelf case, Greece v. Turkey, ICJ Re-
ports 1978, paragraph 81; Jean-François Pulvenis, Le plateau continental. Définition et régime
des ressources, in René-Jean Dupuy & Daniel Vignes (éds.), Traité du nouveau droit de la
mer (Economica/Bruylant, Paris/Bruxelles 1985) pp. 275-336, at p. 323.
be exercised once an EEZ was proclaimed; contrary to the territorial sea and
the continental shelf, which constitute attributes of the State ab initio, the
exclusive economic zone remains a discretionary zone, the existence of
which must be proclaimed to the world. ‘Jurisdiction’ is this context must
signify an even more restricted exercise of powers: it has been argued that
the existence of sovereign rights creates a presumption of sovereignty for the
coastal State which would supersede a jurisdictional claim by another State
whereas claims of jurisdiction operate on the same level of equality and must
be resolved through the standard dispute settlement procedures 21 .
The enumeration of rights and duties for other, third States in article 58
LOSC is less specific and certainly more comprehensive. The non-coastal
State retains all the freedoms of the high seas, as set out in article 87 of the
Convention, with the exception of the freedom of fishing, which has become
an exclusive sovereign right of the coastal State. Is there an assimilation to
the high seas regime lurking behind this deceptively straightforward lan-
guage? The maritime States present during the negotiations in the Third UN
Conference on the Law of the Sea have certainly indicated so – indeed, it
would fall perfectly within their understanding of the EEZ as an area of the
high seas, over which the coastal State had acquired certain strictly-defined
competences 22 . A closer reading, however, reveals three important qualifica-
tions: the freedoms exercisable in the exclusive economic zone are very spe-
cifically those
“of navigation and oversight and of the laying of submarine cables and pipe-
lines and other internationally lawful uses of the sea, related to these freedoms,
such as those associated with the operation of ships, aircraft and submarine ca-
bles and pipelines, ...” 23
and they apply therein only
“in so far as they are not incompatible with this Part”24
21
Thus Anastasia Strati, +'@ $ @ ^ [=The Exclusive Economic
Zone], in Haritini Dipla & Christos Rozakis (eds.), ' * "
#' [=The Law of the Sea and its application in Greece] (Aegean Institute on the
Law of the Sea and Maritime Law, Athens 2004) pp. 145-207, at p. 154.
22
Bernard H. Oxman, An analysis of the Exclusive Economic Zone as formulated in the
Informal Composite Negotiating Text, in Thomas A. Clingan, Jr. (ed.), Law of the Sea: State
practice in zones of special jurisdiction (1982) pp. 57-78; Mario Scerni, La zone économique
exclusive : son importance, sa nature juridique et les problèmes principaux relatifs, 7 Thesaurus
Acroasium 1977, pp. 157-184. See for the general discussion Attard, supra note 2, pp. 70-125;
Orrego Vicuña, supra note 7, at pp. 30-33.
23
Article 58 paragraph 1 LOSC. For an attempt to codify the proper exercise of these
rights in the EEZ see Mark J. Valencia & Kazumine Akimoto, Guidelines for navigation and
overflight in the exclusive economic zone, 30 Marine Policy 2006, pp. 704-711.
24
of the Law of the Sea Convention and with

“due regard to the rights and duties of the coastal State” 25 .
No wholesale import of the high seas regime is anywhere to be found; a con-
clusion corroborated by the wording of article 78 of the LOS Convention on
the legal status of waters superjacent to the continental shelf, which repeats
verbatim the no-effect clause of article 3 of the 1958 Continental Shelf Con-
vention:
“The rights of the coastal State over the continental shelf do not affect the legal
status of the superjacent waters or of the air space above those waters”,
omitting the crucial phrase: ‘as high seas’ 26 .
The general agreement that the exclusive economic zone constitutes a ‘ter-
tium genus’ 27 , a sui generis area 28 , neither a part of the high seas nor of the
territorial waters (in spite of its origins 29 ), resembles too much the proverbial
cough of the cantor before a difficult musical passage for relief. Indeed, the
carefully orchestrated efforts of the drafters to allow no possibility for devel-
oping compétences d’attribution, in the words of René-Jean Dupuy 30 , has left
even the International Tribunal on the Law of the Sea at a loss to identify the
exact powers of the States in the EEZ. In its very first cases on the M/V Sai-
25
Article 58 paragraph 3 LOSC. For a rather predictable definition of the term see George
K. Walker, Defining terms in the 1982 Law of the Sea Convention IV: The last round of defi-
nitions proposed by the International Law Association (American Branch) Law of the Sea
Committee, 36 California Western ILJ 2005, pp. 133-183 at p. 175.
26
Thus also Attard, supra note 2, at p. 63.
27
Thus the International Court of Justice in the Fisheries Jurisdiction cases, UK v. Iceland,
ICJ Reports 1974, paragraph 54; Federal Republic of Germany v. Iceland, ICJ Reports 1974,
paragraph 46, both available at <www.icj-cij.org>.
28
Thus Andrés Aguilar, in his capacity as Chairman of UNCLOS III Second Committee,
in his introductory note to the Revised Single Negotiating Text, 5 Official Records 1974, at p.
153; Jorge Castañeda, Negotiations on the Exclusive Economic Zone at the Third United Na-
tions Conference on the Law of the Sea, Essays in honour of Judge Lachs (Martinus Nijhoff,
1984) pp. 605-623, at p. 615-616.
29
F.V. García Amador, The Latin American contribution to the development of the law of
the sea, 68 AJIL 1974, pp. 33-50. See also the arbitral award in the Guinea/Guinea Bissau
maritime delimitation case, 77 ILR 1985, paragraph 124; Nganda Kingue, La sentence du 14
février 1985 du Tribunal d’arbitrage dans l’affaire de la délimitation de la frontière maritime
entre la Guinée et la Guinée-Bissau, RGDIP 1987, pp. 45-82; Marie-Christine Aquarone, The
1985 Guinea/Guinea Bissau maritime boundary case and its implications, 26 ODIL 1995, pp.
413-431; Georges Labrecque, Les frontières maritimes internationales. Géopolitique de la dé-
limitation en mer (2e éd., L’Harmattan, Paris 2004) at pp. 333-338.
30
René-Jean Dupuy, L’océan partagé : Analyse d’une négociation – Troisième Conférence
des Nations Unies pour le droit de la mer (Pedone, Paris 1979) at p. 76.
ga 31 , which encompassed the whole spectrum of its powers and presumably

set the tone for its future actions, the Tribunal chose not to address the ques-
tion whether bunkering in the EEZ was an activity associated with fishing
activities, in which case it falls under the jurisdiction of the coastal State as
the latter has sovereign rights over the exploitation of living natural re-
sources therein; or an activity associated with the operation of ships in the
meaning of article 58 of the Convention, in which case it constitutes part of
the freedom of navigation guaranteed to the other States; or even a residual
right under article 59 of the Convention, not falling under the jurisdiction of
either State, in which case any potential conflict would have to
“be resolved on the basis of equity and in the light of all relevant circum-
stances, taking into account the respective importance of the interests involved
to the parties as well as to the world community as a whole.” 32 .
It is perhaps appropriate that the Tribunal, deciding on an application for
prompt release of vessel and crew under article 292 of the LOS Convention 33 ,
restricted itself to a finding on the admissibility as several of its judges came
up with different conclusions. The then vice-president Wolfrum and Judge
Yamamoto forcefully objected in their dissenting opinion to what they per-
ceived as the Tribunal’s rather obscurely expressed preference for qualifying
bunkering as an ancillary service to fishing and thus
31
ITLOS, The M/V ‘Saiga’ case, Saint Vincent & the Grenadines v. Guinea, 1997 (prompt
release); The M/V Saiga (no. 2) case, Saint Vincent & the Grenadines v. Guinea, 1998 (provi-
sional measures), 1999 (merits); all available at <www.itlos.org>.
32
Article 59 LOSC. For a general discussion on residual rights see Syméon Karagiannis,
L’article 59 de la Convention des Nations Unies sur le droit de la mer (ou les mystères de la
nature juridique de la zone économique exclusive), 27 RBDI 2004, pp. 325-418; A. Righeti, Il
contenuto dell’articolo 59 della Convenzione sur diritto del mare del 1982, in Umberto Lean-
da (ed.), Le régime juridique international de la mer Méditerranée (Guiffrè, Milano 1987) pp.
227-230.
33
For an understanding of this unique (essentially human rights) procedure see Joseph Akl,
La procédure de mainlevée du navire ou prompte libération de son équipage devant le Tribu-
nal international du droit de la mer, 6 ADM 2001, pp. 219-246; Imen Gallala, La notion de
caution raisonnable dans la jurisprudence du Tribunal international du droit de la mer, 105
RGDIP 2001, pp. 931-968; Miguel García García-Revillo, The release of crew according to
the ITLOS jurisprudence, in Giuseppe Cataldi (ed.), The Mediterranean and the Law of the
Sea at the dawn of the 21st century: Actes du colloque inaugural de la Association internatio-
nale du Droit de la mer, Naples, 22-23 mars 2001 (Bruylant, Bruxelles 2002) pp. 97-112;
Erik Franckx, ‘Reasonable bond’ in the practice of the International Tribunal for the Law of
the Sea, 32 California Western ILJ 2002, pp. 303-342; Jean-Pierre Queneudec, À propos de la
procédure de prompte mainlevée devant le Tribunal international du droit de la mer, 8 ADM
2003, pp. 79-92; Yoshifumi Tanaka, Prompt release in the UN Convention on the Law of the
Sea: Some reflections on the ITLOS jurisprudence, 31 NILR 2004, pp. 237-271.
“an activity which can be assimilated to the activities which a coastal State may
regulate in the exercise of its sovereign rights concerning marine living re-
sources in the exclusive economic zone.” 34 .
When the issue was further raised in the merits of the case, Judge Vukas was
quite categorical in his separate opinion that
“bunkering should, although a rather new activity at the time not expressly
mentioned at the Conference, be considered an international ‘lawful use of the
sea’ in the sense of article 58(1) of the Convention. It is related to the freedom
of navigation ‘and associated with the operation of ships’” 35 .
Judge Laing seems to have based his lengthy separate opinion on that same
assumption 36 whereas Judge Zhao, in his own separate opinion, disagreed
and considered it part of commercial activities carried out in the EEZ, to be
undertaken only upon a prior agreement with the coastal State 37 . In comparison,
the decision of the ICJ in the Nicaragua case that the laying of mines in the
EEZ was prejudicial to the right of access to ports, an expression of the right
to communication and maritime commerce, which necessitates the unhin-
dered exercise of the right of navigation guaranteed therein, becomes the
very definition of clarity 38 .
Regardless of the legal nature of the EEZ and its repercussions, there is no
doubt that the jurisdiction and rights attributed to both the coastal and the
‘other’ States remain essentially functional, to be exercised according to
34
ITLOS, The M/V Saiga case, supra note 31, Dissenting opinion of Vice-President
Wolfrum and Judge Yamamoto, paragraph 21, available at <www.itlos.org>. See in general
Raymond Goy, Les premières décisions du Tribunal international sur le droit de la mer,
Espaces et ressources maritimes 1997, pp. 135-156; E.D. Brown, The M/V Saiga case on
prompt release of detained vessels: The first judgment of the International Tribunal of the
Law of the Sea, Marine Policy 1998, pp. 307-326; Vaughan Lowe, The M/V Saiga: The first
case in the International Tribunal on the Law of the Sea, 48 ICLQ 1999, pp. 179-199.
35
ITLOS, The M/V Saiga (no.2) case, supra note 31, 1999, Separate opinion of Judge Vu-
kas, paragraph 17, available at <www.itlos.org>. See also Francisco Orrego Vicuña, L’affaire
Saiga et l’interprétation judiciaire des droits et devoirs des États dans la ZEE, 13 Espaces et
ressources maritimes 1999-2000, pp. 43-60; Louise de la Fayette, ITLOS and the saga of
Saiga: Peaceful settlement of a Law of the Sea dispute, TIJMCL 2000, pp. 355-392; idem.,
The M/V Saiga (no.2) case (St. Vincent and the Grenadines v. Guinea), Judgment, 49 ICLQ
2000, pp. 467-476; David Anderson, The regulation of fishing and related activities in exclu-
sive economic zones, in Erik Franckx & Philippe Gautier (eds.), The Exclusive Economic
Zone and the UN Convention on the Law of the Sea, 1982-2000: A preliminary assessment of
State practice (Bruylant, Brussels 2003) pp. 31-50.
36
Ibid., Separate opinion of Judge Laing, available at <www.itlos.org>.
37
Ibid., Separate opinion of Judge Zhao, in fine, available at <www.itlos.org>.
38
Military and paramilitary activities in and against Nicaragua, Nicaragua v. United
States of America, Merits, ICJ Reports 1986, paragraph 214.
their (economic 39 ) purpose and in view of the corresponding rights and duties
of others on the same area. Although the existence of parallel and often con-
tradictory obligations is nothing new in international law 40 and, more specifi-
cally, in the law of the sea 41 , the necessity to adjudicate each case on its mer-
its and the specific circumstances surrounding it adds more than a sprinkle of
uncertainty in the process. The ultimate question remains not the type of bal-
ance required in that process but rather whether, in the pursuit of the final
goal, the exercise of one of the parallel and contradictory rights may well be
wholly obliterated.
2. THE OUTER LIMITS OF A BALANCING ACT
The first and most important casualty in a possible capitis diminutio of

rights in the exclusive economic zone would necessarily involve the freedom
of navigation. The attribution of powers in the zone set out in articles 56 and
58 of the LOS Convention involves a simple scheme, whereby, on the one
hand, fishing is granted to the coastal State whereas, on the other hand, the
bulk of the freedoms of the high seas, including the freedom of navigation,
remain guaranteed to the other States. The apparent simplicity of this system
is highly deceptive: The coastal State also enjoys a wide range of other juris-
dictional powers, including the obligation to protect and preserve the marine
environment in the exclusive economic zone. It is not inconceivable that,
under specific circumstances, the need to safeguard the marine environment,
a customary obligation binding upon every State on the planet 42 , would ne-
cessitate the suspension of navigation, certainly temporarily but also perma-
nently.
There is no doubt that the general thrust of articles 56 and 58 of the LOS
Convention remains attached to a balance of interests, which would involve
a general obligation to be aware of and take into consideration the interests
of the other party and a specific obligation to take any decision with such
third party interests included in the calculation. The Convention, however,
39
For a comment see Lea Brillmayer & Nathalie Klein, Land and Sea: Two sovereignty
regimes in search of a common denominator, NYUJILP 2001, pp. 703-768.
40
For a comprehensive overview see Emmanuel Roucounas, Engagements parallèles et
contradictoires, 206 RCADI 1987-VI, pp. 9-287.
41
For the best as yet exposition of the competing parameters of the dispute settlement sys-
tem see Nathalie Klein, Dispute settlement in the UN Convention on the Law of the Sea (Cam-
bridge 2005).
42
See, instead of many others, Birnie & Boyle, supra note 13, pp. 109-111.
envisages also at least two possibilities 43 of enhanced coastal State jurisdiction

where the balance between navigation and environmental protection could
tip towards the direction of the coastal State, thus giving credence to Joe
Verhoeven’s conclusion that
“Autrement dit, la zone est plus une mer territoriale assortie d’une liberté de
navigation qu’une haute mer accompagnée de droit « préférentiels » au profit
de l’État côtier.” 44 .
The first such instance legitimises what constituted a major point of con-
tention during the UNCLOS III negotiations: the 1970 Arctic Waters Pollu-
tion Prevention Act (AWPPA) 45 , which created a 100-mile maritime zone of
environmental – and ultimately territorial 46 – jurisdiction. Succumbing to the
43
A third possibility may arise in terms of transit passage through international straits, al-
though I think that the preference of the LOS Convention for uninterrupted passage could not
have been made more explicit than in article 44 LOSC: “There shall be no suspension of tran-
sit passage”; Maria Gavouneli, Obbligazioni alternative e contrastanti nel diritto internazion-
ale dell’ambiente, 16 RGA 2001, pp. 527-551, at pp. 544-549; Mary George, Transit passage
and pollution control in straits under the 1982 Law of the Sea Convention, 33 ODIL 2002, pp.
189-202. For a more general discussion see Hugo Caminos, The international regime of straits
in the 1982 UN Convention on the Law of the Sea, 205 RCADI 1987-V, pp. 13-245, at p. 123;
S.N. Nandan & D.H. Anderson, Straits used for international navigation: A commentary on
Part III of the UN Convention on the Law of the Sea 1982, BYBIL 1989, pp. 159-204; Tullio
Treves, Droit de passage en transit et protection de l’environnement dans le détroit de Boni-
facio, 7 Espaces et ressources maritimes 1993, pp. 175-184; Matteo Fornari, La nuova rego-
lamentazione del traffico marittimo nelle Bocche di Bonifacio e il ruolo della Organizzazione
Marittima Internazionale, 16 RGA 2001, pp. 319-341; Marco Gestri, Libertà di navigazione e
prevenzione dell’inquinamento: il caso dello stretto di Messina, RDI 1986, pp. 280-306; Fabio
Spadi, The bridge on the Strait of Messina: ‘Lowering’ the right of innocent passage?, 50
ICLQ 2001, pp. 411-419; Matteo Fornari, Conflicting interests in the Turkish straits: Is the
free passage of merchant ships still applicable?, 20 TIJMCL 2005, pp. 225-246.
44
Verhoeven, supra note 20, at p. 550. Note, however, the comments by Jon M. van Dyke,
The disappearing right to navigational freedom in the exclusive economic zone, 29 Marine
Policy 2005, pp. 107-121.
45
Arctic Waters Pollution Prevention Act (AWPPA), RSC, ch. A-12 (1993), first enacted
in 1970; 9 ILM 1970, pp. 543-552, text also available at <laws.justice.gc.ca>. For the typical
reaction at the time see Louis Henkin, Arctic anti-pollution: Does Canada make – or break –
international law?, 65 AJIL 1971, pp. 131-136; Donat Pharand, The law of the sea of the Arc-
tic, with special reference to Canada (Ottawa 1973); B. Johnson Theutenberg, The evolution
of the law of the sea with special regard to the polar areas. A study of resources and strategy,
in René-Jean Dupuy (éd.), Le règlement des différends sur les nouvelles ressources naturelles
(Colloque de l’Académie de droit international, Martinus Nijhoff, The Hague 1983) pp. 337-
424.
46
See also the comments by Bernard H Oxman, The territorial temptation: A siren song at
sea, 100 AJIL 2006, pp. 830-851, at p. 849; Donat Pharand, Canada’s Arctic waters in inter-
national law (Cambridge 1988); idem., The Arctic waters and the Northwest Passage: a final
revisit, 38 ODIL 2007, pp. 3-69; Dirk Zeller, From mare liberum to mare reservarum: Can-
pressure of unilateralism, article 234 of the LOS Convention authorises the

coastal State to adopt and enforce non-discriminatory laws and regulations
for the prevention and control of vessel-source pollution
“in ice-covered areas within the limits of the exclusive economic zone, where
particularly severe climatic conditions and the presence of ice covering such
areas for most of the year create obstructions or exceptional hazards to naviga-
tion, and pollution of the marine environment could cause major harm to or ir-
reversible disturbance of the ecological balance”.
Although the decision-maker is asked to “have due regard to navigation” 47 ,
there is a conspicuous absence of any further reference to the ‘competent in-
ternational organisation’ or the world community at large – with the possible
exception of the scientists who are asked to contribute “the best available
scientific evidence” 48 . The coastal State remains the sole judge of the need
for and the content of its regulatory action.
The second instance could not have been more different. It relates to the
creation of special areas in the exclusive economic zone under article 211 of
the LOS Convention, an apparent exception to the general preference of the
Convention for international solutions to universal problems, exemplified in
the obligation of the coastal State to adopt national anti-pollution rules and
regulations in both the territorial waters 49 and the exclusive economic zone
only to the extent that such rules and regulations
“conform[…] to and giv[e] effect to generally accepted international rules and
standards established through the competent international organisation…” 50 .
The conditions are clearly restrictive and apply only:
“Where the international rules and standards … are inadequate to meet special
circumstances and coastal States have reasonable grounds for believing that a
particular, clearly defined area of their respective exclusive economic zones is
an area where the adoption of special mandatory measures for the prevention
of pollution of vessels is required for recognised technical reasons in relation
to its oceanographical and ecological conditions, as well as its utilisation or the
protection of its resources and the particular character of its traffic...”51 .
The coastal States may have ‘reasonable grounds’ but, quite clearly, they
cannot act on their own: it is the organisation that
ada’s opportunity for global leadership in ocean resource governance, 19 Ocean YB 2005, pp.
1-18.
47
Article 234 LOSC.
48
Ibid.
49
Article 21 LOSC. See also supra, Part 1, Chapter 2, 2.
50
51
“shall determine whether the conditions in that area correspond to the require-
ments set out above” 52 .
The coastal State retains thus a right of initiative for what ultimately amounts
to the method of exercising its functions in its exclusive economic zone but
nothing more than that. Indeed, the designation of such a special area is fur-
ther subject to severe time limitations: once all scientific and technical evi-
dence is in place, the coastal State shall direct a communication, i.e. a re-
quest for action, to the Organisation 53 , namely the IMO; within 12 months
the Organisation shall decide on the creation of such an area 54 ; and any regu-
latory action undertaken under the new regime would become applicable to
foreign vessels 15 months after the initial submission of the communication 55 .
In contrast, the coastal State has prescriptive jurisdiction under two dis-
tinct bases. First, once the determination is made, the coastal State
“… may, for that area, adopt laws and regulations for the prevention, reduction
and control of pollution from vessels implementing such international rules
and standards or navigational practices as are made applicable, through the
organisation, for special areas.” 56 .
It has been suggested that the ‘special areas’ regime, to which this rather
complicated wording seems to refer, is in essence the special areas system
available under the 1973/1978 MARPOL Convention 57 , without any further
procedural requirements. That seems unlikely: the Law of the Sea Conven-
tion was never timid in referring directly to ‘international rules and regula-
tions’ if need be, without resorting to obscure references to pre-existing in-
struments – indeed, it has even been suggested that the twin formulation in-
cludes also IMO non-binding instruments 58 . Moreover, on a more substantive
52
Ibid.
53
54
Ibid.
55
Article 211 paragraph 6(c) LOSC in fine.
56
Article 211 paragraph 6(a) LOSC in fine (emphasis added).
57
The International Convention for the Prevention of Marine Pollution from Ships, 1973,
as modified by the Protocol of 1978 relating thereto entered into force on 2 October 1983; text
and latest information available at <www.imo.org>.
58
See, however, IMO doc. LEG 67/9 of 13 October 1992, paragraphs 125-126, as quoted
by Angelo Merialdi, Legal restraints on navigation in marine specially protected areas, in Tul-
lio Scovazzi (ed.), Marine specially protected areas (Kluwer Law International, 1999) pp. 29-
43 at p. 35, fn. 12; Alan Boyle, Marine pollution under the Law of the Sea Convention, 79
AJIL 1985, pp. 347-372, at pp. 355-357; W. van Reenen, Rules of reference in the new Con-
vention on the Law of the Sea, 12 NYBIL 1981, pp. 3-44; Daniel Vignes, La valeur juridique
de certaines règles, normes ou pratiques mentionnés au TNCO comme ‘généralement accep-
tées’, AFDI 1979, pp. 712-718; Budislav Vukas, Generally accepted international rules and
standards, in A.H.A. Soons (ed.), Implementation of the Law of the Sea Convention through
basis, the designation of special areas generates special discharge standards

for oil 59 , noxious liquid substances 60 , garbage 61 and sulphur oxide emissions 62
in designated areas of the high seas, exclusive economic zones or even terri-
torial seas whereas the LOSC special areas may be established in any
‘clearly defined area’ within an EEZ in need of protection for whatever source
of pollution 63 .
In addition, second, the coastal State also has the competence to comple-
ment the international protection system with “additional laws and regula-
tions” which
“ may relate to discharges or navigational practices but shall not require for-
eign vessels to observe design, construction, manning or equipment standards
other than generally accepted international rules and standards” 64 .
This national prerogative is clearly in line with the general competences of
the coastal State in the exclusive economic zone to take action in matters
pertaining to the protection and preservation of the marine environment 65 .
Indeed, the direct exclusion of CDEM standards is yet another limitation to
the powers of the coastal State. Nevertheless, the determination of what con-
international institutions (Law of the Sea Institute, Honolulu 1990) pp. 405-421; Erik Jaap
Molenaar, Coastal state jurisdiction over vessel-source pollution (Martinus Nijhoff, The
Hague 1998) chapter 10.
59
MARPOL 73/78, Annex I, Prevention of pollution by oil, available at <www.imo.org>.
Such areas include the Mediterranean Sea, the Baltic Sea and the Black Sea (designated in
1973 and into force since 1983); the Antarctic area (designated in 1990 and into force since
1992); and the North-West European waters (designated in 1997 and into force since 1999).
Although the Red Sea (1973/1983), the Gulf area (1973/1983), the Gulf of Aden (1987/1989)
and recently the Oman area (2004/2007) have been so designated the relevant requirements
have not as yet taken effect due to the lack of technical facilities. The special area of the
Southern South African waters (2006) is expected to come into force in early 2008.
60
MARPOL 73/78, Annex II, Noxious liquid substances, available at <www.imo.org>.
Such areas include the Baltic Sea (1973/1987) and the Antarctic area (1992/1994) whereas the
Black Sea (1973/1987) has not as yet taken effect due to the lack of technical facilities.
61
MARPOL 73/78, Annex V, Garbage, available at <www.imo.org>. Such areas include
the Baltic Sea (1973/1988), the North Sea (1989/1991) and the Antarctic area below 60o
South (1990/1992) whereas the systems available in the Mediterranean Sea (1973/1988), the
Black Sea (1973/1988), the Red Sea (1973/1988), the Gulf area (1973/1988) and the wider
Caribbean region, including the Gulf of Mexico and the Caribbean Sea (1991/1993) have not
as yet taken effect due to the lack of technical facilities.
62
MARPOL 73/78, Annex VI: Prevention of air pollution by ships (SOx Emission Control
Areas), available at <www.imo.org>. Such areas are already or soon to be operational in the
Baltic Sea (1997/2005) and the North Sea (2005/2006).
63
Thus also Merialdi, supra note 58, at p. 34; Kwiatkowska, supra note 9, at p. 174.
64
65
See, however, the discussion on the extent of the criminal jurisdiction of the coastal State
supra, Part I, Chapter 2, 4.
stitutes an (allowed) additional rule as opposed to a (prohibited) CDEM

standard is always a subject of controversy. In a typical example, the State of
Washington attempted in the 1990s – not without immediate reaction 66 – to
introduce environmental regulations 67 requesting vessels going through the
Strait of Juan de Fuca and the Olympic Coast National Marine Sanctuary to
file oil spill prevention plans with the coastal authorities, which would nec-
essarily include reporting on the position of the ship every 15 minutes
through the installation of GPS receivers onboard and a comprehensive sys-
tem of personnel training involving a restriction in the hours of work and
mandatory drug and alcohol testing for the crew.
However, this ‘mixed regulatory system’ remains far too complicated for
the users of the sea – indeed, there has not been so far a single special area
created solely under the procedure stipulated in article 211 paragraph 6 of
the Law of the Sea Convention. Instead, the relevant provision serves as an
additional legal basis for the designation by the IMO of ‘Particularly Sensi-
tive Sea Areas’ (PSSA), a beast unknown in this form to the Convention and,
in fact, created by the Organisation without any particular treaty basis 68 as a
flexible, precautionary response to the increasingly urgent need for environ-
mental protection in certain parts of the seas, in application of both the gen-
eral obligation of States to protect and preserve the marine environment un-
der articles 192 and 194 of the LOS Convention 69 and their more specific
duty, ‘acting through the competent international organisation’ to establish
rules and standards to prevent pollution from vessels under article 211 para-
graph 1 of the Convention. Defined in the 2005 PSSA Guidelines adopted by
66
International Association of Independent Tanker Owners (Intertanko) v. Lowry, 497
F.Supp. 1484 (W.D. Washington 1996) aff’d in part, rev’d in part; International Association
of Independent Tanker Owners (Intertanko) v. Locke, 148 F.3d 1053 (9th Circ. 1998). For a
general overview see Barry Hart Dubner, On the interplay of international law of the sea and
the prevention of marine pollution – How far can a State proceed in protecting itself from
conflicting norms in international law, 11 Georgetown IELR 1998, pp. 137-161.
67
Washington Administrative Code, §§317-21-100 to 321-21-540 (1995), available at
<apps.leg.wa.gov/wac>. The US and Canada concluded an Agreement for a Cooperative Ves-
sel Traffic Management System for the Juan de Fuca region on 19 December 1979, 32 UST
380, available at <www.gpoaccess.gov>.
68
Thus also Louise de la Fayette, The Marine Environment Protection Committee: The
conjunction of the law of the sea and international environmental law, 16 TIJMCL 2001, pp.
155-238, at p. 186. Antecedents of the concept may be traced to Resolution 9 of the 1978 In-
ternational Convention on Tanker Safety and Pollution Prevention or even to a 1966 proposal
by France and the then Soviet Union to designate Areas to be Avoided (ATBA) under the
SOLAS Convention; for a general history see Gerard Peet, Particularly Sensitive Sea Areas: A
documented history, 9 TIJMCL 1994, pp. 469-507.
69
See also UN DOALOS, Comments in connection with issues raised in document LEG
87/16/1, IMO Doc. LEG 87/17, Annex 7, p. 1, available at <www.imo.org>.
the IMO, replacing the previous 1991 Guidelines after a lengthy and com-
prehensive negotiation 70 , as
“an area that needs special protection though action by IMO because of its sig-
nificance for recognised ecological, socio-economic or scientific attributes,
where such attributes may be vulnerable to damage by international shipping
activities.” 71 ,
a PSSA triggers in effect a cluster of protective provisions under several
IMO instruments. The designation 72 of a PSSA becomes thus a matter of sig-
nificant interest, not only to the coastal State – although nothing prevents a
PSSA to extend beyond the maritime jurisdictional zones into the high seas –
but also to the world community at large, in view of the crucial importance
for navigation in the areas concerned. The ever expanding, especially in re-
cent years, present list 73 includes the Great Barrier Reef area in Australia
(1990) 74 ; the Sabana-Camagüey archipelago in Cuba (1997) 75 ; the Malpelo
70
IMO Resolution A.982 (24), Revised Guidelines for the identification and designation of
Particularly Sensitive Sea Areas, adopted on 1 December 2005, replacing IMO Resolution
A.927 (22), Guidelines for the designation of Special Areas under MARPOL 73/78 and
Guidelines for the identification and designation of Particularly Sensitive Sea Areas, adopted
on 29 November 2001; both available at <www.imo.org>. For an earlier account of the debate
see Kristina Gjerde & David Freestone, Particularly Sensitive Sea Areas – An important envi-
ronmental concept at a turning point, 9 TIJMCL 1994, pp. 431-468; for a thorough presenta-
tion of the negotiation see de la Fayette, supra note 68, at pp. 185-194; Giuletta Rak, Le
nuove linee guida dell’Organizzazione Marittima Internazionale (IMO) per la designazione di
aree speciali e di aree marine particolarmente sensibili, 17 RGA 2002, pp. 591-612.
71
Ibid., paragraph 1.1.
72
Note also the shift from the term ‘identification’ under the 1991 Guidelines to a more
binding-looking ‘designation’ in the 2005 Guidelines; Fabio Spadi, Navigation of marine pro-
tected areas: National and international law, 31 ODIL 2000, pp. 285-302; Kristina Gjerde,
Protecting Particularly Sensitive Sea Areas from shipping: A review of IMO’s new PSSA
Guidelines, in H. Thiel & J.A. Koslow (eds.), Managing risks to biodiversity and the envi-
ronment on the high sea, including tools such as Marine Protected Areas – Scientific re-
quirements and legal aspects (BfN-Skripten, Bonn/Bad Godesberg 2001) pp. 123-131, also
available at <www.gruenesoval.de/fileadmin/MDB/documents/proceed1.pdf>.
73
See also a proposal for a PSSA in the Adriatic Sea by Davor Vidas, Protecting the Euro-
pean Seas as Particularly Sensitive Sea Areas: The need for regional cooperation in the Adri-
atic Sea, in Katarina Ott (ed.), Croatian accession to the European Union: The challenges of
participation (Zagreb 2006) pp. 347-380.
74
Designated as an attachment to IMO Resolution A.720 (17), Guidelines for the Designa-
tion of Special Areas and the Identification of Particularly Sensitive Sea Areas, 1990, avail-
able at <www.imo.org>; see in general Peter Ottesen, Stephen Sparkes & Colin Trinder,
Shipping treats and protection of the Great Barrier Reef marine park – The role of the Particu-
larly Sensitive Sea Area concept, 9 TIJMCL 1994, pp. 507-522.
75
MERC 74/40, Identification of the Archipelago of Sabana-Camagüey as a Particularly
Sensitive Sea Area, 1997, available at <www.imo.org>. See also K.M. Gjerde & J.S.H. Pullen,
Cuba’s Sabana-Camargüey Archipelago: The second internationally recognised particularly
sensitive sea area, 13 TIJMCL 1998, pp. 246-262; Kristina Gjerde, IMO approves protective
island, off the coast of Colombia (2002) 76 ; the sea area around the Florida
keys in the US (2002) 77 ; the Wadden Sea, upon a joint application by Den-
mark, Germany and the Netherlands (2002) 78 ; the Paracas National Reserve
in Peru (2003) 79 ; the hotly debated Western European waters (2004) 80 ; the
Torres Strait as an extension to the existing area of the Great Barrier Reef,
proposed jointly by Australia and Papua New Guinea (2005) 81 ; the Canary
islands in Spain (2005) 82 ; the Galapagos archipelago in Ecuador (2005) 83 ;
and, last but not least, the Baltic Sea area, jointly proposed by Denmark, Es-
tonia, Finland, Germany, Latvia, Lithuania, Poland and Sweden (2005) 84 –
with the conspicuous absence of the Russian waters.
The identification and designation of PSSA involves a two-stage proce-
dure for the assessment of the vulnerability of the area proposed and the risk
it faces by international shipping 85 . During the first step in the process, the
coastal State must provide evidence
measures for Cuba’s Particularly Sensitive Sea Area in the Sabana-Camagüey Archipelago, 14
TIJMCL 1999, pp. 415-422.
76
MERC 97/47, Identification of the sea area around Malpelo Island as a Particularly
Sensitive Sea Area, 2002, available at <www.imo.org>.
77
MERC 98/47, Identification of the sea area around the Florida Keys as a Particularly
Sensitive Sea Area, 2002, available at <www.imo.org>.
78
MERC 101/48, Identification of the Wadden Sea as a Particularly Sensitive Sea Area,
2002, available at <www.imo.org>.
79
MERC 106/49, Designation of the Paracas National Reserve as a Particularly Sensitive
Sea Area, 2003, available at <www.imo.org>.
80
MERC 121/52, Designation of the Western European waters as a Particularly Sensitive
Sea Area, 15 October 2004, available at <www.imo.org>. See also Markus Detjen, The West-
ern European PSSA – Testing a unique international concept to protect imperilled marine
ecosystems, 30 Marine Policy 2006, pp. 442-453; Julian Roberts, Martin Tsamenyi, Tim
Workman & Lindy Johnson, The Western European PSSA proposal: A ‘Politically Sensitive
Sea Area’, 29 Marine Policy 2005, pp. 431-440.
81
Report of the Marine Environment Protection Committee at its 53rd session, 18-22 July
2005, MERC 53/24, paragraph 8.33.2., available at <www.imo.org>. For a whiff of the legal
issues involved see J. Roberts, Compulsory pilotage in international straits: The Torres Strait
PSSA proposal, 37 ODIL 2006, pp. 93-112.
82
MERC 124/53, Designation of the Canary islands as a Particularly Sensitive Sea Area,
2005, available at <www.imo.org>.
83
MERC 135/53, Designation of the Galapagos Archipelago as a Particularly Sensitive
Sea Area, 2005, available at <www.imo.org>.
84
MERC 136/53, Designation of the Baltic Sea as a Particularly Sensitive Sea Area, 2005,
available at <www.imo.org>. See also Ylva Uggla, Environmental protection and the freedom
of the high seas: The Baltic Sea as a PSSA from a Swedish perspective, 31 Marine Policy
2007, pp. 251-257.
85
Detjen, supra note 80, at pp. 448-450; Bénédicte Sage, Precautionary coastal States’ ju-
risdiction, 37 ODIL 2006, pp. 359-387, at pp. 374-376.
“to establish that at least one of the criteria exists throughout the entire pro-
posed area, though the same criterion need not to be present throughout the en-
tire area” 86 .
This is a significant tightening of the procedure in comparison to the ear-
lier edition of the Guidelines, which considered the existence of just one
such criterion anywhere in the area sufficient; indeed, as pointed out by the
UN DOALOS, that was one of the significant differences with the special
areas under the Law of the Sea Convention, which necessitates the presence
of all of them 87 . The second step involves an assessment of the risk imposed
by international shipping activities for that part of the seas, especially in
view of vessel traffic characteristics in the area and the natural factors there 88 ;
the final enclosure, however, may also include a buffer zone,
“an area contiguous to the site-specific feature (core area) for which specific
protection from shipping is sought” 89 .
The final designation of a PSSA is dependant upon the adoption of Asso-
ciated Protective Measures (APM), which include everything with “an iden-
tified legal basis” 90 . This is a new requirement, introduced in the 2005
Guidelines, which many – and certainly the environmental organisations –
felt that it restricted the range of responses available to the Organisation,
thus curtailing any proactive tendencies for a more effective environmental
protection 91 . There is no doubt that this formulation has taken the PSSA phe-
nomenon away from the rather dilettante approach of administrative prac-
tices in the IMO and moved it squarely within the evolutionary implementa-
tion of the Law of the Sea Convention. As a result, the designation of new
PSSAs has acquired a solid legal basis, investing them with the binding
power, as an expression of the common will of the coastal States concerned;
and moreover, it has streamlined developments in the marine environmental
86
Revised Guidelines, supra note 70, paragraph 4.4. There are in all 11 ecological criteria,
including uniqueness or rarity, critical habitat, dependency, representativeness, diversity, pro-
ductivity, spawning and breeding grounds, naturalness, integrity, fragility and biogeographic
importance; ibid., paragraphs 4.4.1.-4.4.11; three social, cultural and economic criteria; ibid.,
paragraphs 4.4.12-4.4.14; and three scientific and educational criteria; ibid., paragraphs 4.4.15-
4.4.17.
87
De la Fayette, supra note 68, at p. 189.
88
Revised Guidelines, supra note 70, paragraphs 5.1.-5.2; see also Sage, supra note 85, at
pp. 374-375.
89
Ibid., paragraph 6.3.; Detjen, supra note 80, at pp. 448-449.
90
Ibid., paragraph 6.1.
91
Thus Comments submitted by the WWF on MERC 52/8 on the Proposed amendments to
Assembly Resolution A.927(22) to strengthen and clarify the Guidelines for the identification
and designation of Particularly Sensitive Sea Areas (PSSAs), MERC 52/8/4, 18 August 2004,
available at <www.imo.org>.
protection front within the context and under the authority of the Law of the
Sea Convention.
Acting in this spirit, the 2005 Guidelines further specify in paragraph
7.4.2.1.(a) three distinct categories of APMs:
“ (i) any measure that is already available in an existing instrument;
(ii) any measure that does not yet exist but that should be made available as
a generally applicable measure and that falls within the competence of IMO;
(iii) any measure proposed for adoption in the territorial sea as provided for
in the Law of the Sea Convention” 92 ,
provided that any such measure should be specifically tailored to meet the
needs of the area at risk 93 . The suitability criterion would offer significant
guidance in choosing among the wide variety of measures already available
or soon to be adopted: they would include discharge and anchoring restric-
tions under the SOLAS 94 and the COLREG 95 conventions, with or without
the parallel designation of MARPOL ‘special areas’; traffic separation
schemes, compulsory pilotage and generally Vessel Traffic Services (VTS) 96 ;
ship reporting systems and ship routing measures 97 , including mandatory
ship routeing measures for purely environmental purposes 98 .
The last category provides the only direct reference in the 2005 PSSA
Guidelines to the Law of the Sea Convention. The broad ‘any measure’ lan-
guage is significantly tempered by a footnote, indicating that
“[t]his provision does not derogate from the rights and duties of coastal States
in the territorial sea as provided in the Law of the Sea Convention”.
92
Ibid.
93
Ibid., paragraph 7.4.2.1.(b).
94
Convention for the Safety of Life at Sea (SOLAS), adopted on 7 November 1974, 1184
UNTS 2, text also available at <www.imo.org>.
95
Convention on the International Regulations for Preventing Collisions at Sea (COLREG),
adopted on 20 October 1972, text available at <www.imo.org>.
96
See also IMO Resolution A.857(20), Guidelines for Vessel Traffic Services, adopted on
27 November 1997; see also Sage, supra note 85, at pp. 381-382.
97
Resolution A.572(14), General provisions on Ships Routeing, 2003, available at
<www.imo.org>. They include traffic separation schemes, traffic lanes, separation zones or
lines, roundabouts, inshore traffic zones, recommended routes, deep-water routes, precaution-
ary areas, areas to be avoided, and no anchoring areas; for definitions see Sage, supra note 85,
at pp. 379-380; Julian Roberts, Protecting sensitive marine environments: The role and appli-
cation of ships’ routeing measures, 20 TIJMCL 2005, pp. 135-159.
98
SOLAS Regulation V/8 and Resolution A.572 (14), both as amended by Resolution
MSC.46(65) of 16 May 1995; available at <www.imo.org>; see also Glenn Plant, The rela-
tionship between international navigational rights and environmental protection: A legal
analysis of mandatory ship traffic systems, in Henrik Ringbom (ed.), Competing norms in the
law of marine environmental protection (Martinus Nijhoff 1997) at pp. 27-28.
If the purport of this provision is to reiterate the coastal States’ obligation to

respect the innocent passage of foreign ships in the territorial sea and abstain
from regulating matters pertaining to the construction, design, equipment
and manning of foreign vessels (CDEM standards), then this a fine example
of bad legislative drafting. Indeed, it has been suggested that the rather
opaque language employed allows for the adoption of reasonable CDEM
standards applicable on foreign vessels provided that they are proportionate,
do not hamper innocent passage and are previously approved by the IMO 99 .
On the face of the law, however, it is hard to see the legal basis of this evolu-
tionary reading of the relevant provisions of the Law of the Sea Convention,
which certainly puts at risk the delicate balance between navigation and en-
vironmental concerns established therein.
Indeed, the IMO Marine Environment Protection Committee (MERC) re-
acted forcefully when the proponents of what eventually became the West-
ern European PPSA suggested, at the wake of the Prestige incident in No-
vember 2002 100 , the total ban of single hull tankers over 600 dwt carrying
heavy grades of oil 101 ; it was clearly understood that the proposal was far
away from the regulatory framework of the Law of the Sea Convention and
was subsequent withdrawn. It was replaced by a reporting obligation with a
48 hours notice period 102 , an ‘existing obligation’ as SOLAS Regulation 8
clearly provides in Chapter V (Navigation) for notification requirements as a
method to enable the coastal State to guarantee that effective measures ad-
dressing any environmental pollution incident are actually in place.
Important as they may be, PSSAs are at the end of the day a category of
marine protected areas 103 , enclosures of the seas in which certain activities
may be excluded or limited to a minimum in order to protect the marine en-
vironment without any territorial or other jurisdictional connotation 104 – al-
99
Thus Detjen, supra note 80, at p. 449; Gjerde, supra note 72, in fine.
100
For an overview see The Prestige accident, <www.europa.eu.int/transport/maritime/safety>;
José Juste Ruiz, El accidente del Prestige y el derecho internacional: de la prevención fallida a la
reparación insuficiente, 35 REDI 2003, pp. 15-42; Jorge Pueyo Losa, Isabel Lirola Delgado &
Julio Jorge Urbina, En torno a la revisión del régimen jurídico internacional de seguridad ma-
rítima y protección del medio marino a la luz del accidente del Prestige, ibid., pp. 43-77.
101
MERC 49/8/1, Designation of a Western European Particularly Sensitive Area, 11
April 2003, Annex 1, at p. 2, jointly submitted by Belgium, France, Ireland, Portugal, Spain
and the United Kingdom; available at <www.ilo.org>.
102
Report of the Marine Environment Protection Committee at its 49th session, MERC
49/22, 8 August 2003, at p. 50.
103
Tundi Agardy, Marine protected areas and ocean protection (Austin, Texas 1997).
104
See, however, the discussion by Nele Matz, Protected areas in international nature con-
servation law: Can States obtain compensation for their establishment?, 63 ZaöRV 2003, pp.
693-716.
though one could well read such a tendency in the “hereby appropriated”
language used in the 2006 proclamation of a 50-mile North-Western Ha-
waian islands marine national monument within the US exclusive economic
zone 105 . Global conventions provide for the designation of such protected ar-
eas; examples include the 1971 Ramsar Convention on wetlands of interna-
tional importance, especially as waterfowl habitat 106 ; the 1972 Convention
concerning the protection of the world cultural and natural heritage 107 ; or the
1991 Madrid Protocol on environmental protection to the 1959 Antarctic
Treaty 108 . The more important maritime protected areas may be found in the
numerous regional environmental conventions 109 : Among them, the 1992
OSPAR Convention for the protection of the marine environment of the
North-East Atlantic 110 ; the 1995 Barcelona Protocol concerning Specially
105
Presidential Proclamation no. 8031, Establishment of the Northwestern Hawaiian Is-
lands Marine National Monument, 26 June 2006, 71 Federal Registry 36441 [2006]. Note,
however, that “The Secretary of State, …, shall seek the cooperation of other governments
and international organizations in furtherance of the purposes of this proclamation and consis-
tent with applicable regional and multilateral arrangements for the protection and manage-
ment of special marine areas. Furthermore, this proclamation shall be applied in accordance
with international law. No restrictions shall apply to or be enforced against a person who is
not a citizen, national, or resident alien of the United States (including foreign flag vessels)
unless in accordance with international law”; ibid. (my emphasis); Peter H. Sand, ‘Green’
enclosure of ocean space – déjà vu?, 53 Marine Pollution Bulletin 2007 [on file with the au-
thor]. The area seems to have already attracted its share of controversy: Jon M. van Dyke, J.
Morgan & J. Gurish, The exclusive economic zone of the Northwestern Hawaiian islands:
When do uninhabited islands generate an EEZ?, 25 San Diego LR 1988, pp. 425-494.
106
Done on 2 February 1971 and entered into force on 21 December 1975; 996 UNTS 245.
107
Done in Paris on 21 November 1972 and entered into force on 17 December 1975, 11
ILM 1972, pp. 1358-1366.
108
Done in Madrid on 4 October 1991 and entered into force on 14 January 1998, 30 ILM
1991, pp. 1461-1486; K. Bastmeijer, The Antarctic Environmental Protocol and its domestic
legal implementation (Kluwer Law International, Dordrecht 2003).
109
For an overview see, instead of many others, Tullio Treves, Regional approaches to the
protection of the marine environment, in Myron H. Nordquist, John Norton Moore & Said
Mahmoudi (eds.), The Stockholm Declaration and law of the marine environment (Kluwer
Law International 2003) pp. 137-154; David M. Dzidzornu, Marine environment protection
under regional conventions. Limits to the contribution of procedural norms, 33 ODIL 2002,
pp. 263-316.
110
Done in Paris on 22 September 1992 and entered into force on 25 March 1998, 21 ILM
1993, pp. 1069-1100; text and general information also available at <www.ospar.org>. For an
overview see Ellen Hey, Ton IJlstra & André Nollkaemper, The 1992 Paris Convention for
the protection of the Marine Environment of the North-East Atlantic: A critical analysis, 8 TIJMCL
1993, pp. 1-49; José Juste, La Convention pour la protection du milieu marin de l’Atlantique nord-
est, 97 RGDIP 1993, pp. 365-393; Juliane Hilf, The Convention for the protection of the marine
environment of the North-east Atlantic – New approaches to an old problem? 55 ZaöRV 1995,
pp. 580-603; Louise de la Fayette, The OSPAR Convention comes into force: Continuity and
progress, 14 TIJMCL 1999, pp. 247-279; Rainer Lagoni, Regional protection in the Northeast
Atlantic, in Nordquist, Moore & Mahmoudi (eds.), supra, pp. 183-203.
Protected Areas and biological diversity in the Mediterranean111 , replacing the

1982 Geneva Protocol concerning Mediterranean Specially Protected Areas 112 ;
or the 1990 Kingston Protocol concerning specially protected areas and
wildlife 113 to the 1983 Cartagena de Indias Convention for the protection and
development of the marine environment of the wider Caribbean region 114 .
The common problem in all these instruments relates to the impact of re-
strictions on navigation, often in the high seas, upon third States 115 , not party
to the conventions; States parties being naturally bound by their contractual
obligations. It has been suggested that protected areas, created on the basis
of such pacta tertiis, create nonetheless an erga omnes effect, reminiscent of
the objective regimes discussed by the PCIJ in the case of the Free zones of
Upper Savoy and the district of Gex 116 . A more contemporary legal basis may
be sought in the customary obligation of all States to protect and preserve the
marine environment: measures taken with a view to guarantee environmental
protection may well be binding upon third States, not necessarily creating an
obligation to comply with the specific provisions of an agreement to which
they have not participated but rather a duty of non-interference with ar-
rangements agreed by certain members of the international community on
111
In force since 12 December 1999; for the text and general information see <www.unepmap.
org>. For a overview see Tullio Scovazzi, Regional cooperation in the field of the environment,
in Tullio Scovazzi (ed.), Marine specially protected areas (Kluwer Law International 1999)
pp. 81-99, at pp. 86-88; Maria Gavouneli, New forms of cooperation in the Mediterranean
system, in Nordquist, Moore & Mahmoudi (eds.), supra note 109, pp. 223-236, at pp. 225-227.
112
It was adopted in Geneva on 3 April 1982 and entered into force on 23 March 1986; text
available at <ww.unepmap.org>. For a comparative overview see Ange-Laurent Bindi, La
création et la gestion des aires marines spécialement protégées (AMSP), 5 ADM 2000, pp.
165-175; Habib Slim, Les aires spécialement protégées en Méditerranée, 6 Revue de
l’INDEMER 2001, pp. 121-139; Carlos Francisco Fernández Beistegui, Las zonas marinas es-
pecialmente sensibles (ZMES): las incertidumbres de la medidas previstas para su protección,
21 Anuário de derecho marítimo 2004, pp. 89-119.
113
Done on 18 January 1990, it entered into force on 18 June 2000, text available at
<www.cep.unep.org>; Alessandra Vanzella-Khouri, Implementation of the Protocol concern-
ing specially protected areas and wildlife (SPAW) in the wider Caribbean region, 30 U Miami
IALR 1998, pp. 53-83; Charlotte de Fontaubert & Tundi Agardy, Critical analysis of the
SPAW Protocol. The dilemma of regional cooperation, ibid., pp. 85-98.
114
Done on 24 March 1983, it entered into force on 30 March 1986, 22 ILM 1983, pp. 221-
245. For an overview of the Caribbean system see Winston Anderson, The law of Caribbean
marine pollution (Kluwer Law International, 1997); Benedict Sheehy, International marine
environment law. A case-study in the Wider Caribbean Region, 16 Georgetown IELR 2004,
pp. 441-472.
115
For a thorough airing of the issues see Erik Franckx, Pacta tertiis and the Agreement for
the implementation of the straddling and highly migratory fish stocks provisions of the UN
Convention on the Law of the Sea, 8 Tulane JICL 2000, pp. 49-81.
116
France v. Switzerland, 1932, PCIJ, ser. A/B, no. 46 at p. 96, available at <www.icj-
cij.org>; for a more detailed discussion see Gavouneli, supra note 43, at pp. 536-539.
behalf of the international community as a whole 117 . It is quite clear that the
affirmation of such a duty necessarily involves a degree of acquiescence by
the third State, which is not always evident and almost never to be presumed.
3. THE ATTRACTION OF UNILATERALISM
The saga of the available mechanisms for balancing the different uses of
the seas proves, beyond any doubt, the delicate nature of the exercise but
also the powerful urge of the coastal State to break the procedural constraints
the world community has placed upon its actions and take immediate action.
There is never a better chance for such flares of unilateralism that when a
maritime incident highlights the limitations of concerted multilateral action
and the regulatory limits of the Law of the Sea Convention. This was the
case of the Torrey Cannon, which created the 1969 International Convention
relating to intervention on the high seas in cases of oil pollution from ships
and the 1973 Protocol relating to intervention on the high seas in cases of
marine pollution by substances other than oil 118 ; the case of Exxon Valdez,
which resulted in the US Oil Pollution Act 1990 119 ; the case of Erika, which
shaped the maritime safety policy of the European Community 120 ; and the
117
For a general discussion see Malgosia Fitzmaurice, Modifications to the principles of
consent in relation to certain treaty obligations, 2 ARIEL 1997, pp. 275-317 at p. 299; Kristina
M. Gjerde, High seas marine protected areas, 16 TIJMCL 2001, pp. 515-528; Tullio Scovazzi,
Marine protected areas on the high seas. Some legal and policy considerations, 19 TIJMCL
2004, pp. 1-17.
118
Adopted on 29 November 1969, it entered into force on 6 May 1975; initially amended
by the 1973 Protocol thereto, which entered into force on 30 March 1983 and subsequent
amendments in 1991, 1996 and 2002 revising the list of substances; texts available at
<www.imo.org>. The IMO pollution prevention system was complemented with the adoption
of the 1990 International Convention on Oil Pollution Preparedness, Response and Coopera-
tion (OPRC), adopted on 30 November 1990 and entered into force on 13 May 1995, as sup-
plemented by the 2000 Protocol on Preparedness, Response and Cooperation to Pollution In-
cidents by Hazardous and Noxious Substances, adopted on 15 May 2000, which will enter
into force on 14 June 2007; ibid.
119
Oil Pollution Act (OPA) of 1990, Pub.L. No. 101-380, 104 Stat. 484.
120
See Communication from the Commission to the European Parliament and the Council
on the safety of the seaborne oil trading [Erika I], COM (2000) 142 final, 21 March 2000;
Communication from the Commission to the European Parliament and the Council on a sec-
ond set of Community measures on maritime safety following the sinking of the oil tanker
Erika [Erika II], COM (2000) 802 final, 6 December 2000; Communication from the Commis-
sion on a third package of legislative measures on maritime safety in the European Union
[Erika III], COM (2005) 585 final, 23 November 2005; complete information available at
<ec.europa.eu/transport/maritime/ safety/2000_erika_en.htm>; Françoise Odier, Une nouvelle
étape dans le développement de la sécurité maritime : les leçons de l’Erika, 4 ADM 1999, pp.
case of the Prestige, which has put the tension between freedom of naviga-
tion and environmental protection squarely on the front page of world news,
generating a torrent of international regulation 121 .
The immediate reaction of the coastal States concerned remained true to
(unilateral) form. Meeting in Malaga in November 2002, just a week after
the Prestige disaster, the competent ministers from France and Spain agreed
to a new interpretation of their rights and duties in their respective exclusive
economic zones:
“ L’Espagne et la France sont déterminées à limiter la présence dans leurs
zones économiques exclusives respectives des navires de plus de quinze ans
d’âge, à simple coque, transportant des fiouls lourds et des goudrons et présen-
tant des risques pour la protection de l’environnement marin.
Pour ce faire, l’Espagne et la France mettent en place une obligation de si-
gnalement détaillé à l’entrée de leurs zones économiques exclusives afin de
permettre, en cas de doutes, un contrôle approfondi des navires à la mer dont le
résultat pourra aboutir à une injonction à quitter la zone” 122 .
The declaration was immediately joined by Portugal whereas Belgium and
Germany reacted vehemently to the possibility of unilateral action spreading
in European waters – given the tone of political argumentation at the time 123 .
There is no question that the coastal State has jurisdiction in the EEZ for
matters pertaining to the protection and preservation of the marine environ-
ment. However, the text of the Law of the Sea Convention is explicit as to
the extent of the powers of the coastal State when faced with the risk of a
179-189; Yves van der Meensbrugghe, Sécurité maritime et protection de l’environnement

marin en l’an 2000 : Des réactions de la Communauté européenne à l’affaire de l’Erika et de
quibusdam aliis…, 5 ADM 2000, pp. 177-201; Henrik Ringbom, The Erika accident and its
effects on EU maritime regulation, in Myron H. Nordquist & John Norton Moore (eds.), Cur-
rent marine environmental issues and the International Tribunal for the Law of the Sea (Mar-
tinus Nijhoff, The Hague 2001) pp. 265-285.
121
For the first reactions see Communication on improving safety at sea in response to the
Prestige accident, COM (2002) 681, 3 December 2002; Communication from the Commission
on action to deal with the effects of the Prestige disaster, COM (2003) 105 final, 5 March
2003; both available at <www.europa.eu>.
122
Spain/France summit meeting, 26 November 2003, text available at <www.elysee.fr/
elysee/français/actualites/deplacements_a_l_etranger/2002/novembre/sommet_franco_espa
gnol_a_malaga>. See also Laurent Lucchini, Les contradictions potentielles entre certaines
mesures de protection de l’environnement et la liberté de navigation. Rapport général, in Ra-
fael Casado Raigón (éd.), L’Europe et la mer. Pêche, navigation et environnement marin
(Bruylant/Éditions de l’Université de Bruxelles, Bruxelles 2005) pp. 205-214, at pp. 207-208;
Valentín Bou Franch, Freedom of navigation versus pollution by oil from vessels: The point of
view of coastal States, ibid., pp. 253-288, especially at pp. 265-273.
123
For a taste see M. Lehardy, Le naufrage du Ievoli Sun et les propositions Gayssot sur le
contrôle de la navigation, RGDIP 2001, pp. 178-184.
pollution incident. In application of its general jurisdictional rights in the ex-

clusive economic zone, the coastal State may
“require [a] vessel to give information regarding its identity and port of regis-
try, its last and its next port of call and other relevant information required to
establish whether a violation has occurred …” 124 .
provided that
“there are clear grounds for believing that a vessel navigating in the exclusive
economic zone … of a State has, in the exclusive economic zone, committed a
violation of applicable international rules and standards for the prevention, re-
duction and control of pollution from vessels or laws and regulations of that
State conforming and giving effect to such rules and standards…” 125 .
Moreover, if there are clear grounds for believing that the violation has in-
deed occurred
“resulting in a substantial discharge causing or threatening significant pollution
of the marine environment” 126 ,
then the coastal State may even proceed with a physical inspection of the
vessel and eventually institute proceedings, including detention of the vessel,
if there is
“a discharge causing major damage or threat of major damage to the coastline
or related interests of the coastal State or to any resources of its territorial sea
or exclusive economic zone” 127 .
All of the above being a very complicated way to say that, if a ship causes a
pollution incident within the EEZ of any given State, it becomes subject to
the enforcement jurisdiction of that State, it gets punished for it.
The precautionary approach in this rather standard rule is evidenced only
in the possible threat of ‘significant pollution’ or ‘major damage’, once a
violation has indeed occurred. There is no question that the requirement of a
previous breach before the enforcement system kicks into place would not
always guarantee the best environmental result. Indeed, under both articles
292 and 294 of the Law of the Sea Convention and customary international
law 128 the obligation to take appropriate measures certainly also covers pre-
124
125
Ibid.
126
Article 220 paragraph 5 LOSC (emphasis added).
127
Article 220 paragraph 6 LOSC (emphasis added).
128
See also article 3 of the 2001 ILC Articles on Prevention of transboundary harm from
hazardous activities: “The State of origin shall take all appropriate measures to prevent sig-
nificant transboundary harm or at any event to minimize the risk thereof.”; Official Records of
the General Assembly, Fifty-Sixth session, Supplement no. 10, A/56/10, text also available at
<www.un.org>.
ventive measures: The harm prevention obligation was indeed made explicit
by the ICJ in the Advisory Opinion on the Legality of the threat or use of nu-
clear weapons 129 .
However, reading into a very clear text an additional obligation of preven-
tion, in effect obliterating the inherent delicate balance of the system be-
tween freedom of navigation and protection of the marine environment,
would require a major subsequent development of a new rule of international
law 130 . Neither the well-documented travaux prépartoires of the Law of the
Sea Convention nor the status of international environmental law today al-
low for such a conclusion although it is generally understood – and repeat-
edly affirmed by international courts and tribunals 131 – that even older trea-
ties must be construed and applied in light of all the law in force between the
parties; a principle recently affirmed in the Iron Rhine case, where the 1839
Treaty of Separation between The Netherlands and Belgium was indeed in-
terpreted in view of the environmental responsibilities of the parties 132 . How-
ever, in the Gabcikovo-Nagymaros case, the Court, deciding on the facts of
the case, found no need to modify the contractual obligations of the parties
(undertaken in the early 1970s) in view of subsequently evolved environ-
mental principles 133 ; and that when international environmental law is per-
haps the only branch of international law with a birthday: June 1973! Envi-
ronmental concerns, including obligations of prevention, were certainly in-
corporated into the Law of the Sea Convention, which was generally under-
stood, even at the time, to be the first and certainly “the strongest comprehen-
sive environmental treaty now in existence or likely to emerge for quite
some time” 134 .
129
Advisory Opinion on the Legality of the threat or use of nuclear weapons, ICJ Reports
1996, paragraph 29: “The existence of the general obligation of States to ensure that activities
within their jurisdiction and control respect the environment of other States or of areas beyond
national control is now part of the corpus of international law relating to the environment”;
available at <www.icj-cij.org>.
130
For the mechanism of change see, instead of many others, Nancy Kontou, The termina-
tion and revision of treaties in the light of new customary international law (Oxford 1994).
131
See, among others, the Advisory Opinion on Legal consequences for States of the con-
tinued presence of South Africa in Namibia (South West Africa), notwithstanding Security
Council Resolution 276 (1970), ICJ Reports 1971; Aegean Sea continental shelf, Greece v.
Turkey, ICJ Reports 1978.
132
Permanent Court of Arbitration, Arbitration regarding the Iron Rhine (‘IJzeren Rijn’)
railway, Belgium v. The Netherlands, award of 24 May 2005, paragraphs 220-223; available
at <www.pca-cpa.org>. See also supra, Part I, Chapter 2, 4, notes 154-160 and text therein.
133
Case concerning the Gabcikovo-Nagymaros project, Hungary v. Slovakia, ICJ Reports
1997, paragraph 140; available at <www.icj-cij.org>.
134
John R. Stevenson & Bernard H. Oxman, The future of the UN Convention on the Law
of the Sea, 88 AJIL 1994, pp. 488-499, at p. 496.
The coastal State can, therefore, request information, conduct a physical

inspection, even arrest a polluting ship, once it has caused an incident in
breach of its (flag State) obligations under international law. It cannot do any
of the aforementioned and it cannot order it to move away from the exclu-
sive economic zone waters, thus curtailing its freedom of navigation therein,
upon suspicion that a polluting incident is possible or even impeding. The
Malaga agreement on expulsion from the EEZ is outside the legal framework
of the Law of the Sea Convention 135 – and it was understood as such by the
parties, which soon moved to address the situation in other fora with the
proposal for a Western European waters PSSA 136 and the adoption of new
CDEM standards under MARPOL to exclude the presence of single-hull old
ships from the European waters 137 : In a rather complicated system, with
many exceptions, all transport of heavy-grade oil by single-hull tankers will
cease immediately 138 whereas 15-year old single-hull tankers carrying lighter
types of oil are subject to a vigorous Condition Assessment Scheme (CAS) 139
before they are all phased out by 2015 140 . The system mirrors the even more
rigorous timelines, i.e. a total phase-out of single-hull vessels by 2010, estab-
lished by Regulation (EC) 1726/2003 of the European Parliament and of the
Council of 22 July 2003 amending Regulation (EC) 417/2002 on the accel-
erated phasing-in of double-hull or equivalent design requirements for sin-
gle-hull oil tankers 141 . It is, nevertheless, interesting that nobody seems to
have paid any attention, presumably following the US example in adopting
OPA 1990, to article 195 of the LOS Convention:
135
Caroline Laly-Chevalier, Les catastrophes maritimes et la protection des côtes françai-
ses, AFDI 2004, pp. 581-606, at p. 587; Lucchini, supra note 122, at pp. 208-209.
136
See supra note 80.
137
For a thorough presentation see Veronica Frank, Consequences of the Prestige sinking
for European and international law, 20 TIJMCL 2005, pp. 1-64, especially at pp. 18-25.
138
MERC 111/50, Annex 2, amending MARPOL 73/78, Annex I, Regulation H; text avail-
able at <www.imo.org>.
139
MERC 111/50, Annex 1, paragraph 7, amending MARPOL 73/78, Annex I, Regulation
G; MERC 112/50 amending the Condition Assessment System; texts available at <www.imo.org>.
140
MERC 111/50, Annex 1, paragraph 4, amending MARPOL 73/78, Annex I, Regulation
G; text available at <www.imo.org>.
141
OJ L 249, 1 October 2003, pp. 1-4; Yves van der Meensbrugghe, De l’Erika au Prestige :
La réaction de la Communauté européenne en matière de sécurité maritime et de protection de
l’environnement marin en 2002, ADM 2003, pp. 333-345; Catherine Roche, Prévention et la
lutte contre la pollution des mers par les hydrocarbures : Les derniers développements com-
munautaires, RMCUE 2003, pp. 598-609; Wang Hui, The EU marine oil pollution prevention
regime – Recent developments, EEnvLR 2004, pp. 292-303, at 300-301.
“In taking measures to prevent, reduce and control pollution of the marine en-
vironment, States shall act so as not to transfer, directly or indirectly, damage
or hazards from one area to another …” 142 .
The international engagements of the States concerned, notably of France,
were also reflected in the domestic scene. Amending Law no. 76-655 creat-
ing an exclusive economic zone at its Atlantic coast, France established in 2003 a
‘zone de protection écologique’ 143 applicable also at the Mediterranean coast 144 ,
conceived as a ‘déclinaison’, a functional derivative of the exclusive economic
zone 145 . In the new zone the State authorities implement and enforce domes-
tic laws and regulations and exercise
“en outre les compétences reconnues par le droit international relatives à la
protection et à la préservation du milieu marin”.
In practice, therein lies the legal basis for the domestic enforcement, includ-
ing the examination of documents, physical examination and even the arrest
of the ship 146 , of international rules and regulations under MARPOL and as-
sorted IMO instruments as well as under the EC maritime environmental
regulations and directives147 . Nothing untoward in these provisions but an in-
142
Thus also Laly-Chevalier, supra note 135, at p. 588.
143
Loi no. 2003-346 du 15 avril 2003 relative à la création d’une zone de protection écolo-
gique au large des côtes du territoire de la République, JO du 16 avril 2003, modifiant Loi no.
76-665 relative à la zone économique au large des côtes du territoire de la République, JO 16
juillet 1976; text available at <legisfrance.gouv.fr>.
144
Which necessitates a delicate delimitation exercise; décret no. 2004-33 du 8 janvier
2004 portant création d’une zone de protection écologique au large des côtes du territoire de
la République en Méditerranée, JO du 10 janvier 2004; available at <legisfrance.gouv.fr>. See
also Irini Papanicolopulu, Some thoughts on the extension of existing boundaries for the de-
limitation of new maritime zones, in Rainer Lagoni & Daniel Vignes (eds.), Maritime delimi-
tation (Brill, The Hague 2006) pp. 223-236.
145
Thus Clotilde Deffigier, La zone de protection écologique en Méditerranée, Un outil ef-
ficace de lutte contre la pollution par les navires? Commentaire de la loi no. 2003-346 du 15
avril 2003 relative à la création d’une zone de protection écologique au large des côtes du ter-
ritoire de la République, RJE 2004, pp. 129-141 and pp. 257-266, at p. 131; Sarah Wolf, Neue
Tendenzen zur Ausdehnung küstenstaatslicher Umweltkompetenzen auf See: Eine Untersu-
chung am Beispiel der französischen “zone de protection écologique” im Mittelmeer, 66 Za-
öRV 2006, pp. 73-141.
146
See article L218-29 of the Code de l’environnement, as amended by article 6 of Loi no.
2001-380, JO of 4 May 2001; by article 4 of Loi no. 2003-346 of 15 April 2003, JO of 16
April 2003; and article 30 paragraphs 1 and 9 of Loi 2004-204 of 9 March 2004, JO of 10
March 2004; as further specified in décret no. 95-411 of 19 April 1995, JO of 19 April 1995;
all available at <legifrance.gouv.fr>
147
See, however, case C-308/06, The Queen on the application of The International Asso-
ciation of Independent Tanker Owners (Intertanko), The International Association of Dry
Cargo Shipowners (Intercargo), The Greek Shipping Cooperation Committee, Lloyd’s Regis-
ter, The International Salvage Union v. The Secretary of State for Transport, Reference for
teresting aside in article L218-21 of the Code, which makes the tools of
criminal enforcement applicable also
“aux navires … étrangers même immatriculés dans un territoire relevant d’un
gouvernement non partie à la Convention [MARPOL]” 148 ,
although the sanctions provided include only financial penalties 149 . On the
face of it, one would argue for a clear case of expanding jurisdiction where
none exists, a textbook case of a pactum tertiis. However, the rules to which
reference is made are actually the “generally accepted international rules and
standards” of article 211 of the Law of the Sea Convention. And it has been
argued – quite convincingly – that the widespread acceptance of these rules
by State practice, both among the parties to MARPOL and other IMO in-
struments and the world community at large, has rendered the way in which
they find expression “only of secondary importance” 150 . Indeed, on a rather
convoluted but thoroughly researched argument, the ILA Committee on
coastal jurisdiction over marine pollution concluded in its 2000 Final Report
that although such standards “cannot be equated with customary law nor
with legal instruments in force for the States concerned” 151 , yet
“[e]ven in the hypothesis that the concrete international rules and standards re-
ferred to are of a conventional nature, the question whether the State is a party
to the convention containing a particular international rule or standard be-
comes irrelevant for the State in question to exercise prescriptive jurisdiction,
as long as that rule or standard is generally accepted.” 152 .
In other words, the consent or, at the very least: the acquiescence, of the for-
eign State to have its vessels submitted to French coastal State jurisdiction is
presumed and eventually enforced: it seems that the implementation of the
rule has not given rise to any protest by affected States, although naturally
the ships involved had recourse to judicial protection.
A variation of the same rule, but with no implementation in practice as yet
and consequently no evidence of foreign State reaction, is also to be found in
the Italian law for the creation of a ‘zona di protezione ecologica’, in which
preliminary ruling from the High Court of Justice (England and Wales), Queen’s Bench Divi-
sion (Administrative Court); available at <curia.europa.eu>.
148
Article L218-21 of the Code de l’environnement, as amended by article 3 of Loi no.
2003-346 of 15 April 2003, JO of 16 April 2003; and article 30 paragraphs 1 and 5 of Loi
2004-204 of 9 March 2004, JO of 10 March 2004; available at <legifrance.gouv.fr>.
149
Ibid., in fine.
150
ILA, Report of the Sixty-ninth Conference, London 2000, Final Report of the Commit-
tee on coastal jurisdiction over marine pollution (London 2000) pp. 443-512, Conclusion no.
6, at p. 487.
151
Ibid., Conclusion no. 2, at p. 475.
152
Ibid., Conclusion no. 6, at p. 487.
“le norme del diritto italiano, del diritto dell’Unione europea e dei trattati in-
ternazionali in vigore per l’Italia” 153
apply
“anche nei confronti delle navi battenti bandiera straniera e delle persone di
nazionalità straniera” 154 .
The same rule is repeated in article 6 of the Slovenian Ecological Protection
Zone 155 . In this case, however, the exercise of the jurisdictional powers of the
coastal State in the EEZ certainly covers all vessels present therein irrespec-
tive of their nationality.
The Mediterranean zones of environmental protection do not make ex-
press reference to the freedom of navigation. Although the respective domes-
tic regulations may allow for the eventual seizure of the offending vessel,
such interference is – at least for the time being – within the regulatory
framework of the Law of the Sea Convention. However, the balance between
navigation and the exercise of coastal State jurisdiction for the protection
and preservation of the marine environment is made explicit in the Croatian
Ecological and Fisheries Protection Zone:
“… [T]he ecological and fisheries protection zone of the Republic of Croatia
protected in this manner remains a sea area where all States shall enjoy free-
doms, as guaranteed under international law, of navigation, overflight, laying
submarine cables and pipelines, and other internationally lawful uses of the
sea” 156 .
It seems that even the proliferation of new zones in such a sensitive area as
the Mediterranean Sea, where there is simply not enough space between op-
posite coasts for the full expansion of 200-mile zones, is nevertheless carried
out generally in accordance with the Law of the Sea Convention and cer-
tainly in full cognizance of the delicate balance the Convention has achieved
among conflicting uses of the seas. Whether this has been accomplished by a
153
Article 2 paragraph 2 of Legge no. 61 di 8 febbraio 2006, Istituzione di zone di prote-
zione ecologica oltre il limite esterno del mare territoriale, Gazzetta Ufficiale no. 52 del 3
marzo 2006; available at <gazzette.comune.jesi.an.it>.
154
Ibid. For an overview see Tullio Scovazzi, La zone de protection écologique italienne
dans le contexte confus des zones côtières méditerranéennes, 10 ADM 2005, pp. 209-222;
Giuseppe Cataldi, L’Italia e la delimitazione degli spazi marini. Osservazioni sulla prassi re-
cente di estensione della giuridizione costiera nel Mediterraneo, RDI 2004, pp. 621-642.
155
Act on the Ecological Protection Zone and the Continental Shelf of the Republic of Slo-
venia, 22 October 2005, 60 Law of the Sea Bulletin 2006; available at <www.un.org>.
156
Article 4 of the Decision of the Croatian Parliament for the extension of the jurisdiction
of the Republic of Croatia in the Adriatic Sea, 3 October 2003, as amended on 3 June 2004
and in force since 3 October 2004; 55 Law of the Sea Bulletin 2004, p. 31; text available at
<www.un.org>.
judicious reading of the rules or rather it is inherent in the EEZ concept mer-
its perhaps further examination.
4. DE UNI PLURIA?
The accommodation of conflicting uses in the exclusive economic zone

often disguises the fact that the exclusive economic zone as defined in the
Law of the Sea Convention does not exist. Out of 159 States that have rati-
fied to date the Law of the Sea Convention, at least 106 have attached to
their instruments of ratification a declaration 157 of some sort: A brief look
through these documents would render immediately obvious the fact that
every single State claiming an EEZ – or even contemplating establishing one
– has a different understanding of what is the exact extent of the zone and
what are the functions it allows therein.
Thus, in a statement made at the time of signing the Law of the Sea Con-
vention, Chile reaffirmed its unique understanding that the exclusive eco-
nomic zone has territorial connotations 158 whereas Germany, in an equally
lengthy statement, appeared clearly opposed to any claim of sovereignty 159 .
The exact content of the rights accorded to the coastal State under article 56
of the Law of the Sea Convention is also subject to different interpretations:
157
On the legal status of such declarations see L.D.M. Nelson, Declarations, statements
and ‘disguised reservations’ with respect to the Convention on the Law of the Sea, 50 ICLQ
2001, pp. 767-786.
158
Statement made upon signature on 10 December 1982 and confirmed upon ratification
on 25 August 1997: “The exclusive economic zone has a sui generis legal character distinct
from that of the territorial sea and the high seas. It is a zone under national jurisdiction, over
which the coastal State exercises economic sovereignty and in which third States enjoy free-
dom of navigation and overflight and the freedoms inherent in international communication.
The Convention defines it as a maritime space under the jurisdiction of the coastal State,
bound to the latter’s territorial sovereignty and actual territory, on terms similar to those gov-
erning other maritime spaces, namely the territorial sea and the continental shelf”; available at
<www.un.org>.
159
Statement made upon accession on 14 October 1994: “In the exclusive economic zone,
which is a new concept of international law, coastal States will be granted precise resource-
related rights and jurisdiction. All other States will continue to enjoy the high-seas freedoms
of navigation and overflight and of all other internationally lawful uses of the sea. These uses
will be exercised in a peaceful manner, and that is, in accordance with the principles embod-
ied in the Charter of the United Nations. In articles 56 and 58 a careful and delicate balance
has been struck between the interests of the coastal State and the freedoms and rights of all
other States. This balance includes the reference contained in article 58, paragraph 2, to arti-
cles 88 to 115 which apply to the exclusive economic zone in so far as they are not incom-
patible with Part V. Nothing in Part V is incompatible with article 89 which invalidates claims
of sovereignty”; available at <www.un.org>.
Brazil considers that military exercises in the exclusive economic zone ne-
cessitate the prior consent of the coastal State 160 whereas the Netherlands
clearly considers such a suggestion anathema 161 .
Interesting is also the different understanding of States, indeed member
States of the European Union, in matters pertaining to coastal State jurisdic-
tion for the protection of the marine environment. France 162 – and lately Slo-
venia 163 – recognise the environmental protection rules in the exclusive eco-
nomic zone as consolidation of the general rules of the law of the sea. Portu-
gal, on the other hand, in already giving notice of an evolutionary reading of
its contractual obligations:
“Bearing in mind the available scientific information and with a view to the
protection of the environment and the sustained growth of economic activities
based on the sea, Portugal will, preferably through international cooperation
and taking into account the precautionary principle, carry out control activities
beyond the areas under national jurisdiction.” 164 .
It is true that the exclusive economic zone has descended from the equally
wide variety of fisheries zones established mostly by the Latin American
States in the 1940s. Indeed, at the beginning the difference between the two
160
Statement made upon signature on 10 December 1982: “The Brazilian Government un-
derstands that the provisions of the Convention do not authorize other States to carry out in
the exclusive economic zone military exercises or manoeuvres, in particular those that imply
the use of weapons or explosives, without the consent of the coastal State.”; available at
<www.un.org>. For the military uses of ocean spaces in general see, instead of many others,
Alva Myrdal (& Adolfo Maresca), Preserving the oceans for peaceful purposes, 133 RCADI
1971-II, pp. 1-14; Charles E. Pirtle, Military uses of ocean space and the Law of the Sea in the
new millennium, 31 ODIL 2000, pp. 7-45.
161
Statement made upon ratification on 28 June 1996: “The Convention does not authorize
the coastal State to prohibit military exercises in its exclusive economic zone. The rights of
the coastal State in its exclusive economic zone are listed in article 56 of the Convention, and
no such authority is given to the coastal State. In the exclusive economic zone all States enjoy
the freedoms of navigation and overflight, subject to the relevant provisions of the Conven-
tion.”; available at <www.un.org>.
162
Statement made upon signature on 10 December 1982: “The provisions of the Conven-
tion relating to the status of the different maritime spaces and to the legal regime of the uses
and protection of the marine environment confirm and consolidate the general rules of the law
of the sea and thus entitle the French Republic not to recognize as enforceable against it any
foreign laws or regulations that are not in conformity with those general rules.”; available at
<www.un.org>.
163
Declaration made upon succession on 16 June 1995: “The Republic of Slovenia consid-
ers that its Part V ‘Exclusive economic zone’, including the provisions of article 70, ‘Right of
geographically disadvantaged States’, forms part of the general customary international law.”;
available at <www.un.org>.
164
Statement made upon ratification on 3 November 1997; available at <www.un.org>.
terms was not always clear 165 . However, the proliferation of ‘fisheries zones’
or ‘pollution protection zones’ or ‘ecological protection zones’ ever since
has not contributed to the uniformity of the concept. States have repeatedly
chosen variations of the rule rather than the original item, opting for different
combinations of the jurisdictional powers attributed to the coastal State and
certainly for different distances from the baseline; indeed, it seems that few
of the exclusive economic zones established in the world today extend to the
full complement of 200 miles from the shore.
A special case and at the same time a typical example of the multi-
functionality of the EEZ concept may be found in the Mediterranean Sea 166 .
Lack of space has caused a certain reluctance among the coastal States to
take advantage of their full jurisdictional powers under the Law of the Sea
Convention – and engage in a major delimitation exercise. The difficulty
was further accentuated by the exclusive jurisdiction of the European Com-
munity in matters of fisheries: discussions for a common European Fisheries
Zone in the Mediterranean waters (in addition to the one already in existence
in the Atlantic and North Sea waters) have just begun and will long continue167 .
Spain was the first to take the plunge instituting in 1997 a 37-mile fisher-
ies protection zone in the European coast 168 , which promptly caused a reac-
165
Jean-Pierre Quéneudec, Les rapports entre zone de pêche et zone économique exclusive,
32 GYBIL 1989, pp. 138-155; Carl-August Fleischer, The right to a 200-mile exclusive eco-
nomic zone or special fishery zone, 14 San Diego LR 1976-1977, pp. 548-583.
166
For an overview see Tullio Treves, Les zones maritimes en Méditerranée : Compatibili-
té et incompatibilité avec la Convention sur le droit de la mer de 1982, in Institut de droit
économique de la mer, Les zones maritimes en Méditerranée, Actes du colloque, Monaco, 4-6
octobre 2001, 6 Revue de l’INDEMER 2002, pp. 19-35; Tullio Scovazzi, Les zones côtières
en Méditerrannée : évolution et confusion, ibid., pp. 95-108; Umberto Leanza, Le nouveau
droit de la mer Méditerrannée (Ed. Scientifica, Napoli 1994).
167
Communication from the Commission to the Council and the European Parliament lay-
ing down a Community Action Plan for the conservation and sustainable exploitation of fish-
eries resources in the Mediterranean Sea under the Common Fisheries Policy, COM (2002)
535 final, 9 October 2002; Declaration of the Ministerial Conference for the Sustainable De-
velopment of Fisheries in the Mediterranean, Venice, 25-26 November 2003; both available
at <www.europa.eu>. For an early comment see also P.W. Birnie, An EC exclusive economic
zone: Marine environmental aspects, 23 ODIL 1992, pp. 193-216.
168
Real decreto 1315 de 1 agosto 1997, BOE no. 204 de 26 agosto 1997, p. 25628, as
amended by Real decreto del 31 marzo 2000, BOE no. 79 de 1 abril 2000; text available at
<www.boe.es>. See in general D. Blázquez Peinado, El real decreto 1315/1997 de 1 de agosto
por el que se establece una zona de protección pesquera en el Mar Mediterráneo, 49(2) REDI
1997, pp. 334-339; Eva María Vázquez Gómez, Problèmes de conservation et de gestion des
ressources biologiques en Méditerranée. La zone de protection de la pêche espagnole, in Ca-
taldi (ed.), supra note 33, pp. 183-191.
tion by France (in pre-Malaga days) 169 . It evidently followed the example of
Tunisia 170 in the African coast, which had proclaimed a fisheries zone al-
ready since the 1960s before instituting in 2005 a full exclusive economic
zone 171 – all to the sound of loud Italian protests 172 . Malta had also created a
12-mile fishing zone in 1971, subsequently extended to 25 miles by a deci-
sion of 18 July 1978 173 , again generating protests by Italy 174 . Algeria declared
an exclusive fisheries zone in 1994, extending to 32 miles between the west-
ern frontier with Morocco and Ras Ténès and to 52 miles from there east-
wards175 . Libya declared in 2005 a 62-mile fisheries protection zone, where
“no fishing of any kind or by any means shall be permitted … except by permit
from the competent authorities.” 176 .
The newly proclaimed ecological zones of Croatia and Slovenia have also
initiated a protracted delimitation ruckus in the Adriatic Sea 177 . On the other
169
Protestation du Gouvernement français au sujet de l’établissement de la zone de protec-
tion de la pêche en Méditerranée du 22 septembre 1998, ADM 1997, p. 655; see also Víctor
Louis Gutiérrez Castillo, L’Espagne et les problèmes de délimitation en Méditerranée, in Ca-
taldi (ed.), supra note 33, pp. 169-182.
170
Loi no. 62-35 du 16 octobre 1962, Journal officielle de la République Tunisienne no. 53
des 12-16 octobre 1962.
171
Law 50/2005 of 27 June 2005, 58 Law of the Sea Bulletin 2005, also available at
<www.un.org>. See also Habib Slim, Observations sur la loi tunisienne du 27 juin 2005 rela-
tive à la zone économique exclusive, 10 ADM 2005, pp. 223-235.
172
Tullio Scovazzi, L’accordo di pesca italo-tunisino del 19 giugno 1976, RDI 1976, pp.
761-767; idem., Gli accordi bilaterali sulla pesca (Giuffrè, Milano 1977); Tullio Treves, Il
diritto di mare e l’Italia (Giuffrè, Milano 1995) at pp. 89-91.
173
For the text of the decision see RGDIP 1979, p. 536.
174
See Natalino Ronzitti, Le zone di pesca nel Mediterraneo e la tutela degli interessi ita-
liani, Rivista marittima 1999, pp. 31-35; Benedetto Conforti, The Mediterranean and the ex-
clusive economic zone, in Umberto Lenza (ed.), Il regime giuridico internazionale del mare
Mediterraneo (Giuffrè, Milano 1987); Gemma Andreone, Les conflits de pêche en Méditerranée,
in Cataldi (ed.), supra note 33, pp. 193-220.
175
Décret législatif no. 94-13 du 28 mai 1994, Journal officielle de la République Algé-
rienne no. 40 du 22 juin 1994.
176
General People’s Committee Decision no. 37 of 1373 from the death of the Prophet
(AD 2005) concerning the declaration of a Libyan fisheries protection zone in the Mediterra-
nean Sea, annexed to the letter dated 29 March 2005 from the Chargé d’affaires a.i. of the
Permanent Mission of the Libyan Arab Jamahiriya to the UN addressed to the Secretary-
General, doc. A/60/68; available at <www.un.org>.
177
Maja Sersic, The Adriatic Sea: Semi-enclosed sea in a semi-enclosed sea, in Cataldi
(ed.), supra note 33, pp. 329-347; Budislav Vukas, The extension of the jurisdiction of the
coastal States in the Adriatic Sea, in Natalino Ronzitti (ed.), I rapporti di vicinato dell’Italia
con Croazia, Serbia-Montenegro e Slovenia (2005) pp. 251-268; idem., State practice in the
aftermath of the UN Convention on the Law of the Sea: The exclusive economic zone and the
Mediterranean Sea, in A. Strati, M. Gavouneli & N. Skourtos (eds.), Unresolved Issues and
New Challenges to the Law of the Sea (Martinus Nijhoff, Leiden/Boston 2006) pp. 251-258.
side, Italy has delayed the presidential decree specifying the limits of the
Italian zona di protezione ecologica 178 while bilateral negotiations are in pro-
gress with the neighbours.
The de facto freezing of maritime claims is even more pronounced in re-
spect to the full jurisdictional powers in the exclusive economic zone. Mo-
rocco was one of the first to claim a comprehensive 200-mile exclusive eco-
nomic zone in 1981, for both its Atlantic and Mediterranean waters 179 . Egypt
had already indicated in 1983 that it would
“...exercise … the rights attributed to it by the provisions of Parts V and VI of
the … Convention … in the exclusive economic zone situated beyond and ad-
jacent to its territorial sea in the Mediterranean Sea and in the Red Sea.” 180 ;
but it seems that the zone has become functional only upon the conclusion of
the 2003 EEZ delimitation agreement with the Republic of Cyprus181 . Indeed,
the coming into force of that agreement necessitated the retroactive declara-
tion of the Cypriot exclusive economic zone 182 – a legal pirouette to mini-
mise reactions from the neighbouring Turkey; but to no avail 183 .
It becomes thus clear that the EEZ concept has (acquired? – most probably;
but such acquisition was immediate and acquiesced by the States) an inher-
ent flexibility both in terms of spatial delimitation and of substantive content,
178
See article 1 paragraph 2 of Legge no. 61 di 8 febbraio 2006, supra note 153.
179
Dahir no. 1-81-179 of 8 April 1981 promulgating Law no. 1-81 of 18 December 1980;
see also the 1992 Fisheries Agreement between the European Community and the Morocco,
OJ L 99, 31 December 1992. For an overview see Saïd Ihraï, Les zones maritimes marocaines :
L’état des lieux, 6 Revue de l’INDEMER 2002, pp. 87-107; Abdelkader Lahlou, Une nouvelle
approche de la relation halieutique Union européenne – Maroc : D’un accord de dimension
politique à une convention à vocation économique, in Casado Raigón (éd.), supra note 122,
pp. 39-46.
180
Statement made upon ratification on 26 August 1983; available at <www.un.org>.
181
Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the de-
limitation of the delimitation of the exclusive economic zone, concluded in Cairo on 17 Feb-
ruary 2003 and entered into force on 7 March 2004; text available at <www.un.org>. For a
general presentation see Emmanuella Doussis, L’Accord du 17 février 2003 entre Chypre et
l’Égypte sur la délimitation de leurs zones économique exclusives : Bref commentaire, 9 ADM
2004, pp. 143-155; Irini Papanicolopulu, Il confine marino. Unità o pluralità? (Giuffrè, Milano
2005) at pp. 255-257.
182
Promulgated by Law 64 (I)/2004, ` + +' @ { +'-
@ $ @ ^ + * +@ , Official Gazette of the Republic
Annex I, no. 3831 of 5 April 2004; text available at <www.cygazette.com>. At the same time
Cyprus also promulgated a contiguous zone of 12 miles; Law 63(I)/2004, ibid.
183
For the Turkish objection and the Cyprus Statement of Position see Report of the Secre-
tary-General to the General Assembly, Doc. A/60/63 of 5 March 2005, paragraph 11; avail-
able at <www.un.org>. Turkey has declared an exclusive economic zone in the Black Sea by
Decree No. 86/11264 of the Council of Ministers, Official Gazette, 17 December 1986; avail-
able at <www.un.org>.
which allows the coastal State to essentially pick and choose the specific
functions it wishes to exercise in the marine area it decides to designate as
such.
In view of the wide range of available options, including those not explic-
itly referred to in the text of the Law of the Sea Convention 184 , the coastal
State could well attempt to concoct its own understanding of what consti-
tutes an exclusive economic zone and what functions it can exercise therein.
In so doing, the State fiddles with the border between the acceptable varia-
tion – or even conceivably: innovation – and the outright breach of the Law
of the Sea Convention, which thus becomes increasingly vague and difficult
to discern. Examples abound of States seeking to push a little further the ac-
ceptable limit, usually in pursuit of an equally worthy (or simply: valued)
objective, the typical case being the protection of the environment 185 . How-
ever, for each such daring move there seems to be an equally robust reaction:
the tension between the coastal State and the world community, personified
in this case mostly by flag States, remains fluid and strong.
There is, however, an inescapable conclusion to be drawn from recent
practice: a coastal State may well pursue unilateral interests but it can never
act in a unilateral manner. Time and again, individual initiatives have been
condemned and often frustrated whereas multilateral action has inevitably
been shown to be much more effective – and eventually successful. On the
other hand, one cannot underestimate the propulsion power of a strongly mo-
tivated unilateral action in a decentralised international system 186 . The threat
of unilateralism seems to have become both the weapon of choice and the
best available means to reach a mutually acceptable solution on the global
level as all parties remain convinced that, at the end of the day, universal
problems require universal solutions: nothing can be more universal in char-
184
Indeed, INDEMER has distinguished in its 2001 Colloque between, on the one hand,
traditional maritime zones, i.e. the territorial sea, international straits, the exclusive economic
zone, and, on the other hand, ‘zones maritimes non prévues par la Convention’, i.e. fisheries
zones, specially protected areas and sea-mammals sanctuaries; supra note 166.
185
See, instead of many others, Ilona Chayne, Environmental unilateralism and the
WTO/GATT system, 24 Georgia JICL 1995, pp. 433-465; Laurence Boisson de Chazournes,
Unilateralism and environmental protection: issues of perception and reality of issues, 11
EJIL 2000, pp. 315-338.
186
For a brief walk through a vast field see Philippe J. Sands, ‘Unilateralism’, values and
international law, 11 EJIL 2000, pp. 291-302; Tom J. Farer, Beyond the Charter frame: Uni-
lateralism or condominium?, 96 AJIL 2002, pp. 359-364; Madeline H. Morris, Terrorism and
unilateralism. Criminal jurisdiction and international relations, 36 Cornell ILJ 2004, pp. 473-
489; John B. Attanasio (ed.), Multilateralism v. unilateralism. Policy choices in a global soci-
ety (British Institute of International & Comparative Law, London 2004).
acter and impact than the sea and the environment. The scene is therefore set
for many more acts to a never-ending play of characters.
CHAPTER 4
FISHERIES JURISDICTION IN THE HIGH SEAS
Although navigation and fisheries have always been the two more traditional
uses of the seas, both long created freedoms of the high seas, any similarity
in their juridical treatment remains superficial. In contrast to navigation,
which relates to the appropriate use of the same pool of water (barring cli-
mate change modifications) and thus becomes conducive to spatial appropria-
tion, fishing relates to the acquisition and exploitation of a commodity,
which, at the end of the day, has proved exhaustible. In the words of Grotius:
“and if it were possible to prohibit … fishing, for in a way it can be maintained
that fishing is exhaustible, still it would not be possible to prohibit navigation,
for the sea is not exhausted by that use.” 1 .
Coupled with the continuous movement of fish, which stubbornly refuse to
remain within man-made boundaries, any attempt at regulation must neces-
sarily take into consideration the fact that fishing remains a ‘common prop-
erty natural resource’ 2 , subject to property rights only once it is removed from
the sea.
Therein lies the difficulty in codifying and developing international fisher-
ies law. Fishing interests propagate the greatest possible open space avail-
able to common use, thus keeping at a minimum zones of coastal State juris-
diction. Historical experience, however, teaches us that the exploitation of
common resources is by definition inefficient 3 : when that resource is also
exhaustible, the need to agree on commonly acceptable principles regulating
such exploitation becomes imperative. Indeed, exploitation in that setting
does not simply denote the management of the resource but also, much more
1
Hugo Grotius, The Freedom of the Seas, or the right which belongs to the Dutch to take
part in the East Indian trade. A dissertation (translated with a revision of the Latin text of
1633 by Ralph van Deman Magoffin, New York 1916) at p. 34, text available at the Grotius
collection, <www.ppl.nl>. For the modern-day discussion see W. Frank Newton, Inexhausti-
bility as a law of the sea determinant, 16 Texas JIL 1981, pp. 396-432.
2
1999) at p. 281. See also Grotius’ reference to Athenaus: “The sea is the common property to
all but the fish are the private property of him who catches them”; supra, at p. 25.
3
Thus the seminal Garrett Hardin, The tragedy of the commons, 162 Science 1968, pp.
1243-1248.
urgently, the preservation of that valuable commodity for the benefit of the
present and future generations. In the decentralised system of the interna-
tional community, any such law-making exercise instantly acquires an addi-
tional element of difficulty and thus uncertainty – and immediately raises the
question of proper and effective implementation.
The Law of the Sea Convention has been placed squarely in the midst of
this legal and economic conundrum, attempting at the same time to respect
traditional concepts of jurisdiction, to satisfy the increasing needs of the
world community for sustenance and to create a system capable to address
the rising and often unforeseen challenges of the future.
1. THE TRADITIONAL REGULATION OF HIGH SEAS FISHERIES
Although fisheries was such an old use of the sea, it was only in the sec-
ond half of the 20th century that the international community was able to
codify international fisheries law in a single instrument. The 1958 Geneva
Convention on Fishing and Conservation of the Living Resources of the
High Seas 4 was at the same time the culmination of the zonal approach to
fisheries management and the turning point for the regulation of fisheries.
Traditional in its approach, it allocated coastal fisheries to the jurisdiction
of the coastal State within its territorial waters – and stopped there. Although
it referred to the ‘special interest’ of the coastal State in the conservation of
natural resources to areas adjacent to its territorial sea 5 , it nevertheless reiter-
ated the customary freedom of fishing in the high seas 6 , first affirmed in the
4
559 UNTS 285. See in general André Gross, La Convention sur la pêche et la conserva-
tion des ressources biologiques de la haute mer, RCADI 1959-II, pp. 3-89; M. Doliver Nel-
son, The development of the legal regime of high seas fisheries, in Alan Boyle & David Free-
stone (eds.), International law and sustainable development (Oxford 1999) pp. 113-118.
5
Article 6 paragraph 1 of the Convention reads: “A coastal State has a special interest in
the maintenance of the productivity of the living resources in any area of the high seas adja-
cent to its territorial sea”; ibid., text also available at <www.un.org>. For State practice, espe-
cially that of Canada, see J.L. Meseguer, Le régime juridique de l’exploitation de stocks
communs de poissons au-delà des 200 miles, 28 AFDI 1982, pp. 884-899. See also the La
Bretagne arbitration, Dispute concerning filleting within the Gulf of St. Laurence, Canada v.
France, award of 17 July 1986, 90 RGDIP 1986, pp. 713-786; W.T. Burke, Coastal State fish-
ery regulation under international law: A comment on the La Bretagne award of July 17, 1986
(The arbitration between Canada and France), 25 San Diego LR 1988, pp. 495-533.
6
Article 1 of the Convention reads: “All States have the right for their nationals to engage
in fishing on the high seas, subject (a) to their treaty obligations, (b) to the interests and rights
of coastal States as provided for in this Convention, and (c) to the provisions contained in the
following articles concerning conservation of the living resources of the high seas”; ibid.
FISHERIES JURISDICTION IN THE HIGH SEAS 99
Bering Sea arbitration 7 . The ‘special interest’ language lies at the root of the
ICJ decision in the Fisheries Jurisdiction cases, where the Court held that a
coastal State dependant on fishing for its socio-economic livelihood enjoyed
in certain circumstances preferential rights of access to high seas resources
under customary law. As a corollary to such rights, the Court also found that:
“Both States have an obligation to take full account of each other’s rights and
of any fishery conservation measures, the necessity of which is shown to exist
in those waters. It is one of the advanced of maritime international law, result-
ing from the intensification of fishing, that the former laissez-faire treatment of
the living resources of the high seas has been replaced by a recognition of a
duty to have due regard to the rights of other States and the needs of conserva-
tion for the benefit of all. Consequently, both parties have the obligation to
keep under review the fishery resources in the disputed waters and to examine
together, in the light of scientific and other available information the measures
required for conservation and development of equitable exploitation of these
resources” 8 .
Although the obligation to cooperate was further reaffirmed, preferential
access to fishing did not have any decisive effect in either the 1984 Gulf of
Maine delimitation 9 or the 1993 Jan Mayen case 10 . Reference to continued
access to ‘traditional fishing grounds’ is indeed made in the 1999 Yemen-
Eritrea Maritime Boundary arbitration 11 , conceived as a restriction of the ju-
7
Behring Sea Fur Seals arbitration, Great Britain v. United States, Arbitration Award
(Paris, 15 August 1893), 1 Moore’s International Arbitration Awards 1898, pp. 755-917; 1
IELR 2000, pp. 43-88.
8
Fisheries Jurisdiction cases, UK v. Iceland, ICJ Reports 1974, paragraph 72; Federal Re-
public of Germany v. Iceland, ICJ Reports 1974, paragraph 64; both available at <www.icj-
cij.org>. See, instead of many others, R.R. Churchill, The Fisheries Jurisdiction case: The
contribution of the International Court of Justice to the debate on coastal States’ fisheries
rights, 24 ICLQ 1975, pp. 82-105.
9
Case concerning delimitation in the maritime boundary in the Gulf of Maine area, Can-
ada v. USA, ICJ Reports 1984, available at <www.icj-cij.org>.
10
Case concerning maritime delimitation in the area between Greenland and Jan Mayen,
Denmark v. Norway, ICJ Reports 1993, available at <www.icj-cij.org>. See, instead of many
others, Haritini Dipla, L’arrêt de la Cour internationale de justice en l’affaire de la délimita-
tion maritime dans la région située entre le Groenland et Jan Mayen, RGDIP 1994, pp. 899-930;
María Pilar Pozo Serrano, La sentencia de la CIJ de 14 junio de 1993 sobre la delimitación de
la región situada entre Groenlandia y Jan Mayen, 49 REDI 1997, pp. 117-133. See also Lewis
E. Queirolo, Richard S. Johnston & Zhang Zhengkun, The nature and evolution of coopera-
tive fishing arrangements in extended jurisdiction zones, 21 Marine Policy 1997, pp. 255-266.
11
PCA, In the matter of an Arbitration pursuant to an Agreement to arbitrate dated 3 Octo-
ber 1996 between the Government of the State of Eritrea and the Government of the Republic
of Yemen, Award of the Arbitral Tribunal in the second stage of the proceedings (Maritime
Delimitation), 17 December 1999, paragraphs 108-111; text available at <www.pca-cpa.org>.
For a thorough discussion see Nuno Sérgio Marques Antunes, The 1999 Eritrea-Yemen mari-
risdictional powers of the neighbours over their respective maritime zones

and imposing upon them a further obligation to “make mutually agreed regu-
lations for the protection of this traditional fishing regime” 12 , which would
also include any administrative measures taken in view of environmental
considerations “impacting upon these traditional rights” 13 . One the other hand,
in 2006 the alleged ‘critical dependence’ of Barbadian fishermen upon access
to traditional fishing grounds was not considered sufficient by the Arbitral
Tribunal to have an impact upon the determination of an equidistant delimi-
tation line in the western sector of the boundary between Barbados and
Trinidad & Tobago; in mitigation, the Tribunal imposed upon Trinidad &
Tobago the obligation
“… to negotiate in good faith an agreement with Barbados that would give
Barbados access to fisheries within the EEZ of Trinidad and Tobago, subject
to the limitations and conditions spelled out in that agreement and to the right
and duty of Trinidad and Tobago to conserve and manage the living resources
within its jurisdiction” 14 .
The cooperation restriction of the jurisdictional rights of the coastal State
fully conforms with the letter and the spirit of the Law of the Sea Conven-
tion, which has severely truncated the freedom of fishing by enclosing large
parts of the high seas into 200 miles of exclusive economic zones where the
coastal State has the exclusive right to control access, exploitation and con-
servation of the fisheries resources 15 . As more than 90% of commercial fish-
eries are located within the EEZ under the jurisdiction of the coastal State, it
time delimitation award and the development of international law, 50 ICLQ 2001, pp. 299-
344, especially at pp. 304-305.
12
Ibid., paragraph 109.
13
Ibid.
14
Arbitral Tribunal constituted pursuant to Article 287 and in accordance with Annex VII
of the UN Convention on the Law of the Sea, In the matter of an arbitration between Barba-
dos and the Republic of Trinidad & Tobago, Award, 11 April 2006, paragraph 292; available
at <www.pca-cpa.org>. For a first presentation see Yoshifumi Tanaka, Arbitral Tribunal
Award, Annex VII LOSC, Barbados v. Trinidad and Tobago, Award of the Arbitral Tribunal
constituted pursuant to Article 287 and in accordance with Annex VII of the UN Convention
on the Law of the Sea: The Barbados and the Trinidad and Tobago case (11 April 2006), 21
TIJMCL 2006, pp. 523-532, at p. 528; Philippe Weckel & Guillaume Areou, Tribunal arbitral
de la mer (Annexe VII CNUDM), Sentence du 11 avril 2006, Délimitation de la ZEE et du
plateau continental (Barbade c. Trinité-et-Tobago), RGDIP 2006, pp. 711-721; Barbara Kwiat-
kowska, Barbados/Trinidad and Tobago, Award on Jurisdiction and Merits, at <http://www.pca-
cpa.org/, available at 45 ILM 800 (2006), UN Convention on the Law of the Sea Annex VII
Arbitral Tribunal, April 11, 2006, 101 AJIL 2007, pp. 149-157.
15
Article 56 paragraph 1(a) LOSC. See in general Eloy Ruiloba García, Las zonas de ex-
plotación conjunta de los recursos pesqueros: una forma alternativa de cooperación, 54 REDI
2002, pp. 753-771.
becomes evident that the collapse of many domestic fisheries and the associ-
ated overexploitation of commercial fisheries worldwide 16 can be safely at-
tributed to the shortcomings of domestic jurisdiction 17 .
With the dual purpose of conservation and utilisation of the living re-
sources in the EEZ in mind, the coastal State is obligated to promote the ob-
jective of optimum utilisation 18 while determining the total allowable catch
(TAC) 19 , the maximum amount of fish which may be harvested in its exclu-
sive economic zone. Although both obligations are drafted in terms of an ex-
clusive right, yet the determination of a final number is subject to an impres-
sive array of conditions. The coastal State must ensure that the maintenance
of such living resources “is not endangered by over-exploitation” 20 . With a
view to accomplish this exalted task and “taking into account the best scien-
tific evidence available” 21 , the coastal State must adopt “proper conservation
and management measures” 22 , which
“shall also be designed to maintain or restore populations of harvested species
at levels which can produce the maximum sustainable yield, as qualified by
relevant environmental and economic factors, including the economic needs of
coastal fishing communities and the special requirements of developing States,
and taking into account fishing patterns, the interdependence of stocks and any
generally recommended international minimum standards, whether subregional,
regional or global.” 23 ,
while taking
16
For some impressive numbers see FAO, State of the world fisheries and aquaculture
(SOFIA) 2004, available at <www.fao.org>; Kristina M. Gjerde, High seas fisheries man-
agement under the Convention on the Law of the Sea, in David Freestone, Richard Barnes &
David Ong (eds.), The Law of the Sea. Progress and Prospects (Oxford 2006) pp. 281-307,
especially at pp. 282-290.
17
For the pitfalls of domestic jurisdiction in fisheries see Bernard H. Oxman, The territo-
rial temptation: A siren song at sea, 100 AJIL 2006, pp. 830-851, at p. 849; Richard Barnes,
The Convention on the Law of the Sea: An effective framework for domestic fisheries con-
servation?, in Freestone, Barnes & Ong (eds.), supra, pp. 233-260.
18
19
20
Article 61 paragraph 2 LOSC. It is seems that the mere commercial exhaustion of the
available resources is not the worst outcome of the depletion of a species: overfishing can
create a trophic cascade, whereby the ecosystem structure is changed so drastically that re-
covery prospects for formerly dominant species are diminished; in other words: the fish
would not return ever; Gjerde, supra note 16, at pp. 283, also quoting Kenneth T. Frank, Brian
Petrie, Jae S. Choi & William C. Leggett, Trophic cascades in a formerly cod-dominated eco-
system, 308 Science 2005, pp. 1621-1623.
21
Ibid.
22
Ibid.
23
“into consideration the effects on species associated with or dependent upon

harvested species with a view to maintaining or restoring populations of such
associated or dependent species above levels at which their reproduction may
become seriously threatened” 24 .
It is quite clear that the proliferation of such terms and conditions makes
the practical implementation of the rule a difficult puzzle to solve. It is per-
haps the best example of the split personality demonstrated by the Law of
the Sea Convention in respect of fishing. On the one hand, the Convention is
fêted as “a significant innovation in incorporating the species to the policies
relating to conservation and management” 25 ; on the other hand, the delimita-
tion of the exclusive economic zone remained “the pragmatic creation of
positive law” 26 without any geographical, ecological or biological considera-
tion taken into account. The traditional concept of jurisdiction finds therein
its conceptual limitation: even the best national measures of preservation and
management of the living resources remain fragmented and partial attempts
to address a global problem – and generate calls for closer cooperation as an
indispensable condition for the operation of the system 27 . The obligation to
cooperate becomes then both a necessary concomitant of action and a pallia-
tive for any malaise. The multiplicity of national solutions in the zones of
exclusive jurisdiction requires concerted action, for any shred of effective-
ness to be found: hence, the obligation under article 61 of the Law of the Sea
Convention for the coastal State to cooperate, as appropriate, with competent
international organisations at the subregional, regional or global level – and
not simply with other States tout court.
A first element of interaction – and at the same time, an indication of the
ecosystem approach hinted at in the Law of the Sea Convention 28 – may be
24
25
Francisco Orrego Vicuña, The changing international law of high seas fisheries (Cam-
bridge 1999) at p. 24. The LOS Convention includes specific provisions for straddling stocks:
article 63; for highly migratory species: article 64; marine mammals: article 65; anadromous
stocks: article 66; catadromous stocks: article 67; sedentary species: article 68 LOSC; see in
general John Warren Kindt, The law of the sea: anadromous and catadromous fish stocks,
sedentary species and the highly migratory species, 11 Syracuse JILC 1984, pp. 9-46.
26
Barnes, supra note 17, at p. 237. See also W.T. Burke, The Law of the Sea Convention
provisions on conditions of access to fisheries, 63 Oregon LR 1984, pp. 73-119.
27
For a thorough discussion see Giorgio Pontecorvo, The enclosure of the marine com-
mons, adjustment and redistribution, 12 Marine Policy 1988, pp. 361-372; Ellen Hey, The re-
gime for the exploitation of transboundary marine fisheries resources (Martinus Nijhoff, 1989)
at pp. 34-35; William T. Burke, Importance of the 1982 Convention on the Law of the Sea
and its future developments, 27 ODIL 1996, pp. 1-4.
28
Thus also Erik Jaap Molenaar, Ecosystem-based fisheries management, commercial
fisheries, marine mammals and the 2001 Reykjavik Declaration in the context of international
law, 17 TIJMCL 2002, pp. 561-595, at p. 575; Scott Parsons, Ecosystem considerations in
found in the coastal State’s obligation to grand to third parties access to the
living resources of the exclusive economic zone 29 , provided that it does not
have the capacity to harvest the entire allowable catch, with a view to achieve
optimum utilisation 30 of the commonly shared resource allocated to its juris-
diction. In so doing, the coastal State would have to take into consideration
another voluminous cloud of terms and conditions, which would include
“all relevant factors, including, inter alia, the significance of the living re-
sources of the area to the economy of the coastal State concerned and its other
national interests, the provisions of articles 69 [on the rights of land-locked
States] and 70 [on the rights of geographically disadvantaged States], the re-
quirements of developing States in the subregion or region in harvesting part
of the surplus and the need to minimise economic dislocation in States whose
nationals have habitually fished in the zone or which have made substantial ef-
forts in research and identification of stocks” 31 .
The practicalities of such access are to be set out in agreements concluded
between the interested parties 32 , whereby the visitors undertake to comply
with the conservation measures and domestic regulations of the coastal State 33 .
In practice (and in spite of all this exercise in verbosity) the coastal State re-
mains its own judge on the determination of its own harvesting capacity, any
allocation of surplus or the adoption of conservation and management meas-
ures: indeed, disputes over the living resources in the zones under coastal
State jurisdiction are expressly excluded from the compulsory dispute set-
tlement mechanism of the Law of the Sea Convention 34 .
The Law of the Sea Convention is much more specific in its attempt to or-
ganise inter-State cooperation with regard to straddling stocks and highly
migratory species, which, by definition, defy maritime boundaries – it is also
in these provisions where the ecosystem approach becomes slightly more
visible. Thus when ‘shared stocks’ of the same species occur in the exclusive
economic zones of the two or more coastal States, these States are called
upon “to agree upon the measures necessary to coordinate and ensure the
fisheries management: Theory and practice, 20 TIJMCL 2005, pp. 381-422. See also Dan Tar-
lock, Ecosystems, in Daniel Bodansky, Jutta Brunnée & Ellen Hey (eds.), The Oxford Hand-
book of International Environmental Law (Oxford 2007) pp. 574-596.
29
30
Article 62 paragraph 1 LOSC. On the technical background of such decisions see Re-
becca Metzner, Fishing aspirations and fishing capacity: Two key management issues, 20
TIJMCL 2005, pp. 459-478.
31
32
33
34
Article 297 paragraph 3 LOSC. See also Barnes, supra note 17, at pp. 245-246; Burke,
supra note 26, at p. 81.
conservation and development of such stocks” 35 . From a jurisdictional point

of view, this obligation of cooperation – which, incidentally, remains an ob-
ligation of conduct rather than an obligation of result: “shall seek to …” 36 –
remains a typical obligation of coordination, at best an exchange of jurisdic-
tional powers between neighbours.
Things start getting slightly more interesting in the obligation of coastal
States, which find in their exclusive economic zone “the same stock or
stocks of associated species” as that occurring “in an area beyond and adja-
cent to that zone” 37 . In such a case, both the coastal State and the States
“fishing for such stock in the adjacent area” are bound to seek to agree “ei-
ther directly or through appropriate subregional or regional organisations” 38
upon measures necessary for the conservation of these stocks not just in the
EEZ, a zone under exclusive coastal State jurisdiction, but also “in the adja-
cent area” 39 , presumable an area of the high seas. The same pattern is emphati-
cally reiterated in respect of highly migratory species, where the obligation
to cooperate
“directly or through appropriate international organisations with a view to en-
suring conservation and promoting the objective of maximum utilisation of
such species throughout the region, both within and beyond the exclusive eco-
nomic zone” 40
extends also to a duty of “the coastal State and other States whose nationals
harvest these species in the region” 41 not only to formally establish appropri-
ate international organisations where none exists but also to effectively “par-
ticipate in [their] work” 42 .
The extension of State jurisdiction to the high seas, either directly or as an
aggregate of communal action through an international organisation, consti-
tutes a new aspect of functional jurisdiction, another novelty of the Law of
35
Article 63 paragraph 1 LOSC. For a thorough discussion of such shared stocks see Robin
R. Churchill, The management of shared fish stocks: The neglected ‘other’ paragraph of arti-
cle 63 of the UN Convention on the Law of the Sea, in Anastasia Strati, Maria Gavouneli &
Nikos Skourtos (eds.), Unresolved issues and new challenges to the law of the sea (Martinus
Nijhoff, Leiden/Boston 2006) pp. 3-19.
36
Ibid. For the nature of the obligation see Moritaka Hayashi, The management of trans-
boundary fish stocks under the LOS Convention, 8 TIJMCL 1993, pp. 245-261, at p. 251; Tul-
lio Treves, Codification du droit international et pratique des États dans le droit de la mer, 223
RCADI 1990-IV, pp. 9-302, at p. 231.
37
38
Ibid.
39
Ibid.
40
Article 64 LOSC.
41
Ibid.
42
Ibid.
the Sea Convention. The risk of using such an obligation to jointly act as a
pretence for unilateral action was naturally immediately realised and testifies
to the incomplete nature of the relevant provision 43 . The example of Canada
is illustrative: The promulgation of the Coastal Fisheries Protection Act 44
was ostensibly caused by the dysfunction of the regional fisheries system,
the North Atlantic Fisheries Organisation, and gave rise to a fierce reaction
by third States, notably the European Community, triggering a turbot war 45 .
The situation almost got out of hand in 1995 with the arrest of the Estai, a
Spanish trawler, outside the Canadian EEZ. Litigation ensued before the In-
ternational Court of Justice 46 , before a settlement was reached in the 1995
Canada-European Community Agreed Minute on the Conservation and Man-
agement of Fish Stocks 47 .
The obligation of institutionally concerted action becomes even more cru-
cial in the high seas, where the individuality of each flag State reigns su-
preme and may easily nullify any attempt at conservation or even rational ex-
ploitation. Indeed, the exclusivity of coastal State jurisdiction in the EEZ, un-
doubtedly with its formidable enforcement powers included, has also pushed
the world fisheries both outwards and deeper: between 1992 and 2002 the
global marine fish capture in the high seas rose from 5% to 11% of the total
43
Thus also Treves, supra note 36, at p. 233; Peter G.G. Davies & Catherine Redgwell,
The international legal regulation of straddling fish stocks, BYBIL 1996, pp. 201-274, at pp.
240-241; Jean-François Pulvenis, Vers une emprise des états riverains sur la haute mer au titre
des grands migrateurs?, 35 AFDI 1989, pp. 774-806; Barbara Kwiatkowska, Creeping juris-
diction beyond 200 miles in the light of the 1982 Law of the Sea Convention and State prac-
tice, 22 ODIL 1991, pp. 153-187.
44
Coastal Fisheries Protection Act, RSC, ch. C-33 (1985), as amended by SC ch. 14 (1994),
33 ILM 1994, pp. 1383-1388, also available at <laws.justice.gc.ca>. For a general discussion,
both for and against see Michael Sean Sullivan, The case in international law for Canada’s ex-
tension of fisheries jurisdiction beyond 200 miles, 28 ODIL 1997, pp. 203-268; Paul Fauteux,
The Canadian legal initiative in high seas fishing, 4 YBIEL 1993, pp. 51-77; Laurent Lucchini,
La loi canadienne du 12 mai 1994 : la logique extrême de la théorie du droit préférentiel de
l’état côtier en haute mer au titre des stocks chevauchants, AFDI 1994, pp. 864-875.
45
See, instead of many others, Peter Davies, The EC/Canadian fisheries dispute in the
Northwest Atlantic, 44 ICLQ 1995, pp. 927-939; Christopher Joyner & Alejandro von Gust-
edt, The turbot war of 1995: Lessons for the law of the sea, 11 TIJMCL 1996, pp. 425-458;
David R. Teece, Global overfishing and the Spanish-Canadian turbot war: Can international
law protect the high-seas environment?, 8 Colorado JIELP 1997, pp. 89-125; Yann-Huei
Song, The Canada-European Union turbot dispute in the Northwest Atlantic: An application
of the incident approach, 28 ODIL 1997, pp. 269-311.
46
Fisheries Jurisdiction case, Spain v. Canada, ICJ 1995, available at <www.icj-cij.org>;
Louise de la Fayette, The Fisheries Jurisdiction case (Spain v. Canada), Judgment on jurisdic-
tion of 4 December 1998, 48 ICLQ 1999, pp. 664-672.
47
Agreed on 20 April 1995, 34 ILM 1995, pp. 1260-1278; see also C. Joyner, On the bor-
derline? Canadian activism on the Grand Banks, in Olav Schram Stokke (ed.), Governing
high seas fisheries: The interplay of global and regional regimes (Oxford 2001) pp. 207-234.
yield, with more than 30% of it constituting illegal, unreported and unregu-
lated (IUU) fishing 48 .
The purpose well defined, the practicalities of implementation remained
vague. There is nothing in addition to this announcement of jurisdiction to
substantiate the obligations accrued upon States in the high seas area. The
provisions relating to the conservation and management of the living re-
sources of the high seas follow the same pattern and do not offer much com-
fort, either: under article 118 of the Law of the Sea Convention, States
whose nationals engage in fishing in the high seas
“shall enter into negotiations with a view to taking the necessary measures for
the conservation of the living resources concerned” 49 ,
including the establishment of “subregional or regional fisheries organisa-
tions to this end” 50 . Although the eventual mandate of such organisations, as
part of appropriate State action, is again voluminously described in the frame-
work of the terms and conditions guiding conservation measures 51 , the ques-
48
Gjerde, supra note 16, at p. 284; E. Meltzer, Global overview of straddling and highly
migratory fish stocks: The non-sustainable nature of high seas fisheries, 25 ODIL 1994, pp.
255-328; Rachel Baird, Illegal, unreported and unregulated fishing: An analysis of the legal,
economic and historical factors relevant to its development and persistence, 5 Melbourne JIL
2004, pp. 299-334. The problem of IUU fisheries has caused a veritable avalanche of actions,
without evident success; among them the FAO International Plan of Action to prevent, deter
and eliminate illegal, unreported and unregulated fishing, adopted by consensus at the 24th
session of the FAO Committee on Fisheries on 2 March 2001 and endorsed by the 120th ses-
sion of the FAO Council on 23 June 2001, text available at <www.fao.org>; the High Seas
Task Force, created by certain States and NGOs in the context of the OECD Committee on
Fisheries: Final Report of the Ministerially-led Task Force on IUU fishing on the high seas,
Closing the net. Stopping illegal fishing in the high seas, March 2006, text available at
<www.high-seas.org>; or the Communication from the Commission on a Community Action
Plan for the eradication of IUU fishing, COM (2002) 180, 28 May 2002, as well as the 2006
Consultation Paper on the initiatives envisaged by the Commission to improve the fight of the
European Community against illegal, unreported and unregulated fishing, both texts available at
<www.europa.eu>; Carl-Christian Schmidt, Economic drivers of Illegal, Unreported and Un-
regulated (IUU) Fishing, 20 TIJMCL 2005, pp. 479-507; Diane Erceg, Deterring IUU fishing
through State control over nationals, 30 Marine Policy 2006, pp. 173-179; L. Griggs & G.
Lugten, Veil over the nets (unravelling corporate liability for IUU fishing offences), 31 Ma-
rine Policy 2007, pp. 159-168.
49
Article 118 LOSC.
50
Ibid. See also Rafael Casado Raigon, L’application des dispositions relatives à la pêche
en haute mer de la Convention des Nations Unies sur le doit de la mer, 8 Espaces et ressour-
ces maritimes 1994, pp. 210-219; Djamchid Momtaz, La conservation et la gestion des stocks
de poissons chevauchants et grands migrateurs, 7 Espaces et ressources maritimes 1993, pp.
47-61; Carl August Fleischer, The new régime of maritime fisheries, 209 RCADI 1988-II, pp.
99-222.
51
Article 119 LOSC. reads: “1. In determining the allowable catch and establishing other
conservation measures for the living resources of the high seas, States shall: (a) take measures
tion of enforcement seems to be totally absent. The only rule remains the ex-
ercise of a traditional flag State jurisdiction:
“All States have the duty to take, or to co-operate with other States in taking,
such measures for their respective nationals as may be necessary for the con-
servation of the living resources of the high seas” 52 .
The defects of flag State jurisdiction are well known – even regarding the
much more massive shipping industry. The suggestion that a lax flag State
machinery, unable and unwilling to properly police bulky ocean-going ves-
sels, would actually effectively control the actions of diverse fishing fleet
beggars belief. It becomes therefore clear that the jurisdictional novelty of
the Law of the Sea Convention would be – and indeed, has been – bypassed
by reality and time, unless complemented immediately with effective en-
forcement measures. By the time of the 1992 Rio UN Conference on Envi-
ronment and Development (UNCED), the necessity of coordinated action
was recognised and, indeed, reflected in chapter 17 of Agenda 21, where
paragraph 17.46 reproduces in part the relevant articles of the Law of the Sea
Convention and then adds a call upon States “to ensure effective monitoring
and enforcement with respect to fishing activities” 53 . Binding obligations of
this kind, however, can only be found in conventional texts, presumably
concluded with the primacy clause of article 311 of the Law of the Sea Con-
vention in mind, which further prohibits any subsequent agreements between
the parties not compatible with the Convention 54 .
2. INSTITUTIONAL APPROACHES TO JURISDICTIONAL CHALLENGES
A first attempt to further specify the rights and obligations of States re-
garding high seas fisheries was made in the context of the Food and Agricul-
which are designed, on the best scientific evidence available to the States concerned, to main-
tain or restore populations of harvested species at levels which can produce the maximum sus-
tainable yield, as qualified by relevant environmental and economic factors, including the
special requirements of developing States, and taking into account fishing patterns, the inter-
dependence of stocks and any generally recommended international minimum standards,
whether subregional, regional or global; (b) take into consideration the effects on species as-
sociated with or dependent upon harvested species with a view to maintaining or restoring
populations of such associated or dependent species above levels at which their reproduction
may become seriously threatened. …”.
52
Article 112 LOSC.
53
Text available at <habitat.igc.org/agenda21>.
54
Alan Boyle, Further development of the 1982 Convention on the Law of the Sea:
Mechanisms for change, 54 ICLQ 2005, pp. 563-584 = in Freestone, Barnes & Ong, supra
note 16, pp. 40-62.
ture Organisation (FAO), the competent organisation for fisheries purposes.

The Code of Conduct on Responsible Fisheries is, strictly speaking, a non-
binding document; however, the provisions of the Code reflect to a large ex-
tent the general principles of fisheries law and as such have acquired cus-
tomary law status. The essence of the Code is best captured in article 6 thereof,
which declares that
“the right to fish carries with it the obligation to do so in a responsible manner
so as to ensure effective conservation and management of the living aquatic re-
sources” 55 .
The Code is global in character, covering the whole fishing cycle and not
just high seas fisheries, and addressing obligations to individuals involved in
fisheries as well as States to apply a precautionary approach 56 and seek to
maintain biodiversity 57 on the basis of the ecosystem approach 58 ; all princi-
ples which do not readily appear in the Law of the Sea Convention and thus
already considered to have modified its fisheries provisions, as stated in the
Southern Bluefin Tuna cases 59 .
Naturally, the Code has limited enforcement powers: rather, it attempts to
further effective flag State control 60 , with the parallel enhancement of port
State jurisdiction 61 . The only truly binding part of the Code, forming a inte-
gral part of it in an interesting melange of hard and soft law provisions 62 , is
the 1993 FAO Agreement to Promote Compliance with Conservation Meas-
55
Article 6.1. of the Code of Conduct for Responsible Fisheries, adopted by consensus at
the 28th session of the FAO Conference on 31 October 1995; available at <www.fao.org>.
See in general W.R. Edeson, The Code of Conduct for Responsible Fisheries, 11 TIJMCL
1996, pp. 233-238; Gerald Moore, The Code of Conduct for Responsible Fisheries, in Ellen
Hey (ed.), Developments in international fisheries law (Kluwer, The Hague 1999) pp. 91-92.
56
Article 6.5. of the Code of Conduct for Responsible Fisheries, ibid.; see also Pierre-
Marie Dupuy, Le principe de précaution et le droit international de la mer, La mer et son droit.
Mélanges offertes à Laurent Lucchini et Jean-Pierre Quéneudec (Pedone, Paris 2003) pp.
205-220; David Freestone, International fisheries since Rio: The continued rise of the precau-
tionary principle, in Boyle & Freestone (eds.), supra note 4, pp. 140-165.
57
Article 6.6. of the Code of Conduct for Responsible Fisheries, supra note 55.
58
Article 6.2. of the Code of Conduct for Responsible Fisheries, ibid.
59
ITLOS, Southern Bluefin Tuna cases (nos. 3 & 4), New Zealand v. Japan; Australia v.
Japan, Provisional measures, 1999, paragraphs 77-79; Separate opinion of Judge Laing, para-
graphs 16-19; Separate opinion of Judge Treves, paragraph 9; Separate opinion of Judge
Shearer; all available in <www.itlos.org>;
60
Article 8.2. of the Code of Conduct of Responsible Fisheries, supra note 55.
61
Article 8.3. of the Code of Conduct of Responsible Fisheries, ibid.
62
See also W. Edeson, Soft and hard law aspects of fisheries issues, in Myron Nordquist,
J.N. Moore & Said Mahmoudi (eds.), The Stockholm Declaration and law of the marine envi-
ronment (Kluwer Law International, The Hague 2003) pp. 165-182; idem., William Edeson,
Sustainable use of marine living resources, 63 ZaöRV 2003, pp. 355-375.
ures in the High Seas 63 , whose main thrust remains the flag State duty to de-
ter reflagging of fishing vessels in order to avoid compliance with conserva-
tion measures 64 .
A much more effective tool for the management of high seas fisheries is
the 1995 UN Agreement for the Implementation of the provisions of the UN
Convention on the Law of the Sea of 10 December 1982 relating to the Con-
servation and Management of straddling fish stocks and highly migratory
fish stocks 65 , the first global agreement concentrating on high seas fisheries –
although the Agreement explicitly requires that the precautionary approach
will be universally applied 66 and, moreover, that
“conservation and management measures established for the high seas and
those adopted for areas under national jurisdiction shall be compatible in order
to ensure conservation and management of the straddling fish stocks and
highly migratory fish stocks in their entirety” 67 .
63
Approved by FAO Conference Resolution 15/93 on 24 November 1993 under Article
XIV of the FAO Constitution, 33 ILM 1994, pp. 968-980, also available at <www.fao.org>.
See in general Gerald Moore, The FAO Compliance Agreement, 10 TIJMCL 1995, pp. 412-
416; Patricia Birnie, New approaches to ensuring compliance at sea: The FAO Agreement to
promote compliance with international conservation and management measures by fishing
vessels on the high seas, 8 RECIEL 1999, pp. 48-55; D.A. Bolton, The Compliance Agree-
ment, in Hey (ed.), supra note 55, pp. 31-54.
64
Alexander Yankov, Reflagging of fishing vessels: Critical assessment of its impact on
the enforcement of fishing regulations and the responses thereto, in P. Ehlers, E. Mann-
Borgese & R. Wolfrum (eds.), Marine issues (Kluwer Law International, The Hague 2002) pp.
195-202; Patricia Birnie, Reflagging of fishing vessels in the high seas, 2 RECIEL 1993, pp.
270-276.
65
Opened for signature in New York on 4 December 1995, it entered into force on 11 De-
cember 2001; 34 ILM 1995, pp. 1542-1580, also available at <www.un.org>. For an overview
see Davies & Redgwell, supra note 43; Habib Gherari, L’accord du 4 août 1995 sue les stocks
chevauchants et les stocks de poissons grands migrateurs, 100 RGDIP 1996, pp. 367-390;
David A. Balton, Strengthening the law of the sea: The new Agreement on straddling stock
fish and highly migratory fish stocks, 27 ODIL 1996, pp. 125-151; Moritaka Hayashi, The
1995 Agreement on the conservation and management of straddling and highly migratory fish
stocks: Significance for the Law of the Sea Convention, 20 Ocean & Coastal Management
1995, pp. 51-69; David Freestone & Z. Makuch, The new international environmental law of
fisheries: The 1995 UN Straddling Stocks Convention, 7 YBIEL 1996, pp. 3-51; André Tahin-
dro, Conservation and management of transboundary fish stocks: Comments in light of the
adoption of the 1995 Agreement for the conservation and management of straddling fish
stocks and highly migratory fish stocks, 28 ODIL 1997, pp. 1-58.
66
Article 3 paragraph 1 and article 6 of the Agreement. See also in general Fernando Gon-
zález-Laxe, The precautionary principle in fisheries management, 29 Marine Policy 2005, pp.
495-505.
67
Article 7 paragraph 2 in conjunction with article 3 paragraph 1 of the Agreement. For the
compatibility discussion see David Freestone, The conservation of marine ecosystems under
international law, in D. Bowman & Catherine Redgwell, International law and the conserva-
tion of biological diversity (Martinus Nijhoff, 1996) pp. 91-107; David H. Anderson, The
The Agreement was created to amplify the duty to cooperate, as stipulated

in articles 63 paragraph 2, 63 and 117 of the Law of the Sea Convention. The
“shall seek to agree” language of the Law of the Sea Convention is now
transformed to a stricter “shall pursue cooperation” order, which further requires
“consultations in good faith and without delay, particularly when there is evi-
dence that the straddling fish stocks and highly migratory fish stocks con-
cerned may be under threat of over-exploitation or where a new fishery is be-
ing developed for such stocks” 68 .
Where there is no international organisation in place, coastal States and
States fishing in the high seas are obligated to create one 69 . Where there is
such an organisation in place
“States fishing for the stocks on the high seas and relevant coastal States shall
give effect to their duty to cooperate by becoming members of such organisa-
tion” 70
whereas third “States having a real interest in the fisheries concerned” are
invited to become members without further obstacles or discrimination exer-
cised against them 71 .
The enforcement of measures agreed upon by such institutional arrange-
ments is at the same time more intensive and less strict than the enforcement
provisions of the Law of the Sea Convention. As with the enforcement of
environmental protection regulations, default jurisdiction is again entrusted
to the flag State: the State authorities shall act expeditiously, by police and
judicial means, to ensure compliance by vessels flying its flag with measures
adopted by regional and subregional organisations 72 “irrespective of where
violations occur” 73 . Moreover, the applicable sanctions in respect of viola-
tions must
Straddling Stocks Agreement of 1995 – an initial assessment, 45 ICLQ 1996, pp. 463-475, at
pp. 468-470; Roger Jeannel, Le régime en haute mer de la pêche des espèces se trouvant aussi
dans une zone économique exclusive, 6 Espaces et ressources maritimes 1992, pp. 123-127;
A. Oude Elferink, The determination of compatible conservation and management measures
for straddling and highly migratory fish stocks, 5 Max Planck YBUNL 2001, pp. 551-607.
68
Article 8 paragraph 2 of the Agreement.
69
70
71
Ibid. Naturally, the determination of who is the ‘State having a real interest’ remains at
the discretion of the other States members to the international organisation; Erik Jaap Mole-
naar, The concept of ‘real interest’ and other aspects of cooperation through regional fisheries
management mechanisms, 15 TIJMCL 2000, pp. 475-531; Jean-Pierre Quéneudec, La notion
d’État intéressé en droit international, 255 RCADI 1995, pp. 343-461.
72
73
Article 19 paragraph 1(a) of the Agreement.
“be adequate in severity to be effective in securing compliance and to discour-

age violations wherever they occur and shall deprive offenders of the benefits
accruing from their illegal activities.” 74 .
In the same spirit, the coastal State may board and inspect in the high seas
any vessel for which “there are reasonable grounds for believing” that it has
been involved in unauthorised fishing within an area under the jurisdiction of
that coastal State with the consent of the flag State 75 ; cases of hot pursuit are
naturally excluded 76 . Indeed, in contrast to what happens with environmental
protection regulations under the Law of the Sea Convention, the coastal
State cannot prosecute the offending vessel; it can only request the flag State
to provide information on the progress and outcome of the relevant investi-
gations 77 , thus acquiring a droit de regard over the whole procedure.
The most innovative provisions of the 1995 Agreement refer to enforcement
against violations occurring in the high seas by means of well advertised 78
inspectors designated by any State party to a regional fisheries agreement,
who are authorised to board and inspect
“fishing vessels flying the flag of another State party to [the] Agreement,
whether or not such State party is also a member of the organisation” 79 .
Still, the inspectors cannot prosecute the offending ship themselves: the flag
State must be promptly notified of any such action 80 and must act within 3
days, either to investigate and take appropriate enforcement action or author-
ise the inspecting State to investigate 81 . In case of a serious violation, such as
fishing without a valid licence 82 , to which the flag State has failed to respond,
the inspectors may remain aboard to secure evidence and eventually lead the
74
75
76
Ibid.; Erik Molenaar, Multilateral hot pursuit and illegal fishing in the Southern Ocean:
The pursuits of the Viarsa 1 and of the South Tomi, 19 TIJMCL 2004, pp. 19-41; W.C. Gil-
more, Hot pursuit: The case of R. v. Mills, 44 ICLQ 1995, pp. 949-958. For the concept of hot
pursuit in general see Robert C.F. Reuland, The customary right of hot pursuit onto the high
seas: Annotations to article 111 of the Law of the Sea Convention, 33 Virginia JIL 1993, pp.
557-589.
77
78
According to article 20 paragraph 4 of the Agreement, “[T]he vessels used for boarding
and inspection shall be clearly marked and identifiable as being on government service”.
79
Article 21 paragraph 1 of the Agreement (my emphasis). See also Rudiger Wolfrum,
Means of ensuring compliance with and enforcement of international environmental law, 272
RCADI 1998, pp. 9-154, at p. 46; C. Joyner, Compliance and enforcement in new interna-
tional fishing law, 12 Temple ICLJ 1998, pp. 271-300.
80
Article 21 paragraph 4 of the Agreement, in fine.
81
82
For the definition of ‘serious violation’ see article 20 paragraph 11 of the Agreement.
vessel to the nearest appropriate port 83 ; but still they cannot prosecute: in-
deed, the flag State may at any point take over the case, requesting the re-
lease of the vessel along with the full file 84 .
As to what would happen, if the flag State keeps ignoring the inspecting
State’s calls to act, the Agreement remains silent 85 . It has been argued that
under such circumstances the inspecting State may yet prosecute; otherwise,
the whole system would grind to a halt 86 . In practice, the offending vessel
remains at the port of the inspecting State, subject to the prompt release pro-
cedure under 292 of the Law of the Sea Convention. Indeed, the Interna-
tional Tribunal on the Law of the Sea was severely criticised for not using
the prompt release mechanism in order to further enhance the effectiveness
of measures taken by the inspecting State authorities in application of fishing
regulations, as already both the Camouco case 87 and the Confurco case 88 re-
fer to fisheries issues 89 . Instead, dealing in the Volga case with circumstances
directly involving enforcement of fisheries conservation and management
measures, ITLOS preferred to adjudicate on the reasonableness of the bond
required for the release of the vessel and thus remain demurely within the
strict boundaries of the task entrusted to it 90 .
Nevertheless, the enforcement scheme of the 1995 Agreement is founded
on the pre-eminence of regional fisheries organisations (RFOs) rather than
83
84
85
See also infra, under 3.
86
Orrego Vicuña, supra note 25, at pp. 254-255; see also David H. Anderson, Investigation,
detention and release of foreign vessels under the UN Convention on the Law of the Sea and
other international agreements, 11 TIJMCL 1996, pp. 165-177; Raymond Goy, Le pêcheur de-
vant le juge pénal en droit international, in Giuseppe Cataldi (éd.), La Méditerranée et le droit
de la mer à l’aube du 21e siècle (Bruylant, Bruxelles 2002) pp. 113-130.
87
ITLOS, The Camouco case, Panama v. France, prompt release, 2000; available at
<www.itlos.org>; Bernard H. Oxman & Vincent Bantz, The ‘Camouco’ (Panama v. France)
(Judgment), 94 AJIL 2000, pp. 713-721.
88
ITLOS, The Confurco case, Seychelles v. France, prompt release, 2000; available at
<www.itlos.org>. See in general Christoph Schwarte, Environmental concerns in the adjudi-
cation of the International Tribunal for the Law of the Sea, 16 Georgetown IELR 2003-2004,
pp. 421-440.
89
Thus Barnes, supra note 17, at pp. 256-257.
90
ITLOS, The Volga case, Russian Federation v. Australia, 2002, available at <www.itlos.org>;
Donald R. Rothwell & Tim Stephens, Illegal southern ocean fishing and prompt release: Bal-
ancing coastal and flag State rights and interests, 53 ICLQ 2004, pp. 171-187; Chester Brown,
‘Reasonableness’ in the law of the sea: the prompt release of the Volga, 16 Leiden JIL 2003,
pp. 621-630; Philippe Weckel, Prompte mainlevée, Navire Volga (Fédération de Russie c.
Australie), 107 RGDIP 2003, pp. 182-188; Andrienne J. Oppenheim, The plight of the Pata-
gonian toothfish: Lessons from the Volga case, 30 Brooklyn JIL 2004, pp. 293-328.
flag-State jurisdiction 91 – or, alternatively but in a more traditional setting,

contractual arrangements between interested parties, such as the 1999 Bar-
ents Sea ‘Loophole’ Agreement 92 or even the highly controversial Galapagos
Agreement 93 , which gave rise to a two-pronged dispute before the Interna-
tional Tribunal for the Law of the Sea 94 and the World Trade Organisation
panels 95 . The contractual system clearly considers such institutional arrange-
ments a tool for the implementation of the Agreement; an understanding that
would also explain why enforcement is also possible against States not par-
ticipating in the regional organisations: State consent to be bound by the
Agreement suffices. Indeed, the central role of RFOs in providing enforce-
ment mechanisms is further reiterated in the direct obligation for all parties
to the Agreement not only to create such institutions but also to establish de-
91
Daniel Vignes, L’internationalisation des politiques de conservation en haute mer et le
rôle des commissions régionales de pêche, 1 ADM 1997, pp. 143-149; Giuseppe Cataldi, Le
Commissioni regionale di pesca, in Società italiana di diritto internazionale (SIDI), Il diritto
internazionale del mare. Fra usi antichi e nuove forme di utilizzazzione, VI Convegno: Pado-
va, Treviso, Venezia, 24-26 maggio 2001 (Editoriale scientifica, 2002) pp. 23-54. For the lat-
est in this interesting interplay see Tore Henriksen, Geir B. Hønneland & Are Sydnes, Law
and politics in ocean governance. The UN Fish Stocks Agreement and regional fisheries re-
gimes (Martinus Nijhoff, Leiden/Boston 2006).
92
Agreement between Iceland, Norway and Russia concerning certain aspects of coopera-
tion in the area of fisheries, done in St. Petersburg on 15 May 1999, available at <www.ocean
law.net>; Robin R. Churchill, The Barents Sea Loophole Agreement: A ‘coastal State’ solution to
a straddling stock problem, 14 TIJMCL 1999, pp. 467-490; Olav S. Stokke, The loophole of
the Barents Sea fisheries regime, in Stokke (ed.), supra note 47, pp. 273-301; idem., Manag-
ing fisheries in the Barents Sea loophole: Interplay with the UN Fish Stocks Agreement, 21
ODIL 2001, pp. 241-262. The back ground may be found in Thorir Gudmundsson, Cod war
on the high seas. Norwegian-Icelandic dispute over “Loophole” fishing in the Barents Sea, 64
Nordic JIL 1995, pp. 557-573.
93
The Framework Agreement for the Conservation of Living Marine Resources on the
High Seas of the South Pacific, concluded in 2000 among Chile, Peru and Ecuador, provided
for preferential rights for coastal States and was put on hold as a result of the negotiated truce
in the dispute between Chile and the European Community; for the text and recent develop-
ments see <www.spc.org.nc>; Rosemary Gail Rayfuse, Non-flag State enforcement in high
seas fisheries (Martinus Nijhoff, 2004) pp. 315-323; Boyle, supra note 54, at p. 578.
94
ITLOS, Case concerning the conservation and sustainable exploitation of swordfish
stocks in the South-Eastern Pacific Ocean, Chile v. European Community, 2000, cases sus-
pended in 2001; orders available at <www.itlos.org>; Marcos A. Orellana, The swordfish dis-
pute between the EU and Chile at the ITLOS and the WTO, 71 Nordic JIL 2002, pp. 55-81.
95
Chile – Measures affecting the transit and importation of swordfish, Request for the es-
tablishment of a panel by the European Communities, WT/DS193/2, 7 November 2000 (00-
4761); Chile – Measures affecting the transit and importation of swordfish, Agreement be-
tween the European Communities and Chile, Communication from the European Communi-
ties, WT/DS193/3, 6 April 2001 (01-1770) and WT/DS193.Add.1, 9 April 2001; both avail-
able at <www.wto.org>; Peter-Tobias Stoll & Silja Vönecky, The Swordfish case: law of the
sea v. trade, 62 ZaöRV 2002, pp. 21-35.
tailed boarding and inspection procedures, operating on the principle of non-

discrimination96 .
Failing that possibility for regional self-governance, the Agreement provides
for a fall-back system, detailed enough to become operational without fur-
ther ado 97 . In actual fact, the system outlined in article 22 of the Agreement
is heavily influenced by the workings of the North Atlantic Fisheries Organisa-
tion (NAFO)98 , the 1994 Bering Sea Agreement 99 and the most comprehen-
sive of all fishing arrangements, the Convention and the Committee for the
Conservation of Antarctic Marine Living Resources (CCAMLR) 100 , created
in the context of the Antarctic Treaty System 101 .
Operating in this environment, regional fisheries organisations have pro-
liferated, perhaps beyond any expectation, to cover the entire globe in a veri-
table jungle of acronyms. Some elements of this alphabet soup are more
well-known than others: among them the International Whaling Committee
96
97
Article 21 paragraph 21 paragraph 3 in conjunction with article 22 LOSC.
98
Created by the 1978 Convention on Future Multilateral Cooperation in the Northwest
Atlantic Fisheries; 1135 UNTS 369. For its operation see, instead of many others, Rayfuse,
supra note 93, pp. 224-259; Elli Louka, International Environmental Law. Fairness, effec-
tiveness and world order (Cambridge 2006) pp. 278-280.
99
Convention on the conservation and management of pollock resources in the Central
Bering Sea or the ‘Doughnut Hole’ Convention, adopted on 11 February 1994 and entered
into force on 8 December 1995; Rayfuse, supra, pp. 284-295; David A. Balton, The Bering
Sea Doughnut Hole Convention: Regional solution, global implications, in Stokke (ed.), su-
pra note 47, pp. 143-178; Stuart Kaye, Legal approaches to polar fisheries regimes: A com-
parative analysis of the Convention for the conservation of Antarctic marine living resources
and the Bering Sea Doughnut Hole Convention, 26 California Western LJ 1995, pp. 75-114.
100
The Convention was adopted on 20 May 1980 and entered into force on 7 April 1982;
text and the latest information available at <www.ccamlr.org>. For the best presentation of its
workings see, instead of many others, Rayfuse, supra note 93, pp. 259-294; idem., Enforce-
ment of high seas fisheries agreements: Observation and inspection under the Convention on
the Conservation of Antarctic Marine Living Resources, 13 TIJMCL 1998, pp. 579-605; Louka,
supra, pp. 283-286; Olav Schram Stokke, The effectiveness of CCAMLR, in Olav Schram
Stokke & Davor Vidas (eds.), Governing the Antarctic: The effectiveness and legitimacy of
the Antarctic Treaty System (Cambridge 1990) pp. 120-151; E.J. Molenaar, CCAMLR and
Southern Ocean Fisheries, 16 TIJMCL 2001, pp. 465-499; Denzil G.M. Miller, Eugene N.
Sabourenkov & David C. Ramm, Managing Antarctic living resources: The CCAMLR ap-
proach, 19 TIJMCL 2004, pp. 317-363. For an interesting aspect see Maria Giovanna Bozzetti,
Il ruolo della Comunità europea nell’attuazione della Convenzione per la conservazione della
flora e della fauna marina dell’Antaride (CCAMLR), 18 RGA 2003, pp. 621-642.
101
For the system see in general A. Watts, International law and the Antarctic Treaty Sys-
tem (Cambridge 1992); Davor Vidas, Emerging law of the sea issues in Antarctic Maritime
Area: A heritage for the new century? 31 ODIL 2000, pp. 197-222.
(IWC) 102 ; the Commission for the Conservation of Southern Bluefin Tuna
(CCSBT) 103 , the working of which were at the centre of a dispute settlement
extravaganza before the parties returned to the table of negotiations 104 ; the
General Fisheries Commission for the Mediterranean (GFCM) 105 ; or even the
recently created Caribbean Regional Fisheries Mechanism 106 . However – and
102
Established pursuant to the International Convention for the Regulation of Whaling,
done on 2 December 1946 and entered into force on 10 November 1948; 161 UNTS 72. For
the latest information on what constitutes a whole different universe see <www.iwcoffice.org>.
For an overview see, instead of many others, Patricia W. Birnie, Marine mammals: Exploiting
the ambiguities of article 65 of the Convention on the Law of the Sea and related provisions:
Practice under the International Convention for the Regulation of Whaling, in Freestone, Bar-
nes & Ong (eds.), supra note 16, pp. 261-280; Michael Heazle, Lessons in precaution: The In-
ternational Whaling Commission experience with precautionary management, 30 Marine Pol-
icy 2006, pp. 496-509.
103
Created by the 1993 Convention for the conservation of southern bluefin tuna; for the
text and latest information see <www.ccsbt.org>; Rayfuse, supra note 93, pp. 197-203;
104
ITLOS, Southern Bluefin Tuna cases, New Zealand v. Japan, Australia v. Japan, Provi-
sional measures, 1999, available at <www.itlos.org>; LOSC Annex VII Arbitral Tribunal,
Southern Bluefin Tuna cases, Australia v. Japan, New Zealand v. Japan, award of 4 August
2000, available at <www.intfish.net> and <www.worldbank.org/icsid>. See, among many
others, Robin R. Churchill, The Southern Bluefin Tuna cases (New Zealand v. Japan, Austra-
lia v. Japan): Order for Provisional Measures of 27 August 1999, 49 ICLQ 2000, pp. 979-990;
Alan Boyle, The Southern Bluefin Tuna arbitration, 50 ICLQ 2001, pp. 447-452; Barbara
Kwiatkowska, The Australia and New Zealand v. Japan Southern Bluefin Tuna (Jurisdiction
and Admissibility) award of the first LOSC Annex VII Arbitral Tribunal, 16 TIJMCL 2001,
pp. 239-294; Cesare Romano, The Southern Bluefin Tuna dispute: Hints or a world to
come … like or not, 32 ODIL 2001, pp. 313-348; David Freestone, Caution or precaution: “A
rose by any other name…”?, 10 YBIEL 1999, pp. 25-32; Raymond Goy, L’affaire du thon à
nageoire bleue, 14 Espaces et ressources maritimes 2001, pp. 47-74; Deborah Horowitz, South-
ern Bluefin Tuna case (Australia and New Zealand v. Japan) (Jurisdiction and admissibility).
The catch of Poseidon’s trident: The fate of high seas fisheries in the Southern Bluefin Tuna
case, 25 Melbourne ULR 2001, pp. 810-830; Mariko Kawano, L’affaire du thon à nageoire
bleue et les chevauchements de juridictions internationales, AFDI 2003, pp. 516-541.
105
Established under article XIV of the FAO Constitution by the Agreement and Rules of
Procedure of the General Fisheries Council for the Mediterranean approved by the FAO at its
fifth session in 1949; Rayfuse, supra note 93, pp. 192-197; Louka, supra note 98, pp. 282-283.
For an overview of the Mediterranean fisheries system see General Fisheries Commission for
the Mediterranean, Report of the thirtieth session, Istanbul, 24-27 January 2006 (FAO, Rome
2006); Larry Miranda, Research Guide to international and regional fisheries regulation of
the Mediterranean, 2000, available at <www.medasset.org>; Tullio Scovazzi, The enforce-
ment in the Mediterranean of United Nations resolutions on large-scale driftnet fishing, 2 Max
Planck YBUNL 1998, pp. 365-385.
106
Created by the 2002 Agreement establishing the Caribbean Regional Fisheries Mecha-
nism, which, albeit referring to the need to cooperate in order to protect straddling stocks, yet
it appears to cover only the exclusive economic zones of the member States; for the latest de-
velopments see <www.caricom.org>; Milton O. Haughton, Robin Mahon, Patrick McConney,
G. André Kong & Anthony Mills, Establishment of the Caribbean Regional Fisheries Mecha-
nism, 28 Marine Policy 2004, pp. 351-359.
in spite of the duty of member States to do so – not all regional organisations

have elaborated a comprehensive system of boarding and inspection proce-
dures. The example of the NAFO and the CCAMLR has been followed by
the Indian Ocean Tuna Commission (IOTC) 107 ; the Inter-American Tropical
Tuna Commission (IATTC) 108 , which had already experienced serious prob-
lems between the parties 109 ; the International Commission for the Conserva-
tion of Atlantic Tunas (ICCAT) 110 ; and the Western and Central Pacific Fish-
eries Committee (WCPFC) 111 and assorted arrangements in North-East
Asia 112 : they have all created often elaborate implementation mechanisms
based on the mutual transfer of enforcement jurisdiction between the parties
in areas comprising both the exclusive economic zones of the parties and
107
Created as the successor to the Indian Ocean Fishery Commission (IOFC) in 1996 pur-
suant to the 1993 Agreement for the establishment of the Indian Ocean Tuna Commission,
adopted by the FAO Council at its 150th session in November 1993 and entered into force on
17 March 1996; for the text and latest developments see <www.iotc.org>; Rayfuse, supra
note 93, pp. 182-192.
108
Created in 1950 by the Convention between the United States and Costa-Rica for the es-
tablishment of an Inter-American Tropical Tuna Commission, to which a number of other States,
including France and Spain, have also adhered; for latest developments see <www.iattc.org>;
Rayfuse, supra note 93, pp. 138-157.
109
The fisheries dispute between US and Mexico ended up before the adjudicatory organs
of the World Trade Organisation; James Joseph, The tuna/dolphin controversy in the Eastern
Pacific Ocean: Biological, economic and political impacts, 25 ODIL 1994, pp. 1-30; B.
Kingsbury, The tuna-dolphin controversy, the World Trade Organisation and the liberal pro-
ject to reconceptualise international law, 2 YBIEL 1994, pp. 1-40.
110
Created in 1969 pursuant to the International Convention for the conservation of Atlan-
tic tunas, signed on 14 May 1966 and entered into force on 21 March 1969; for the latest de-
velopments see <www.iccat.org>; Rayfuse, supra note 93, pp. 157-182; Louka, supra note 98,
pp. 281-282.
111
The Convention on the conservation and management of highly migratory fish stocks in
the Western and Central Pacific Ocean was signed on 5 September 2000 and entered into
force on 19 June 2004; for the text and latest information see <www.wcpfc.int>; Louka, supra
note 98, pp. 271-275; Violanda Botet, Filling in one of the last pieces of the ocean: Regulat-
ing tuna in the Western and Central Pacific Ocean, 41 Virginia JIL 2001, pp. 787-813; T.
Aqorau, Tuna fisheries management in the Western and Central Pacific Ocean: A critical
analysis of the Convention for the conservation and the management of highly migratory fish
stocks in the Western Central Pacific Ocean and its implications for the Pacific island States,
16 TIJMCL 2001, pp. 379-431. It adds to the regulatory regime created by the South Pacific
Forum Fisheries Agency Convention, which was signed at Honiara, the Salomon islands, on
10 July 1979 and entered into force on 9 August 1979 in the context of the South Pacific Fo-
rum Fisheries Agency; text and further information available at <www.ffa.int>; Louka, supra
note 98, pp. 271-273; William M. Sutherland, Management, conservation and cooperation in
EEZ fishing: The Law of the Sea Convention and the South Pacific Forum Fisheries Agency,
18 ODIL 1987, pp. 613-640.
112
Kim Sun Pyo, The UN Convention on the Law of the Sea and new fisheries agreements
in the North-East Asia, 27 Marine Policy 2003, pp. 97-109; Chiyuki Mizukami, The fisheries
policy of Japan under the new Law of the Sea, 8 Asian YBIL 1998/1999, pp. 59-76.
parts of the high seas. Such measures include the compilation of lists with
‘cooperating parties and entities’ 113 , positive ‘white’ lists of vessels author-
ised to fish in the RFO area 114 , negative ‘black’ lists of vessels found to be
undermining measures adopted by the RFO area 115 , catch documentation
schemes 116 , surveillance and information sharing 117 and measures calling for
control of nationals involved in non-member flag State operations 118 – or
combinations thereof 119 .
Among the latest additions to the group is the Committee on the Conserva-
tion and Management of Fisheries Resources in the South-East Atlantic
Ocean (SEAFO) 120 , which also covers non-migratory species in the high seas
113
See, for instance, the ICCAT Resolution 97-02 on Becoming a contracting party, entity
or fishing entity; or the CCSBT Resolution to establish the status of cooperating non-member
of the Extended Commission and the Extended Scientific Committee; as quoted by Rosemary
Rayfuse, Countermeasures and high seas fisheries, 51 NILR 2004, pp. 41-76 at p. 57.
114
Thus also ICCAT Recommendation 02-22 concerning the establishment of an ICCAT
Record of Vessels over 24 metres authorised to operate in the Convention Area; IATTC Reso-
lution C-03-07 on the establishment of a list of longline vessels over 24 metres authorised to
operate in the Eastern Pacific Ocean; IATTC Resolution on a Regional Vessel Register; IOTC
Resolution 02/05 concerning the establishment of a record of vessels over 24 metres author-
ised to operate in the IOTC Area; Rayfuse, supra.
115
See, among others, the CCAMLR Conservation Measure 10-06 (2002): Scheme to pro-
mote compliance by contracting party vessels with CCAMLR conservation measures; ICCAT
Recommendation 02-23 to establish a list of vessels presumed to have carried out illegal, un-
reported and unregulated fishing activities in the ICCAT Area; IOTC Resolution 02/04 on es-
tablishing a list of vessels presumed to have carried out illegal, unregulated and unreported
fishing; Rayfuse, supra note 112.
116
Among them the ICCAT bluefin, bigeye and swordfish statistical document pro-
grammes; the CCSBT southern bluefin tuna statistical document programme; the CCAMLR
toothfish catch documentation scheme; Rayfuse, supra note 112.
117
Among them the NEAFC Scheme to promote compliance by non-contracting party ves-
sels; the NAFO Joint Scheme of joint international inspection and surveillance; Rayfuse, su-
pra note 112.
118
See, for instance, CCAMLR Conservation Measure 118/XVI (1997): Scheme to pro-
mote compliance by non-contracting party vessels with CCAMLR conservation and manage-
ment measures; IATTC Resolution on fishing by vessels of non-contracting parties (2000);
Rayfuse, supra, note 112.
119
Transform Aqorau, Illegal fishing and fisheries law enforcement in small island devel-
oping States: The Pacific islands experience, 15 TIJMCL 2000, pp. 37-63. See also in general
the critique by Ted L. McDorman, Implementing existing tools: Turning words into actions –
Decision-making processes of Regional Fisheries Management Organisations (RFMOs), 20
TIJMCL 2005, pp. 423-457.
120
Created by the Convention on the conservation and management of the fisheries re-
sources of the South East Atlantic Ocean, adopted on 20 April 2001, 41 ILM 2002, pp. 257-
281; for the text and latest developments see <www.seafo.org>. See also A. Jackson, The
Convention on the conservation and management of fishery resources in the South East At-
lantic Ocean 2001: An introduction, 17 TIJMCL 2002, pp. 33-77; Louka, supra note 98, pp.
268-271.
and in that respect goes beyond the 1995 Agreement. Along the same lines
moves a recent initiative by Australia, Chile and New Zealand for the estab-
lishment of a South Pacific Regional Fisheries Management Organisation
(SPRFMO), which would cover only non-highly migratory species in the
high seas areas of the South Pacific Ocean 121 .
Thus a whole new chapter of fisheries law is already in place, often going
well beyond the confines of the 1995 Agreement and certainly the rudimen-
tary provisions of the Law of the Sea Convention. It is significant, however,
that even in this veritable deluge of institutional arrangements and regulation,
the general principles of the Law of the Sea Convention remain fully in place.
Indeed, the constitutive instruments for the new schemes always state the
Law of the Sea Convention as their frame of reference – and then merrily
proceed at best in progressive development thereof. The question necessarily
remains whether we would consider such lip-service as confirmation of the
compulsory nature of the rules enshrined in the Convention, understood at
least as a point of departure for further regulation; or, instead, as evidence of
an effective by-passing of the Convention in favour of more specific, region-
ally-centred and species-attuned regulatory systems. I tend to move towards
the first option, which presents the additional advantage of reconciling the
long-established principles of the law of the sea with the expanding and
evolving needs of fisheries preservation and management.
3. JURISDICTION WITHOUT CONSENT?
The essence of the Straddling Stocks Agreement lies in article 8 paragraph

4 thereof, which reads:
“Only those States which are members of such an organisation or participants
in such an arrangement, or which agrees to apply the conservation and man-
agement measures established by such organisation or arrangement, shall have
access to the fishery resources to which those measures apply”.
Thus the traditional freedom of fishing becomes qualified by the concerted
action of international institutions. All those non members to such arrange-
ments are therefore to abstain from fishing in waters where conservation and
management measures exist. Indeed, under article 33 of the 1995 Agreement
one can find a rare set of obligations addressed to the member States:
“ 1. States parties shall encourage non-parties to this Agreement to become
parties thereto and to adopt laws and regulations consistent with its provisions.
121
For the latest information see <www.southpacificrfmo.org>.
2. State parties shall take measures consistent with this Agreement and in-
ternational law to deter the activities of vessels flying the flag of non-parties
which undermine the effective implementation of this Agreement”.
To invite another member of the international community to participate in an
institutional arrangement is well understood. To effectively threaten a third
State with action unless it also joins the club is certainly not usual and would
easily become unsustainable in international relations. It thus becomes evi-
dent that this peculiar reference to the stick must be counterbalanced by a
carrot: none other than access to fisheries – which, however, were supposed
to be free in the first place…
There is nothing wrong in this line of reasoning for those States that have
already adhered to the 1995 Agreement or indeed a regional fisheries organi-
sation: they have submitted to a system of exchange of jurisdiction based on
the primacy of flag State jurisdiction, in the best traditions of the law of the
sea. What would happen, however, to third parties, who have not given their
consent to any conservation or management measures, have not accepted any
limitation to their customary freedom of fishing and do not intend to do so?
The customary rule, as codified in article 34 of the 1969 Vienna Convention
on the Law of Treaties 122 , remains: pacta tertiis nec nocent nec prosunt. A
praeter legem interpretation of the rules appears to be in order.
It can be argued that the 1995 Agreement constitutes a further elaboration
of the principles enunciated in the Law of the Sea Convention 123 . Cardinal
among them is the principle of cooperation, enshrined in articles 117 and
118 of the Law of the Sea Convention, which impose upon States the obliga-
tion to cooperate through regional organisations as a ‘natural corollary’ of
the duty to conserve a shared natural resource 124 . It is a fact that no conserva-
tion is possible in the high seas without the consent of all exploiting States to
promulgate and implement measures to regulate their exploitation of natural
resources. Consequently, the duty to cooperate in conservation qualifies the
right to freely fish in the high seas. Hence the exclusivity of access to fisher-
ies reserved for States member to regional organisations in article 8 para-
graph 4 of the 1995 Agreement and the corresponding obligation upon non-
member States to
122
1155 UNTS 18232, 8 ILM 1969, pp. 679-735; also available at <www.un.org>. For the
general theory see Christine Chinkin, Third parties in international law (Oxford 1993).
123
Orrego Vicuña, supra note 25, at pp. 288-289. See, however, the rebuttal offered by
Erik Franckx, Pacta tertiis and the Agreement for the implementation of the provisions of the
UN Convention on the Law of the Sea of 10 December 1982 relating to the conservation and
management of straddling fish stocks and highly migratory fish stocks, FAO Legal Papers
online #8, June 2000, at p. 13; also available at <www.fao.org>.
124
Rayfuse, supra note 112, at p. 54; Hey, supra note 27, at pp. 34-35.
“… not authorise vessels flying its flag to engage in fishing operations for the
straddling fish stocks or highly migratory fish stocks which are subject to the
conservation and management measures established by such organisation or
arrangement” 125 .
There is no reference in this formulation to a regional fisheries organisation
or arrangement to which the State is question is actually a member. The ob-
jective fact that third parties have concluded a conservation agreement suf-
fices to restrict the traditional freedom of fishing. The State in question is
obligated to join that RFO or arrangement, in application of its duty to coop-
erate, or else forfeit the right of its nationals to enjoy free access to the fish-
eries resources of the high seas 126 .
A more dogmatically correct approach would point out to the general con-
sensus that the 1995 Agreement is neither an implementation agreement to
the LOS Convention nor an amendment thereof 127 in spite of the mandate
given to the diplomatic conference that created it 128 and the result being cele-
brated as ‘a carefully crafted compromise’ 129 – it simply goes beyond the con-
fines of the Law of the Sea Convention and creates another legal universe,
naturally binding only upon those States parties to it 130 . Indeed, it is explicitly
125
Article 17 paragraph 2 of the 1995 Agreement.
126
Thus Rayfuse, supra note 112, at p. 54.
127
Franckx, supra note 123, at pp. 9-20; L. Lucchini & M. Voelckel, Droit de la mer (tome
2, vol. 2, Pedone, Paris 1996) at p. 690; W. Edeson, Towards long-term sustainable use: Some
recent developments in the legal regime of fisheries, in Boyle & Freestone (eds.), supra note 4,
pp. 165-204; P. Örebach, P. Sigurjohsson & T. McDorman, The 1995 UN Straddling and
Highly Migratory Fish Stocks Agreement: management, enforcement and dispute settlement,
13 TIJMCL 1998, pp. 119-141; Daniel Vignes, Le gommage des différences entre haute mer
et zone économique exclusive opéré par l’Accord du 4 décembre 1995 sur le stocks chevau-
chants et de grands migrateurs: vers l’assimilation de la haute mer à la zone de 200 milles et
la disparition de la liberté de la pêche en haute mer, 4 Revue de l’INDEMER 1996, pp. 93-120;
Freestone & Makuch, supra note 65, at p. 50; Laurence Juda, The 1995 UN Agreement on
Straddling Fish Stocks and Highly Migratory Fish Stocks: A critique, 28 ODIL 1997, pp. 147-
166; Hayashi, supra note 65, at pp. 65-66.
128
Charlotte DeFontaubert, The UN Conference on Straddling Fish Stocks and Highly Mi-
gratory Fish Stocks. Another step in the implementation of the Law of the Sea Convention, 12
Ocean YB 1996, pp. 82-91; Howard L. Brown, The UN Conference on Straddling Fish Stocks
and Highly Migratory Fish Stocks. An analysis of international environmental law and the
Conference’s final agreement, 21 Vermont LR 1996, pp. 547-589.
129
Thus José de Yturriaga Barberán, The international regime of fisheries: From UNCLOS
1982 to the presential sea (Martinus Nijhoff, The Hague 1997) at pp. 183-184; L. Lucchini,
Stocks chevauchants – grands migrateurs, in Najib Al-Nauimi & R. Meese (eds.), Interna-
tional legal issues arising under the United Nations Decade of International Law (Martinus
Nijhoff, The Hague 1995) pp. 513-548.
130
Thus Erik Franckx, Pacta tertiis and the Agreement for the implementation of the strad-
dling and highly migratory fish stocks provisions of the United Nations Convention on the
Law of the Sea, 8 Tulane JICL 2000, pp. 49-82; Boyle, supra note 54, at p. 570. For the expo-
so stated in article 1 paragraph 2(a) of the Agreement, which reproduces the

definition found in article 1 paragraph 2(2) of the Law of the Sea Convention
and in article 2 paragraph 1(g) of the 1969 Vienna Convention on the Law of
Treaties. States parties to the Law of the Sea Convention but not the 1995
Agreement 131 will continue to exercise only flag State jurisdiction upon their
vessels fishing in the high seas. Those (few) not parties to either convention
will continue to operate under the customary freedom of fishing rules in their
unadulterated form.
Legal niceties aside, the fact remains that most States today are cooperat-
ing in one fisheries arrangement or another, having in the process accepted
some manifestation of what amounts to a general obligation to conserve and
manage high seas fisheries in a sustainable manner. This qualification in it-
self is already considered as part of the customary law of fisheries, as ac-
cepted by the International Tribunal of the Law of the Sea in the South Blue-
fin Fin Tuna cases 132 . A strict application of the rule of consent would thus
become difficult to argue successfully. At the very least, it must be accepted
that State practice has already sufficiently amended the customary freedom
of fishing to reverse the burden of proof so that a State must now prove its
persistent objection to any cooperation in conservation measures to remain
untouched by the new rule 133 ; indeed, such a State must necessarily not be a
member of the Law of the Sea Convention, as any direct refusal to join a
fisheries conservation scheme would constitute a breach of obligation to co-
operate under articles 116 and 117 of the Convention.
What then would happen to a vessel flying the flag of a non-party State,
which is caught in the conservation area fishing in breach of what is at least
a obligation of the flag State to restrict the operation of its vessels, explicitly
stated in article 17 of the 1995 Agreement 134 ? If the flag State is a member to
sition of the principle see Malgosia Fitzmaurice, Modifications to the principles of consent in
relation to certain treaty obligations, 2 ARIEL 1997, pp. 275-317; see also in general idem.,
Consent to be bound – anything new under the sun?, 74 Nordic JIL 2005, pp. 483-508.
131
As of March 2007 there are 65 States parties to the 1995 Agreement as compared to 157
signatories and 153 ratifications for the Law of the Sea Convention; for details and recent de-
velopments see <www.un.org>.
132
ITLOS, Southern Bluefin Tuna cases, supra note 104, paragraphs 77-79; Separate opin-
ion of Judge Laing, paragraphs 16-19; Separate opinion of Judge Treves, paragraph 9; Sepa-
rate opinion of Judge Shearer; all available in <www.itlos.org>. See, in general, Marcos A.
Orellana, The law of highly migratory fish stocks: ITLOS jurisprudence in context, 34 Golden
Gate ULR 2004, pp. 459-495.
133
Thus Rayfuse, supra note 112, at p. 62.
134
Article 17 paragraph 2 of the 1995 Agreement reads: “[A State which is not a member
of a subregional or regional fisheries management organisation or is not a participant in a
subregional or regional fisheries management arrangement, and which does not otherwise
agree to apply the conservation and management measures established by such organisation
the 1995 Agreement or even the Law of the Sea Convention, then its duty to
cooperate in the conservation and management of marine resources, however
remote, is well established 135 . For the remainder, such an obligation may be
found in a customary law obligation to cooperate in the conservation of ma-
rine resources, admittedly formulated in a much more nebulous form and
without any particular management measures in mind. How then could the
States parties to such agreements reach to this rogue outsider, whose appear-
ance and operation in the protected waters threatens the effectiveness of the
conservation and management regime they have agreed upon?
It has been suggested that the breach undoubtedly committed by the flag
State either towards the world community at large regarding the customary
obligation to cooperate in conservation measures or towards States parties to
a Regional Fisheries Organisation, who have agreed upon specific manage-
ment measures, entitles the injured State to countermeasures, the latter defined
“not as a form of punishment for wrongful conduct but as an instrument for
achieving compliance with the obligations of the responsible State” 136 .
Such countermeasures, typically the boarding and arrest of a vessel found
fishing in protected waters, are indeed acceptable as they are taken against a
State which is responsible for an internationally wrongful act and are only
directed against such State 137 . Such measures must also be reversible 138 ,
“commensurate with the injury suffered, taking into account the gravity of the
internationally wrongful act and the rights in question” 139 ,
and not taken in response to the four categories of obligations of fundamen-
tal importance enumerated in article 50 of the Articles on State Responsibil-
ity, namely the obligation to refrain from the threat or use of force under the
or arrangement] shall not authorise vessels flying its flag to engage in fishing operations for
the straddling fish stocks or highly migratory fish stocks which are subject to the conservation
and management measures established by such organisation or arrangement”.
135
Article 17 paragraph 1 of the 1995 Agreement.
136
Commentary, paragraph (1), in James Crawford, The International Law Commission’s
Articles on State Responsibility. Introduction, text and commentaries (Cambridge 2002) at p.
284. For the general notion of countermeasures see Linos-Alexandre Sicilianos, La codifica-
tion des contre-mesures par la Commission du droit international, 38 RBDI 2005, pp. 447-500,
at pp. 450-459; David J. Bederman, Counterintuiting countermeasures, 96 AJIL 2002, pp.
817-832.
137
Thus article 49 paragraph 1 of the Articles on State Responsibility, approved by UN
General Assembly resolution 56/83, UN Doc. /RES/56/83 (2001); text also available at
<www.un.org>. See also Sicilianos, supra, pp. 463-465.
138
Ibid., pp. 465-468.
139
Article 51 of the Articles on State Responsibility; see also Enzo Cannizzaro, The role of
proportionality in the law of international countermeasures, 12 EJIL 2001, pp. 889-916.
UN Charter, obligations for the protection of fundamental human rights, ob-

ligations of a humanitarian character prohibiting reprisals and any other ob-
ligations arising under peremptory norms of international law 140 , thus
“allow[ing] for the recognition of further peremptory norms creating obliga-
tions which may not be subject of countermeasures by an injured State” 141 .
Under normal circumstances – and the particular facts of each case are
certainly a question of proof – , the boarding and control of a fishing vessel,
which may lead to its arrest, is in principle reversible, must be exercised in a
manner proportional to the gravity of the offence and certainly does not im-
plicate at least the last three of the categories of obligations exempt from the
application of countermeasures. Indeed, it could also be convincingly argued
that any use of force required for the arrest of the offending vessel does not
amount to a threat of the peace or an act of aggression 142 but rather consti-
tutes a police action 143 , perfectly within the sovereign prerogative of the in-
vestigating State. Such an understanding of the situation is reflected in State
practice and would actually be in full conformity with article 22 paragraph
1(f) of the 1995 Agreement, which requires inspecting States to
“avoid the use of force except when and to the degree necessary to ensure the
safety of the inspectors and where the inspectors are obstructed in the execu-
tion of their duties. The degree of force used shall not exceed that reasonable
required in the circumstances”.
On the other hand, it is also true that the exclusivity of the flag State juris-
diction in the high seas, including areas falling within the scope of applica-
tion of regional fisheries organisations or arrangements, may only yield ei-
ther to a rule of international law allowing such intervention upon the ship or
by the consent of the State concerned. Absent the circumstances allowing in-
tervention on a foreign-flagged vessel under article 110 of the Law of the
Sea Convention, the only other possible legal basis for interdiction remains
the consent of the flag State. Such consent to police action may indeed be
140
Article 50 of the Articles on State Responsibility; see also Sicilianos, supra note 136, at
pp. 468-471.
141
Commentary, supra note 136, at p. 290. For an overview of what constitutes a peremp-
tory norm see Lauri Hannikainen, Peremptory norms (ius cogens) in international law. His-
torical development, criteria, present status (Helsinki 1988); Alexander Orakhelashvili, Per-
emptory norms in international law (Oxford 2006).
142
The argument was actually raised by Spain in the Fisheries Jurisdiction case, Spain v.
Canada, ICJ Reports 1995, supra note 46, but the Court found it had no jurisdiction to hear
the case and thus the question remains. For the general principle see, instead of many others,
Bruno Simma (ed.), The Charter of the United Nations: A commentary (2nd ed., vol. 1, Ox-
ford 2002) at pp. 117 and 796.
143
Thus Rayfuse, supra note 112, at pp. 73-75.
found in multilateral and bilateral agreements on combating illicit traffic in

narcotic drugs 144 : it has been argued that in such cases intervention is to be
construed not as a non use of force but rather as a non prohibited use of
force by operation of the consent principle 145 .
Even if the possibility of countermeasures is assured, another issue is who
has the power to take such countermeasures. Both the general obligation to
cooperate on conservation and management measures for marine living re-
sources under the Law of the Sea Convention and the much more specific
obligations to abide by the technical terms and conditions imposed by re-
gional fisheries organisations are all obligations owned to a group of States.
It is conceivable therefore that the injury necessary to trigger the responsibil-
ity of the offending State is owed to all the parties to a regional fisheries or-
ganisation and indeed to all States member to the 1995 Agreement or even
member to the Law of the Sea Convention. The Commentary to the Articles
on State Responsibility uses the example of marine pollution to differentiate
between injury felt by the community as a whole and damage suffered by
particular States, where the impact of the wrongful act was particularly se-
vere:
“This will have to be assessed on a case by case basis, having regard to the ob-
ject and purpose of the primary obligation breached and the facts of each case.
For a State to be considered injured it must be affected by the breach in a away
which distinguishes it from the generality of other States to which the obliga-
tion is owed” 146 .
The difficulty lies in the fact that the injury suffered in the case of fisheries
cannot easily be said to have impacted one or another State; rather it has a
direct effect upon all the members of a regional organisation, perhaps not so
dramatic as to
144
Thus, for instance, the 1981 Agreement to facilitate the interdiction by the United States
of vessels of the United Kingdom suspected of trafficking in drugs, 1285 UNTS 197; or the
1990 Treaty between the Kingdom of Spain and the Italian Republic to combat illicit drug
trafficking at sea, 1776 UNTS 229. On the merits of ‘police action’ see Gert-Jan van Hegel-
son, Implementation of Caribbean maritime counter-narcotics cooperation report, in M.H.
Nordquist & J.N. Moore (eds.), Oceans policy: New institutions, challenges and opportunities
(Martinus Nijhoff, Dordrecht 1999) pp. 295-303; as compared to C.A. Allen, Limits on the
use of force in maritime operations in support of WMD counter-proliferation initiatives, 35
Israel YBHR 2005, pp. 115-180.
145
Thus, forcefully, Douglas Guilfoyle, Interdicting vessels to enhance the common inter-
est: maritime countermeasures and the use of force, 56 ICLQ 2007, pp. 69-82, at p. 81.
146
Crawford, supra note 136, at p. 259. See also Linos-Alexandre Sicilianos, The classifi-
cation of obligations and the multilateral dimension of he relations of international responsi-
bility, 13 EJIL 2002, pp. 1127-1145.
“radically change the position of all the other States to which the obligation is
owed with respect to the further performance of the obligation” 147
but certainly important enough to consider themselves
“injured by the same internationally wrongful act” 148 .
Thus each one of the States member to a regional fisheries organisation or
arrangement
“may separately invoke the responsibility of the State which has committed the
internationally wrongful act” 149
and, consequently, each one of those States may take countermeasures against
the State which is responsible for that internationally wrongful act. If, how-
ever, one of the member States feels that the breach was so remote as to have
only a limited impact upon it and the injury thus suffered was of a more gen-
eral interest, presumably referring to a question of principle, too close for
comfort to an (inexistent in international law) actio popularis 150 , rather than
an actual injury inflicted upon the State’s fishing rights in that particular area,
then that State remains entitled to invoke the responsibility of the offending
State and take such ‘lawful measures’ against the responsible State so as
“to ensure cessation of the breach and reparation in the interest of the injured
State or of the beneficiaries of the obligation breached.” 151 .
Would those ‘lawful measures’ be different than ‘countermeasures’ in cases
of a breach of conservation measures in regional fisheries protected area?
The assumption is clear in theory: there must be a difference in practice in
the intensity of measures taken by those States ‘directly affected’ and those
who may have a general interest in seeing the fisheries management system
147
Article 42(a)(ii) of the Articles on State Responsibility.
148
Article 46 of the Articles on State Responsibility.
149
Ibid.
150
Barcelona Traction, Light and Power Company, Limited, Second Phase, Belgium v.
Spain, ICJ Reports 1970, paragraph 33, available at <www.icj-cij.org>. See in general Fran-
çois Voeffray, L’actio popularis ou la défense de l’intérêt collectif devant les juridictions in-
ternationales (PUF, Paris 2004).
151
Article 54 of the Articles on State Responsibility. For third-party reactions in general
see M. Akehurst, Reprisals by third States, 44 BYBIL 1970, 1-18; J.I. Charney, Third State
remedies in international law, 10 Michigan JIL 1988, p. 57-101; L.-A. Sicilianos, Les réac-
tions décentralisées à l’illicite (LDGJ, Paris 1990) at pp. 110-175; J.A. Frowein, Reactions by
not directly affected States to breaches of public international law, 248 RCADI 1994-IV, pp.
345-437; Bruno Simma, From bilateralism to community interest in international law, 250
RCADI 1994-VI, pp. 217-384.
work 152 . Would that translate into a dichotomy of reactions where the ‘di-
rectly affected’ State may actually board and arrest an offending vessel
whereas a third State would only take other measures, such as prohibiting the
landing of fish caught in breach of such arrangements in its ports or such
other economic sanction? The jury is still out, in spite of the ever expanding
practice in the fisheries law area. Either way, it is clear that such action re-
mains at all times an individual act rather than a collective measure decided
by the organisation as a whole 153 . Indeed, actions taken by an international
fisheries organisation,
“even though the member States may direct or control its conduct” 154 ,
remain outside the concept of countermeasures to be addressed as a new title
under the collective security system 155 .
Moreover, any action undertaken as a countermeasure requires a prior call
to the offending State to fulfil its obligations, a notification of the act to be
taken as a countermeasure and an offer to negotiate on the matter 156 ; indeed,
the customary nature of these requirements has been affirmed by both the In-
ternational Court of Justice 157 and State practice. Given the fluid nature of
fisheries enforcement, one could have some difficulty with a request for ne-
gotiation each and every time a vessel is caught fishing where it should not
152
Sicilianos, supra note 145, at pp. 1139-1140; Pierre-Marie Dupuy, Quarante ans de codifi-
cation du droit de la responsabilité internationale des États. Un bilan, RGDIP 2003, pp. 305-348,
at pp. 337-340; Christian J. Tams, Enforcing obligations erga omnes in international law
(Cambridge 2005) at pp. 209-228.
153
For an earlier discussion of sanctions in this respect see David D. Caron, International
sanctions, ocean management and the law of the sea: A study of denial of access to fisheries,
16 Ecology LQ 1989, pp. 311-354.
154
Crawford, supra note 136, at p. 302; see also Sicilianos, supra note 136, pp. 483-498.
On the relationship between the responsibility of the State and the responsibility of the inter-
national organisation see articles 13, 25 and 26 of the Draft Articles on the Responsibility of
International Organisations, provisionally adopted by the International Law Commission
(Giorgio Gaja, rapporteur); ILC, Report on the work of its 58th session (2006), General As-
sembly Official Records, Sixty-first session, Supplement No. 10, UN Doc. A/61/10; available
at <www.un.org>.
155
Kofi Annan, A more secure world. Our shared responsibility: Report of the High-level
Panel on threats, challenges and change. Towards development, security and human rights
for all (UN, New York 2005); see also Laura Forlati & L.-A. Sicilianos, Les sanctions éco-
nomiques en droit international (Académie de droit international de La Haye, Martinus Ni-
jhoff, Leiden/Boston 2004).
156
Article 52 paragraph 1 of the Articles on State Responsibility.
157
Gabcikovo-Nagymaros project, Hungary v. Slovakia, ICJ Reports 1997, paragraph 84,
available at <www.icj-cij.org>; see also the arbitral award on the Air Services Agreement of
27 March 1946, United States v. France, 18 UNRIAA 1978, pp. 417-453, at p. 444, paragraphs
85-87.
have been. However, the notification of action and call for negotiations is ac-
tually incorporated into the 1995 Agreement, which enunciates very clearly
the threat to take action against offending vessels 158 and repeatedly calls upon
non-parties to become members or negotiate arrangements of equivalent ef-
fect 159 . Indeed, the discussion of possible reactions to fishing activity by non-
members was a major issue in the 2006 Review Conference on the 1995
Agreement 160 , the Outcome of which called upon States to:
“commit themselves to providing incentives, where needed, to encourage non-
members to join the regional fisheries management organisations, including
sharing technology and expertise, assistance in the development of appropriate
frameworks and enhancement of enforcement capabilities. Non-members shall
enjoy benefits from participation in the fishery commensurate with their com-
mitment to comply with conservation and management measures in respect of
the stocks.” 161 .
Is this injunction to act in accordance with what amounts to a new fisher-
ies regime, presumably also in compliance with the Law of the Sea Conven-
tion as clearly indicated in the title of the 1995 Agreement, an acknowledge-
ment of the change already incurred or rather an instigation to act in a certain
way, in view – and perhaps even, in spite – of the lack of any binding obliga-
tion to do so? It is certainly a question that remains at the forefront of fisher-
ies regulation.
4. FROM FREEDOM TO FISH TO A RIGHT OF ACCESS?
From afar, the system of fisheries regulation looks well developed and
comprehensive. The Law of the Sea Convention reiterates the traditional
158
See in particular article 21 paragraph 4 of the 1995 Agreement.
159
Article 33 of the 1995 Agreement.
160
Convened in New York on 22-26 May 2006, pursuant to article 36 of the 1995 Agree-
ment, which requires a review conference four years after its entry into force; full information
available at <www.un.org>. For a first reaction to the workings of the Conference see Yoshi-
nobu Takei, Unfinished business: Review Conference on the 1995 Fish Stocks Agreement, 21
TIJMCL 2006, pp. 551-568; to be compared with the suggestions by Michael W. Lodge &
Satya N. Nandan, Some suggestions towards better implementation of the UN Agreement on
straddling fish stocks and highly migratory fish stocks of 1995, 20 TIJMCL 2005, pp. 345-379;
Erik Jaap Molenaar, Addressing regulatory gaps in high seas fisheries, ibid, pp. 533-570.
161
Report of the Review Conference on the Agreement for the Implementation of the Provi-
sions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating
to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish
Stocks prepared by the President of the Conference, UN Doc. A/CONF.210/2006/15, 5 July
2006, Annex, paragraph 32(e), available at <www.un.org>; my emphasis.
freedom of fishing in the high seas but it already creates obligations of coop-
eration between coastal States and ‘interested’ States fishing for straddling
fish stocks and highly migratory fish stocks in areas “beyond and adjacent to
the zone[s]” 162 under coastal State jurisdiction. This obligation of cooperation
is further substantiated in the 1995 Agreement, which, on the one hand,
raises it to an indispensable condition for granting access to fisheries 163 and,
on the other hand, creates an even more specific obligation to establish re-
gional fisheries organisations and arrangements in order to agree on specific
measures of conservation and management fully attuned to the circum-
stances of each area and the species to be found therein and abide by such
measures 164 .
This cascade of obligations, from the general to the very specific, clearly
modifies the traditional rule of freedom to fish in the high seas. Indeed, the
system looks so tidy – and the objectives of sustainable exploitation of fish-
eries and assorted environmental concerns so worthy – as to create the im-
pression that adequate protections are indeed in place and the international
community must be happy with the result.
Yet, fisheries around the world continue to decline, often dramatically. A
closer look reveals that adherence to what one could consider as ‘universal’
regimes is in fact rather patchy and implementation is almost always defi-
cient. The manifold contractual arrangements in existence seem to vie for at-
tention, often promulgating contradicting regulations, which leave major
loopholes in the prescriptive legal framework of fishing or, at best, subvert
each other’s effectiveness. New suggestions for the parallel application of
old and new, specific and general conventions add to the mêlée: the recent
involvement of the Convention on International Trade in Endangered Spe-
cies of Wild Fauna and Flora (CITES) 165 in matters pertaining to the man-
162
Articles 63 paragraph 2 and 64 paragraph 2 LOSC.
163
164
165
993 UNTS 243; concluded on 3 March 1973, it entered into force on 1 July 1975. For
an overview see in general Willem Wijnsteckers, The evolution of CITES: A reference to the
Convention on international trade in endangered species (8th ed., CITES Secretariat, Geneva
2006); David M. Ong, The Convention on International Trade in Endangered Species (CITES
1973): Implications of recent developments in international and EC environmental law, 10
JEL 1998, pp. 291-314; Jess Hemings, Does CITES conserve biodiversity?, 7 Asia Pacific
JEL 2002, pp. 95-124; Rosalind Reeve, Enhancing the international regime for protecting en-
dangered species. The example of CITES, 63 ZaöRV 2003, pp. 333-354; Saskia Young, Con-
temporary issues of the Convention on international trade in endangered species of wild fauna
and flora (CITES) and the debate over sustainable use, 14 Colorado JIELP 2003, pp. 167-189.
agement of commercially exploitable aquatic species illustrates the point 166 .

The ensuing uncertainty as to the content of the law and insecurity as to its
proper implementation remains a far cry from the neat cascade described
above.
At the end of the day, the international system remains securely founded
on the State as a legislating and policing unit and ultimately on the consent
of the State before expected or desirable practice translates into binding law.
The need for a specific expression of consent before the commonly agreed
rules are amended is indeed reflected in the cascading instruments, which
encompass an interesting mixture of the carrot and the stick.
Nevertheless, this interplay between persuasion and coercion cannot fully
cover the very real problems created by the non-participation of certain
States to these contractual arrangements 167 . In spite of the wealth of persua-
sive arguments by academics and practitioners, the fact of the matter remains
that contractual obligations may only be amended by another treaty or a sub-
sequent customary rule – and the creation of this new customary rule must
necessarily fulfil the very strict criteria for the formation of international cus-
tom 168 . Indeed, commenting on the existing gap between the learned opinions
of scholars or the wishful thinking of environmentally minded citizens, the
International Court of Justice noted in the Nicaragua case:
“The mere fact that States declare their recognition of certain rules is not suffi-
cient … to consider these as being part of customary international law, and as
applicable as such to those States. Bound as it is by Article 38 of its Statute to
apply, inter alia, international custom ‘as evidence of a general principle ac-
cepted as law’, the Court may not disregard the essential role played by gen-
eral practice. Where two States agree to incorporate a particular rule in a treaty,
their agreement suffices to make that rule a legal one, binding upon them; but
166
See in more detail Erik Franckx, The protection of biodiversity and fisheries manage-
ment: Issues raised by the relationship between CITES and LOSC, in Freestone, Barnes &
Ong (eds.) supra note 16, pp. 210-232; Rosie Cooney, CITES and the CBD: Tensions and
synergies, 10 RECIEL 2001, pp. 259-267. See also on the relationship between CCAMLR and
CITES, D. Bialek, Sink or swim: Measures under international law for the conservation of
Patagonian Toothfish in the Southern Ocean, 34 ODIL 2003, pp. 105-137; Rosemary Rayfuse,
Biological resources, in Bodansky, Brunnée & Hey (eds.), supra note 28, pp. 362-393, at p.
391.
167
Thus also Daniel Bodansky, Customary (and not so customary) international environ-
mental law, 3 Indiana Journal of Global Legal Studies 1995, pp. 105-131; Pierre-Marie Du-
puy, Formation of customary international law and general principles, in Bodansky, Brunnée
& Hey (eds.), supra note 28, pp. 449-466.
168
For an overview see M. Akehurst, Custom as a source of international law, 47 BYBIL
1974-1975, pp. 1-54; Maurice H. Mendelson, The formation of customary international law,
272 RCADI 1998, pp. 155-410; Malgosia Fitzmaurice, International protection of the envi-
ronment, 293 RCADI 2001, pp. 9-488, at pp. 105-116.
in the field of customary international law, the shared view of the parties as to
the content of what they regard as the rule is not enough. The Court must sat-
isfy itself that the existence of the rule in the opinio iuris of States is confirmed
by the practice” 169 .
And yet, one wonders whether the existing State practice in fisheries regu-
lations is not in fact a breach of what constitutes secure contractual obliga-
tions for those States party to a regional fisheries organisation, the 1995
Agreement, the Law of the Sea Convention, or any combination thereof. On
the other hand, the insistence displayed on the benefits of participation to re-
gional fisheries arrangements may well point to a customary confirmation of
a pro-active obligation to cooperate rather than constitute evidence of any
real will on behalf of interested States to consent to the creation of an emerg-
ing customary rule of exclusion, regulating access to fisheries. In the words
of the Court, once again:
“The Court does not consider that, for a rule to be established as customary,
the corresponding practice must be in absolutely rigorous conformity with the
rule. In order to deduce the existence of customary rules, the Court deems suf-
ficient that the conduct of States should, in general, be consistent with such
rules, and that instances of State conduct inconsistent with a given rule should
generally have been treated as breaches of that rule, not as indication of the
recognition of a new rule.” 170 .
The overwhelming acceptance of the principles underlying fisheries juris-
diction, in all their complexity, rather point to this direction. For all their in-
tensity, the repeated calls for cooperation constitute, at the end of the day,
just an acknowledgment of the contractual limitations of the existing legal
framework. Nevertheless, such limitations still allow for a new, more pur-
pose-intensive reading of existing obligations for all interested parties, with a
view to promote and enhance the effective implementation of the spirit – and
not only of the letter – of the relevant conventions. In such a context, the
original allocation of flag State jurisdiction under the Law of the Sea Con-
vention remains intact as the contractual structure of the Convention has
shown to have managed to successfully absorb and accommodate the devel-
oping regulatory framework of fisheries protection.
169
Case concerning military and paramilitary activities in and against Nicaragua, Nicara-
gua v. USA, Merits, ICJ 1986, paragraph 184, also available at <www.icj.cij.org>.
170
Ibid., paragraph 186.
PART III
CHALLENGES TO THE ALLOCATION OF JURISDICTION
The challenges to the jurisdictional zones in the sea, as stipulated in the Law
of the Sea Convention, have demonstrated the resilience of the conventional
structure – and have indeed shown themselves to be variations to the rule.
The practice of States indicates that the propensity of the coastal State to ex-
pand the jurisdiction it is allotted in the exclusive economic zone has been
contained within the concept of a marine protected area, usually but –
essentially– not solely under the exclusive jurisdiction of that coastal State,
where the freedoms of the high seas and especially the freedom of naviga-
tion are indeed severely restricted with a view to safeguard considerations of
environmental protection. There is no question that the establishment of such
areas, in application of the principle rather than the actual letter of the Law
of the Sea Convention, entails a new, delicate balance of interests between
the ‘green’ aspirations of the coastal State, mostly translated to pollution
damage (and the cost thereof), and the liberal-minded exertions of flag
States, mostly concerned with the financial bottom-line of maritime trade.
In a similar manner, the challenges to the flag State jurisdiction in cases of
fisheries protection have also been contained by the conventional structure –
but this time by modifying, perceptively, the Convention itself. It is true that
the Law of the Sea Convention provides for an informal system of amend-
ment and development through the conclusion of subsequent treaties not
“incompatible with the effective execution of the object and purpose of [the]
Convention … provided further that such agreements shall not affect the appli-
cation of the basic principles embodied therein…” 1 .
This is clearly the function of the 1995 Agreement for the implementation of
the provisions of the UN Convention on the Law of the Sea of 10 December
1982 relating to the conservation and management of straddling fish stocks
and highly migratory fish stocks, which is in the process of essentially con-
verting the traditional freedom to fish to a right of access to fisheries condi-
1
Article 311 paragraph 3 LOSC. See also Alan Boyle, Further development of he Law of
the Sea Convention: Mechanisms for change, 54 ICLQ 2005, pp. 563-584.
tional upon the adoption of coordinated measures of fisheries conservation

and management.
The question remains whether this built-in flexibility of the system would
also extend to circumstances clearly not foreseen by the framers of the Con-
vention and thus not taken into consideration when setting out the outer lim-
its of its regulatory framework.
Under Part III, I intend to discuss challenges to the Law of the Sea Con-
vention, which were only suspected at the time of drafting – progressive de-
velopment of the rules. In Chapter 5, I will discuss the extension of coastal
State jurisdiction into the high seas and especially the deep seabed beyond
the areas of national jurisdiction. The Law of the Sea Convention has created
organs competent to consider such an expansion, the Commission for the
Outer Limits of the Continental Shelf and the International Seabed Author-
ity. Are we looking towards a new allocation of State jurisdiction in the deep
seas, a jurisdiction, however, different in content from the traditional form of
exclusive and plenary powers over a defined territory?
In Chapter 6, I will concentrate on challenges to that most traditional form
of jurisdiction, flag State jurisdiction. In the wake of repeated terrorist at-
tacks, the venerable principle of the freedom of the seas is restricted by con-
tractual arrangements, such as the new 2005 protocol to the SUA Conven-
tion or even the PSI initiative of the US Government. Are we witnessing the
creation of a new system of maritime traffic on the basis of a possible prin-
ciple of protection or is it still, underneath it all, the same freedom of the
seas freely disposed of by its beneficiary, the flag State?
CHAPTER 5
JURISDICTION IN THE DEEP SEA
The novelties of the Law of the Sea Convention have been so easily and al-
most instantly assimilated in the traditional formulation of the Law of the
Sea that it is perhaps forgotten how close the Conference came to founder in
the 1980s – before the 1994 Agreement relating to the implementation of
Part XI of the UN Convention on the Law of the Sea of 10 December 1982 1
managed to ‘implement’ the Convention without formally amending it 2 . The
bone of contention was the exploitation regime for the deep seabed, the new-
found marine area which the Convention took away from State jurisdiction.
The word was at the time that untold riches awaited humankind in the deep
black yonder 3 – and the international community cracked at the seams in the
effort to contain this new gold rush in the seas.
Several decades later we know that the prospect of sea wealth was illusory
– at least in the form contemplated by the framers of the Law of the Sea
Convention. Instead, we are confronted with new challenges, brought along
by the latest developments in technology, which have further expanded, and
indeed changed, our knowledge and view of the planet. To date, we have
discovered at least two benthic ecosystems operating on energy sources
other than light: sediment communities and seep communities, which in-
1
33 ILM 1994, pp. 1309-1327. The Agreement was adopted on 28 July 1994 and entered
into force on 28 July 1996, having been approved by UN General Assembly Resolution
48/263 on 17 August 1994, UN Doc. A/RES/48/263/Annex; text available at <www.un.org>.
2
For discussions on the subject then and now see D.H. Anderson, Further efforts to ensure
universal participation in the UNCLOS, 43 ICLQ 1994, pp. 886-893; idem., Resolution and
Agreement to the Implementation of Part XI of the UN Convention on the Law of the Sea. A
general assessment, 55 ZaöRV 1995, pp. 275-289; Jonathan Charney, Entry into force of the
1982 UNCLOS, 35 Virginia JIL 1995, pp. 381-404; Laurent Lucchini, La Convention des Na-
tions Unies sur le droit de la mer du 10 décembre 1982 : Une entrée en vigueur pour quelle
Convention?, 7 Espaces et ressources maritimes 1993, pp. 1-9; Alan Boyle, Further develop-
ment of the 1982 Convention on the Law of the Sea: Mechanisms for change, in David Free-
stone, Richard Barnes & David Ong (eds.), The Law of the Sea. Progress and prospects (Ox-
ford 2006) pp. 40-62, at p. 42, fn. 14.
3
For the estimates of the time see G. Weissberg, International law meets the short-term na-
tional interest: The Maltese proposal on the seabed and ocean floor – Its fate in two cities, 18
ICLQ 1969, pp. 41-102, at p. 52.
clude hydrothermal vents, petroleum seeps and sediment-pore water seeps.

In the past decade we came to realise the immense wealth of biological di-
versity to be found in hydrothermal vents 4 , comprised of species adapted to
the particular sulphur-rich environment of these chimneys in the sea and sus-
tained on chemosynthetic microbial processes rather than photosynthesis 5 .
Indeed, of the approximately 500 species discovered around hydrothermal
vents to date, some 80-95% are considered endemic to that particular envi-
ronment and new to science 6 . These data, further enriched by continued
spectacular developments, have opened unsuspected horizons to pharmacol-
ogy, biotechnology and molecular biology, where microbes superthermo-
philic (thriving in temperatures over 115oC), hyperthermophilic (thriving in
temperatures between 80-115oC) and thermophilic (thriving in a mere 50-
80oC environment) are apparently of immense usefulness in procuring new
industrial processes and eventually generate new products for the benefit of
humankind 7 . As of 2005, approximately 20 marine natural products were
undergoing human clinical trials whereas at least 37 patents have been issued
for products based on deep-sea organisms 8 .
This newly-found wealth makes the discovery of possible hydrothermal
sites an element of acute importance. More than 100 hydrothermal vent sites
have been identified to date and more continue to appear, especially around
Antarctica. The most well-known sites are located in the East Pacific Rise
and the Juan de Fuca, Gorda and Explorer Ridges; in the mid-Atlantic Ridge;
in the Gakkel Ridge, which runs under the Arctic Ocean from north of Green-
land to Siberia; and in the north waters of New Zealand’s exclusive economic
zone 9 , thus presenting diverse issues of jurisdictional competence. Benthic
4
Apparently these structures come mostly in two forms: columnar chimney black smokers,
which ventilate sulphide- and oxide-rich dense and cold seawater, recycled through fissures in
the upper portions of the lithosphere by the magma lying at a depth of 1,6 to 2,4 kilometres
below the sea floor in a buoyant column of fluid reaching as high as 350oC without boiling
because of the intense pressure on the deep seabed; or freestanding complex sulphite mounds
10-30 metres in diameter and up to more than 40 metres in height; with grateful thanks for the
technical description and all scientific information to David Kenneth Leary, International
Law and the genetic resources of the deep sea (Martinus Nijhoff, Leiden/Boston 2007) at pp.
10-11.
5
Ibid., at p. 16.
6
Ibid., at p. 15.
7
Ibid., at p. 17. See also Report of the UN Secretary-General, Oceans and the Law of the
Sea, UN Doc. A/59/62, 4 March 2004, paragraph 247, text available at <www.un.org>.
8
For a thorough presentation see UNEP, Ecosystems and biodiversity in deep waters and
high seas (2006); text available at <www.unep.org>; see also Padmashree Gehl Sampath,
Regulating bioprospecting. Institutions for drug research, access and benefit sharing (UNU,
New York 2005).
9
Report of the UN Secretary-General, supra note 7, at p. 12.
JURISDICTION IN THE DEEP SEA 135
communities of interest are also to be found – and threatened by human ac-

tivities – in seamounts, deep-sea trenches (with abundant hadal fauna), deep-
sea coral reefs, submarine canyons, cold seeps and pockmarks as well as po-
lymetallic nodules and gas hydrates, mostly consisting of methane gas in crys-
talline form.
In this context, access to and exploitation of the biological resources of the
deep seabed becomes a boom industry, albeit reserved to few, affluent and
technologically advanced members of the world community 10 . At present,
both within the confines of coastal State jurisdiction and, much more impor-
tantly, in the areas under the high seas, ‘bioprospecting’ has become the most
immediately exploitable resource of the seabed 11 , with obvious practical in-
terest for all those concerned. Defined as
“the exploration of biodiversity for commercially valuable genetic and bio-
chemical resources” 12
or even
“the process of gathering information from the biosphere on the molecular
composition of genetic resources for the development of new commercial
products” 13 ,
bioprospecting, or ‘biodiscovery’ “to put greater emphasis on the investiga-
tive aspect of the research and less on the idea of future exploitation” 14 , does
not fit easily into the categories of activities recognised by the Law of the
Sea Convention; indeed, the term does not even appear in the text of the
10
Apparently, a deep-ocean scientific expedition can cost up to $30.000 per day with a
minimum duration of two weeks; for more information see Subsidiary Body on Scientific,
Technical and Technological Advice (SBSTTA), Bioprospecting of genetic resources of the
deep-sea bed, Doc. UNEP/CBD/SBSTTA/2/15, 1996, available ay <www.biodiv.org>
11
For an overview see Craig H. Allen, Prospecting the oceanic gardens of Eden: Interna-
tional law issues in deep seabed vent resources conservation and management, 13 George-
town IELR 2001, pp. 563-660; Julia Jabour-Green & Dianne Nicol, Bioprospecting in areas
outside national jurisdiction. Antarctica and the Southern Ocean, 4 Melbourne JIL 2003, pp.
76-111.
12
See SBSTTA, Report prepared in response to Decision II/10 (1995) of the Conference of
the Parties to the Convention on Biological Diversity, Doc. UNEP/CBD/SBSTTA/8/INF/3/Rev.1
of 22 February 2003, paragraph 49; available at <www.biodiv.org>.
13
Ibid. See also the descriptive approach eventually taken by the UN Secretary-General:
“[T]he search for biological compounds of actual or potential value to various applications, in
particular commercial applications[, …] involv[ing] a series of value-adding processes, usu-
ally spanning several years, from biological inventories requiring accurate taxonomic identifi-
cation of specimens to the isolation and characterisation of valuable active compounds”; Re-
port of the UN Secretary-General, Oceans and the law of the sea, UN Doc. A/62/_/ (advanced
and unedited text), 12 March 2007, paragraph 150, available at <www.un.org>.
14
Ibid.
Convention 15 . Nevertheless, Law, as indeed does Nature, abhors vacuum.

Clearly, the new activities need to be regulated. The question is whether we
need a new set of rules – and then who would be competent to thus legislate?
Or, alternatively, could it be that they already fit into the existing legal
framework, which keeps the resources of the deep seabed away from State
jurisdiction, entrusting them to the regulatory powers of the International
Seabed Authority (ISA), where “a system of prior authorisation and man-
agement has replaced the primitive principles of free access and first come,
first served” 16 ? On the other hand, absent an express and clear submission to
the institutional and regulatory environment of the deep seabed, the re-
emergence of flag State jurisdiction, in exercise of a freedom of the high
seas, is not unthinkable: it is, after all, the default jurisdiction in customary
international law. And indeed the Law of the Sea Convention is very explicit
in ascertaining that, whatever the rights granted or exercised in the deep sea-
bed, “the legal status of the waters superjacent to the Area or that of the air
space above those waters” is not affected 17 .
1. THE JURISDICTIONAL EXCEPTION OF THE DEEP SEABED
The allocation of jurisdiction under the Law of the Sea Convention con-
tained yet another novelty. The entire Area of the deep seabed, defined as
“the seabed and ocean floor and subsoil thereof, beyond the limits of national
jurisdiction” 18 ,
has been removed from State jurisdiction and declared the “common heri-
tage of mankind” 19 . The new concept, famously proposed by the Maltese
ambassador Arvid Pardo in 1967, had an avowed economic perspective,
purporting to ensure the equitable sharing of the benefits accruing from the
exploitation of the resources of the seabed amongst the less affluent States of
the international community. In that respect, it fit perfectly within the ideo-
logical environment of its era and the revendications of the emerging devel-
oping States, as best set out in the 1970 Declaration of principles governing
15
Tullio Scovazzi, Bioprospecting on the deep seabed: A legal gap requiring to be filled, in
Francesco Francioni & Tullio Scovazzi (eds.), Biotechnology and International Law (Hart
Publishing, Oxford/Portland, Oregon 2006) pp. 81-97.
16
In the words of Francesco Francioni, International Law for Biotechnology: Basic princi-
ples, in Francioni & Scovazzi (eds.), ibid., pp. 3-27, at p. 8.
17
Article 135 LOSC.
18
19
Article 136 LOSC.
the seabed and the ocean floor and the subsoil thereof beyond the limits of
national jurisdiction 20 .
Part XI of the Law of the Sea Convention sets out the core elements of the
system 21 . The Area is declared a zone beyond national jurisdiction not sub-
ject to appropriation 22 . All activities therein
“shall … be carried out for the benefit of mankind as a whole” 23 ,
meaning in practice that all economic benefits derived therefrom will be
shared equitably and on a non-discriminatory basis among all States 24 . The
appropriate exploitation mechanism will be implemented by the Interna-
tional Seabed Authority, which shall act on behalf of mankind as a whole; it
remains the entity to which all rights in the resources of the Area are vested 25 .
Nevertheless, activities in the Area will be carried out “exclusively for peace-
ful purposes by all States” 26 .
The limitations of the concept were almost immediately perceived – in-
deed, it found almost no other application, with the exception of the 1979
Agreement governing the activities of States on the Moon and other celestial
bodies 27 , itself an instrument of limited applicability for the time being. The
20
Adopted by UN General Assembly Resolution 2749 (XXV), available at <www.un.org>;
for the authentic flavour of the times see Mohammed Bedjaoui, Towards a new international
economic order (UNESCO, Paris 1979). Note also the comments by Marti Koskenniemi &
Marja Lehto, The privilege of universality. International law, economic ideology and seabed
resources, 65 Nordic JIL 1996, pp. 533-555; Markus G. Schmidt, Common heritage or common
burden? The US position on the development of a regime for deep-seabed mining in the Law of
the Sea Convention (Oxford 1989).
21
For an overview see Christopher C. Joyner, The concept of the common heritage of
mankind in international law, 13 Emory ILR 1999, pp. 615-628; Jennifer Frakes, The common
heritage of mankind principle and the deep seabed, outer space and Antarctica: Will devel-
oped and developing nations reach a compromise?, 21 Wisconsin ILJ 2003, pp. 409-434; Gra-
ham Nicholson, The common heritage of mankind and mining. An analysis of the law as to
the high seas, outer space, the Antarctic and world heritage, 6 NZJEL 2002, pp. 177-198; An-
astasia Strati, Deep seabed cultural property and the common heritage of mankind, ICLQ
1981, pp. 859-894.
22
23
24
25
26
Article 141 LOSC.
27
Article 11 paragraph 1 reads: “The Moon and its natural resources are the common heri-
tage of mankind, …”; the Moon Treaty was concluded on 18 December 1979 and entered into
force on 11 July 1984; 18 ILM 1979, pp. 1434-1441. For an overview see M.L. Smith, The
commercial exploitation of mineral resources in outer space, in Tanja L. Zwaan (ed.), Space
Law: Views of the future (Kluwer Law International, Deventer 1988) pp. 42-55; Carl Q.
Christol, The Moon Treaty and the allocation of resources, 22 Annals of Air and Space Law
1997, pp. 31-51.
only other reference to the common heritage of mankind to be found in a

treaty, namely that included in the 1983 FAO International Undertaking on
Plant Genetic Resources 28 , quickly succumbed to a reductio ad absurdum, as
in 1991 – already in another era in international law – it was construed to read:
“The concept of the common heritage of mankind, as applied in the Interna-
tional Undertaking on Plant Genetic Resources, is subject to the sovereignty of
States over their plant genetic resources” 29 .
Although the Authority is supposed to undertake activities in the Area in a
manner that would prevent, reduce and control
“interference with the ecological balance of the marine environment” 30
and shall adopt appropriate rules, regulations and procedures for
“the protection and conservation of the natural resources of the Area and the
prevention of damage to the flora and fauna of the marine environment” 31 ,
still the economic outlook of the project makes it unsuitable for the exigen-
cies of present-day sustainable management purposes. Indeed, it has been
suggested that the concept itself is incompatible with the principles of envi-
ronmental protection and sustainability 32 , as these were set out and gradually
developed in the series of programme statements: the 1972 Stockholm Dec-
laration on the Human Environment 33 , the 1992 Rio Declaration on Envi-
28
Approved by Resolution 8/83 of the FAO General Conference at its 22nd session, 1983;
text available at <www.fao.org>.
29
Resolution C3/91, adopted by the FAO General Conference at its 26th session, 1991;
ibid. ; see also Kerry ten Kate & Carolina Lasén Diaz, The Undertaking revisited: A commen-
tary on the revision of the International Undertaking on Plant Genetic resources for Food and
Agriculture, 6 RECIEL 1997, pp. 284-292.
30
Article 145(a) LOSC.
31
Article 145(b) LOSC.
32
Thus Leary, supra note 4, at pp. 99-100; Jonathan Verschuuren, Principles of environ-
mental law. The ideal of sustainable development and the role of principles of international,
European and national environmental law (Nomos, Baden-Baden 2003); Elisa Morgera,
From Stockholm to Johannesburg: From corporate responsibility to corporate accountability
for the global protection of the environment?, 13 RECIEL 2004, pp. 214-222; Lavanya Raja-
mani, From Stockholm to Johannesburg. The anatomy of dissonance in the international envi-
ronmental dialogue, 12 RECIEL 2003, pp. 23-32.
33
11 ILM 1972, pp. 1416-1420. For comments on its impact then and now see Louis B.
Sohn, The Stockholm Declaration on the Human Environment, 14 Harvard JIL 1973, pp.
413-515; Jutta Brunnée, The Stockholm Declaration and the structure and processes of inter-
national environmental law, in Myron H. Nordquist, John Norton Moore & Said Mahmoudi
(eds.), The Stockholm Declaration and law of the marine environment (Martinus Nijhoff, The
Hague 2003) pp. 67-84.
ronment and Development 34 and the 2002 Johannesburg Summit on Sustain-

able Development 35 .
Nor is the jurisdictional aspect it contains, in the form of a transfer of
powers from the State to the commons, necessarily welcome at all times.
Both the 1992 Convention on Biological Diversity 36 and the 2001 FAO In-
ternational Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA) 37 moved away from it, opting instead for the parallel concept of
‘common concern of humankind’ 38 . This is a discernible shift in emphasis
away from a claim of outright ownership towards a much more balanced ap-
proach, where resources remain subject to the traditional allocation of State
jurisdiction – or, indeed, a system of freedom of access thereto – but their
management requires a holistic approach, which takes into account the gen-
eral interest of humanity in their conservation and thus legitimises restric-
tions to the sovereign State’s powers to regulate or limitations placed upon
34
31 ILM 1992, pp. 876-880. For first reactions see David A. Wirth, The Rio Declaration
on Environment and Development. Two steps forward and one back, or vice versa?, 29 Geor-
gia LR 1995, pp. 599-653; Joseph Sinde Warioba, The reform of the United Nations system in
the context of the Law of the Sea and the United Nations Conference on the Environment and
Development, 7 African JICL 1995, pp. 426-444; Douglas M. Johnston, UNCLOS III and
UNCED: A collision of mind-sets?, in Lorne K. Kriwoken (ed.), Oceans law and policy in the
post-UNCED era. Australian & Canadian perspectives (Kluwer, 1996) pp. 11-24.
35
See also in general Ulrich Beyerlin & Martin Reichard, The Johannesburg Summit: Out-
come and overall assessment, 63 ZaöRV 2003, pp. 213-237; Virginie Barral, Johannesburg
2002: Quoi de neuf pour le développement durable?, 107 RGDIP 2003, pp. 415-432; Kevin R.
Gray, World Summit on Sustainable Development. Accomplishments and new directions?, 52
ICLQ 2003, pp. 256-268.
36
31 ILM 1992, pp. 882-847; concluded during the 1992 Rio Conference on Environment
and Development, the Convention boasts today 190 members; for the text and latest develop-
ments see <www.biodiv.org>. For an overview see Michael Bowman & Catherine Redgwell
(eds.), International law and the conservation of biological diversity (Kluwer Law Interna-
tional, The Hague 1996); Catherine Redgwell, The Convention on Biological Diversity, 31
Thesaurus Acroasium 2002, pp. 340-396. See also Frédéric Jacquemont & Alejandro Capar-
rós, The Convention on Biological Diversity and the Climate Change Convention 10 years af-
ter Rio. Towards a synergy of two regimes?, 11 RECIEL 2002, pp. 169-180.
37
Adopted during the 31st FAO General Conference on 21 January 2001; text available
at<www.fao.org>. For a thorough discussion of the history, the concept and the purpose of the
new instrument see Ikechi Mgbeoji, Beyond rhetoric: State sovereignty, common concern and
the inapplicability of the common heritage concept to plant genetic resources, 16 Leiden JIL
2003, pp. 821-837; Mary E. Footer, Agricultural biotechnology, food security and human
rights, in Francioni & Scovazzi (eds.), supra note 15, pp. 257-284, especially at pp. 270-278.
38
For a full discussion of both the concepts and related notions see Jutta Brunnée, Com-
mon areas, common heritage and common concern, in Daniel Bodansky, Jutta Brunnée &
Ellen Hey (eds.), The Oxford Handbook of International Environmental Law (Oxford 2007)
pp. 550-573, especially at pp. 562-565.
access to common spaces 39 ; in other words, we move away from the question:
who is the regulator? and, instead, concentrate on the question: how are we
to regulate?.
The fact that the new concept was better suited to the purpose of conven-
tional provisions, which sought to call upon States to regulate in order to
protect common goods perceived at peril rather than enter into a discussion
of sovereignty, is further evidenced in the very first preambular paragraph of
the 1992 UN Framework Convention on Climate Change (FCCC) 40 , which
acknowledges that
“[C]hange in the earth’s climate and its adverse effects are a common concern
of humankind”;
or even at the same declaration in the preamble of the Convention on Biologi-
cal Diversity 41 , which is further clarified with the explicit reaffirmation that
“States have sovereign rights over their own biological resources” 42 .
It is certainly true that the notion of common heritage retains a certain al-
lure, an almost romantic attraction 43 . It is also true that the structure created
under the Law of the Sea Convention applies only to mineral resources 44 ,
whereas the original proposal covered all the natural resources, living and
non-living, existing in the international sea floor beyond the 200-mile limit
of coastal State jurisdiction 45 , thus reducing it, in the words of its instigator,
39
Francioni, supra note 16, at pp. 15-16; see also Riccardo Pavoni, Biodiversity and Bio-
technology: Consolidation and strains in the emerging international legal regimes, in Fran-
cioni & Scovazzi (eds.), supra note 15, pp. 29-57, especially pp. 31-39.
40
31 ILM 1992, pp. 849-873; concluded during the 1992 Rio UN Conference on Environ-
ment and Development, it entered into force on 21 March 1994. With 189 ratifications so far,
the Convention enjoys almost universal membership; for the text and latest developments see
<www.unfccc.org>. For an overview see Robin Churchill & David Freestone (eds.), Interna-
tional Law and global climate change (Graham & Trotman/Martinus Nijhoff, London/Dor-
drecht/Boston 1991); Laurence Boisson de Chazournes, The United Nations Framework Con-
vention on Climate Change: on the road towards sustainable development, in Rüdiger Wolfrum
(ed.), Enforcing environmental standards. Economic mechanisms as viable means? (Springer,
Berlin/Heidelberg 1996) pp. 285-300.
41
Thus the third preambular paragraph of the Convention of Biological Diversity: “Affirm-
ing that the conservation of biological diversity is a common concern of humankind, …”.
42
Fourth preambular paragraph of the Convention of Biological Diversity.
43
Ram Prakash Anand, Common heritage of mankind: Mutilation of an ideal, 37 Indian
JIL 1997, pp. 1-18.
44
Article 133(a) LOSC. See also infra.
45
Tullio Scovazzi, Mining, protection of the environment, scientific research and bio-
prospecting: Some considerations on the role of the International Seabed Authority, 19
TIJMCL 2004, pp. 383-409, at pp. 386-387; Charles-Alexandre Kiss, La notion du patrimoine
commun de l’humanité, 175 RCADI 1982-II, pp. 99-256.
to “little short of a disaster” 46 . Often the discussion on the management of

shared resources, and fisheries is perhaps the best example, reverts to the
need to set up a centralised structure that would undertake the every-day
function of the system in the common interest, raising prospects and fears for
a creeping common heritage 47 . Overall, however, it seems that the world has
moved away from novel concepts of common or joint ownership or jurisdic-
tion towards new concepts of management 48 – including the recent proposal
for the creation of an ombudsman for the oceans 49 . And therein lies the chal-
lenge for regulating the future in the deep seabed.
2. AN INSTITUTIONAL APPROACH?
Be it a question of jurisdiction or management, the fact of the matter re-

mains that the deep seabed has been removed from the jurisdictional claims
of coastal States: the last strands of a certain tiding-up are taking place in the
context of the Commission on the Limits of the Continental Shelf (CLCS),
which employs a quasi-judicial process with a view to settle “final and bind-
ing” outer continental shelf limits beyond 200 miles 50 .
46
Thus Arvid Pardo, The Convention on the Law of the Sea: A preliminary appraisal, 20
San Diego LR 1983, pp. 489-503, at p. 499.
47
Thus Erik Franckx, The 200-mile limit: Between creeping jurisdiction and creeping
common heritage? 48 GYBIL 2005, pp. 117-149, at pp. 135-147; Moritaka Hayashi, Global
governance of deep-sea fisheries, 19 TIJMCL 2004, pp. 289-298, at pp. 297-298; Yoshifumi
Tanaka, Zonal and integrated management approaches to ocean governance: Reflections on a
dual approach in international law of the sea: ibid., pp. 483-514, at pp. 506-512.
48
H.N. Schreiber (ed.), Law of the Sea. The common heritage and emerging challenges
(Kluwer Law International, The Hague 2000); Edward Guntrip, The common heritage of
mankind. An adequate regime for managing the deep seabed?, 4 Melbourne JIL 2003, pp.
376-405.
49
Report of the work of the UN Open-ended Informal Consultative Process on Oceans and
the Law of the Sea at its seventh meeting, UN Doc. A/61/156, 17 July 2006, paragraph 93;
available at <www.un.org>.
50
Article 76 paragraph 8 LOSC. Submissions have been made by the Russian Federation
(2001), Brazil (2004), Australia (2004), Ireland (2005), New Zealand (2006), jointly by
France, Ireland, Spain and the United Kingdom (2006), and Norway (2006); for the latest de-
velopments see <www.un.org>. See, in general, Donald Rothwell, Building on the strengths
and addressing the challenges: The role of the law of the sea institutions, 35 ODIL 2004, pp.
131-156, at pp. 133-135; Ron MacNab, The case of transparency in the delimitation of the
outer continental shelf in accordance with UNCLOS article 76, ibid., pp. 1-17; Philomène A.
Verlaan, New seafloor technology and Article 76 of the 1982 United Nations Convention on
the Law of the Sea, 21 Marine Policy 1997, pp. 425-434; Edwin Egede, Submission of Brazil
and article 76 of the Law of the Sea Convention 1982, 21 TIJMCL 2006, pp. 33-55; Andrew
Serdy, Towards certainty of seabed jurisdiction beyond 200 nautical miles from the territorial
Under the Law of the Sea Convention all activities in the Area, including
payments in compensation for any encroachment upon it sanctioned by the
CLCS 51 , would fall under the jurisdictional powers of the International Sea-
bed Authority,
“the organisation through which States parties shall …organise and control ac-
tivities in the Area, particularly with a view to administering the resources of
the Area” 52 .
This seemingly wide mandate, however, is severely curtailed upon closer in-
spection, as the definition of such resources refers only to
“all solid, liquid or gaseous mineral resources in situ in the Area or beneath the
seabed, including polymetallic nodules” 53 .
The ISA has already undertaken the task of regulating the parameters of ex-
ploration and exploitation for such matters. Thus in 2000 the Assembly ap-
proved the Regulations on Prospecting and Exploration for Polymetallic
sea baseline: Australia’s submission to the Commission on the Limits of the Continental Shelf,
36 ODIL 2005, pp. 201-217; Clive R. Symmons, The Irish partial submission to the Commis-
sion on the Limits of the Continental Shelf in 2005: A precedent for future such submissions
in the light of the ‘disputed areas’ procedures of the Commission?, 37 ODIL 2006, pp. 299-
317; Alex G. Oude Elferink & Constance Johnson, Outer limits of the continental shelf and
‘disputed areas’: State practice concerning article 76(10) of the LOS Convention, 21 TIJMCL
2006, pp. 461-487; Alex G. Oude Elferink, Article 76 of the LOSC on the definition of the
continental shelf: Questions concerning its interpretation from a legal perspective, ibid., pp.
269-285; Vicente Marotta Rangel, Settlement of disputes relating to the delimitation of the
Outer Continental Shelf: The role of international courts and arbitral tribunals, ibid., pp. 347-
362; Myron H. Nordquist, John Norton Moore & Tomas H. Heidar (eds.), Legal and scientific
aspects of continental shelf limits (Martinus Nijhoff, 2004).
51
Article 82 paragraph 1 LOSC reads: “The coastal State shall make payments or contribu-
tions in kind in respect of the exploitation of the non-living resources of the continental shelf
beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is
measured”. For the practicalities of the matter, which has not been as yet implemented, see
Michael W. Lodge, The International Seabed Authority and Article 82 of the UN Convention
on the Law of the Sea, 21 TIJMCL 2006, pp. 323-333; George Mingay, Article 82 of the LOS
Convention – Revenue sharing – The mining industry’s perspective, ibid., pp. 335-346.
52
Article 157 paragraph 1 LOSC. For an overview of what it was, what ended up being
and what it may become see Shigeru Oda, International law of the resources of the sea, 127
RCADI 1969-II, pp. 355-484; Ugo Villani, Il regime di sfruttamento dei fondi marini, in Isti-
tuto Italo-Latinoamericano, Prospettive del diritto del mare all’alba del XXI secolo – Per-
spectivas del derecho del mar al alba del siglo XXI, Convegno italo-latinoamericano, 12-13
novembre 1998 (IILA, Roma 1999) pp. 149-171; Niels-Jürgen Seberg-Elverfeldt, The settle-
ment of disputes in deep seabed mining. Access, jurisdiction and procedure before the Seabed
Disputes Chamber of the International Tribunal for the Law of the Sea (Nomos, Baden-
Baden/Hamburg 1998).
53
Nodules in the Area 54 , the ‘Mining Code’. On that basis, the Authority was
able to finally conclude the first exploration contracts with pioneer inves-
tors 55 . In view of the increasingly commercially-interesting presence of
other sediments and structures, a similar effort is under way in order to con-
clude two separate sets of regulations 56 , namely on hydrothermal polymetal-
lic sulphides 57 and cobalt-rich ferromanganese crusts 58 , with regulations on
methane hydrates to follow. The Mining Code is further complemented by
Recommendations for the guidance of contractors for the assessment of pos-
sible environmental impacts arising from exploration for polymetallic nod-
ules in the Area 59 , in practice an environmental impact assessment manual
for the deep seabed.
The adoption of environmental regulations by the International Seabed
Authority has also fuelled the debate as to the extent of its jurisdiction. Un-
der article 145 of the Law of the Sea Convention, the Authority has indeed
the obligation to protect and preserve the marine environment, albeit strictly
“from harmful effects which may arise from activities in the Area” 60 ,
although such ‘activities’ would only cover
54
Doc. ISBA/6/A/18, available at <www.isa.org.jp>. For an overview see M.W. Lodge,
International Seabed Authority Regulations on Prospecting and Exploration for Polymetallic
Nodules in the Area, 20 JENRL 2002, pp. 270-295; idem., Environmental regulation of deep
seabed mining, in Andrée Kirchner (ed.), International Maritime Environmental Law (Kluwer
Law International, 2003) pp. 49-59; Jason C. Nelson, The contemporary seabed mining re-
gime: A critical analysis of the Mining Regulations promulgated by the International Seabed
Authority, 16 Colorado JIELP 2005, pp. 27-76.
55
These were consortia sponsored by China (COMRA); France (Ifremer-Afernod); the
Government of India; Japan (DORD); the Government of the Republic of Korea; the Russian
Federation (Yuzhmoreologiya) and Poland in cooperation with Bulgaria, Cuba, the Czech re-
public, the Russian Federation and Slovakia (ICM); as well as of 2005 the Federal Republic
of Germany; for the latest developments see <www.isa.org.jm>. For a overview see Günther
Jänicke, Joint ventures for deep seabed mining operations, 55 ZaöRV 1995, pp. 329-338.
56
Doc. ISBA/10/C/WP.1/Rev.1, 3 May 2006. The Council eventually decided to proceed
with two separate sets of regulations; Press release SB/12/12, 15 August 2006; both docu-
ments available at <www.isa.org.jm>.
57
Defined as “hydrothermally formed deposits of sulphite minerals, which contain concen-
trations of metals including, inter alia, copper, lead, zinc, gold and silver”; draft regulation 1
paragraph 3(f), ibid.
58
Defined as “hydroxide/oxide deposits of cobalt-rich iron/manganese (ferromanganese)
crust formed from direct participation of minerals from seawater onto hard substrates contain-
ing minor but significant concentrations of cobalt, titanium, nickel platinum, molybdenum,
tellurium, cerium, other metallic and rare earth elements”; draft regulation 1 paragraph 3(b),
ibid.
59
Approved on 4 July 2001 by the Legal and Technical Commission; Doc. ISBA/7/LTC/1/
Rev.1 of 10 July 2001, available at <www.isa.org.jm>.
60
Article 145 LOSC.
“all activities of exploration for, and exploitation of the [mineral] resources of

the Area” 61 .
It is clear that the intention of both the framers of the Convention and of the
1994 Agreement relating to the implementation of Part XI of the UN Con-
vention of the Law of the Sea was to grant to the Authority a preferential
role of administrator in the Area, further endowed with all
“incidental powers, consistent with [the] Convention that are implicit in and
necessary for the exercise of its powers and functions with respect to activities
in the Area” 62 .
In essence, the Regulations build upon the environmental standards set out in
Part XII of the Law of the Sea Convention, as further developed over time
by international instruments and the case-law of international courts and tri-
bunals 63 . On this basis, the Authority could well attempt an expansion of its
powers, even those implied, to cover all pollution control in the Area, includ-
ing pollution arising from or incidental to the exploration and exploitation of
the biological resources of the deep sea. Indeed, a rather ingenious argument
would read the increasingly bothersome light and noise impact of such ac-
tivities into the term ‘energy’, included in the definition of pollution under
article 1 paragraph 1(4) of the Law of the Sea Convention 64 , in a very perti-
nent example of the living-instrument nature of the Convention. It seems,
however, that both the Authority and the member States are somewhat reluc-
tant to delve into matters other than those strictly allocated to them under the
Law of the Sea Convention 65 , thus significantly reducing the possible impact
of their work on further developments in the Area.
61
62
Article 157 paragraph 2 LOSC in fine.
63
The same argument was made in Maria Gavouneli, From uniformity to fragmentation?
The ability of the UN Convention on the Law of the Sea to accommodate new uses and chal-
lenges, in Anastasia Strati, Maria Gavouneli & Nikos Skourtos (eds.), Unresolved issues and
new challenges to the Law of the Sea (Martinus Nijhoff, Leiden/Boston 2006) pp. 205-233, at
p. 221; Scovazzi, supra note 15, at pp. 88-91; see also Haritini Dipla, The role of the Interna-
tional Court of Justice and the International Tribunal for the Law of the Sea in the progressive
development of the Law of the Sea, ibid., pp. 235-250, especially at pp. 245-248.
64
Thus Leary, supra note 4, pp. 40-43; H.M. Dotinga & A.G. Oude Elferink, Acoustic pol-
lution of the oceans: The search for legal standards, 31 ODIL 2000, pp. 151-182.
65
See Frida Mara Armas Pfirter, Legal implications related to the management of seabed
living resources in the Area under the Law of the Sea Convention, paper submitted to the ISA
Legal and Technical Commission in 2004, as quoted by Scovazzi, supra note 45, pp. 400-401;
Ikechi Mgbeoji, (Under)mining the seabed? Between the International Seabed Authority Min-
ing Code and the sustainable bioprospecting of hydrothermal vent ecosystems in the seabed
area: Taking precaution seriously, 18 Ocean YB 2004, pp. 413-452.
On the other hand, the Authority is well placed and fully authorised to re-
move from State action certain parts of the seabed, in effect creating deep-
sea marine protected areas. Under article 162 paragraph 2(x) of the Law of
the Sea Convention, the ISA Council may
“disapprove areas for exploitation by contractors or the Enterprise in cases
where substantial evidence indicates the risk of serious harm to the marine en-
vironment”.
The Secretary-General of the International Seabed Authority has repeatedly
made noises indicating that this is a goal which the organisation may wish to
pursue 66 , although again with characteristic circumspect reluctance. Already
provisions referring to ‘preservation reference zones’ appear in both the
Regulations on polymetallic nodules 67 and the draft regulations on sul-
phides 68 .
The designation of such areas shall not directly restrict or control in any
way other activities in the Area, such as bioprospecting or even deep-sea
tourism 69 , but there is no doubt that protective regulation would also rever-
berate upon them. In fact, the Logatchev vent field in the mid-Atlantic has
already been suggested as a possible such protected area 70 . Similar initiatives
66
Statement by the Secretary-General of the International Seabed Authority to the Fourth
Meeting of the Informal Consultative Process of the UN Convention on the Law of the Sea
(UNICPLOS), 2003, available at <www.isa.ogr.jm>.
67
Regulation 31(7) reads: “If the Contractor applies for exploitation rights, it shall propose
areas to be set aside and used exclusively as impact reference zones and preservation refer-
ence zones. ‘Impact reference zones’ means areas to be used for assessing the effect of each
contractor’s activities in the Area on the marine environment and which are representative of
the environmental characteristics of the area. ‘Preservation reference zones’ means areas in
which no mining shall occur to ensure representative and stable biota of the seabed in order to
assess any changes in the flora and fauna of the marine environment”; see supra note 56.
68
Draft regulation 33(4) reads: “Contractors, sponsoring States and other interested States
or entities shall cooperate with the Authority in the establishment and implementation of pro-
grammes for monitoring and evaluating the impacts of deep seabed mining on the marine en-
vironment. When required by the Authority, such programmes shall include proposals for ar-
eas to be set aside and used exclusively as impact reference zones and preservation reference
zones. Impact reference zones’ means areas to be used for assessing the effect of each con-
tractor’s activities in the Area on the marine environment and which are representative of the
environmental characteristics of the area. ‘Preservation reference zones’ means areas in which
no mining shall occur to ensure representative and stable biota of the seabed in order to assess
any changes in the flora and fauna of the marine environment”; see supra note 56.
69
A developing industry, deep-sea tourism is currently bereft of any regulation under the
Law of the Sea Convention and, consequently, a perfectly legal endeavour to “be conducted
with reasonable regard for activities in the Area”; article 147 paragraph 3 LOSC. However,
the ISA could well be competent to establish the parameters of such ‘reasonable regard’; thus
also Leary, supra note 4, at p. 51.
70
Ibid., at p. 220.
are also to be found on the national level and the regional level, covering ar-
eas within coastal State jurisdiction. Thus the Endeavour hydrothermal vents
have been designated by Canada a ‘marine protected area’ under article 35
of the Oceans Act 1996 71 whereas the Lucky Strike hydrothermal vent field
in the exclusive economic zone of Portugal is a candidate for specially pro-
tected area designation under Annex V of the OSPAR Convention 72 .
Whichever way one approaches the issue, the fact remains that the juris-
diction of the International Seabed Authority, as defined in the Law of the
Sea Convention, is clearly deficient when compared with the emerging new
developments in technology and real life. All attempts to enlarge the strict
limits of the common heritage of mankind concept and overcome its express
link to the mineral resources of the seabed, so as to also encompass new ac-
tivities in the deep sea area, would necessarily presume the consent of States
to embark on what clearly constitutes a (tacit?) amendment of the Conven-
tion. A less charitable look could ascertain that “what we are trying to do is
to make the law of another era fit the needs of today” 73 . Nevertheless, inter-
national law cannot have the luxury to change rules with the seasons, or even
eras of development – more often than not, we have to make do with the
tools available. Yet, in spite of what looks very much like a dispiriting first
appearance, the task is not to be considered unattainable, especially when
one is reminded that the Law of the Sea Convention is indeed a living in-
strument, capable both of change in order to accommodate new challenges
and of construing novel associations of existing provisions, both in the text
itself and in other international conventions, to support the evolving needs of
the international community. Whether such an adjustment to emerging re-
quirements would extend to a veritable ‘modification’ of the Convention re-
mains an open question, which needs to be tackled not as an item of intellec-
tual curiosity but as an important issue with immediate (and increasing veri-
fiable) practical ramifications.
71
So designated on 7 March 2003, after an initial ‘pilot’ period; for further information see
<www.pac.dfo-mpo.gc.ca/oceans/mpa/Endeavour_e.htm>. For an early discussion see Lyle
Glowka, Bioprospecting, alien invasive species and hydrothermal vents: Three emerging legal
issues in the conservation and sustainable use of biodiversity, 13 Tulane ELJ 2000, pp. 329-
360, at pp. 353-354.
72
Michael Lodge, Improving international governance in the deep sea, 19 TIJMCL 2004,
pp. 299-316, at p. 310. For a similar experience in another context see Ronán J. Long & An-
thony Grehan, Marine habitat protection in sea areas under the jurisdiction of a coastal mem-
ber State of the European Union: The case of deep-water coral conservation in Ireland, 17
TIJMCL 2002, pp. 235-262.
73
Thus Leary, supra note 4, at p. 34.
3. MANIFESTATIONS OF THE FREEDOMS OF THE HIGH SEAS
In the absence of an explicit provision in the Law of the Sea Convention,

covering the genetic resources of the deep sea and conferring jurisdiction
upon them, enlightenment must necessarily be sought to other rules and
regulations. The most readily available suggestion would be to equate the
prospecting for genetic resources to fishing and apply therein the rules relat-
ing to conservation and management of the living resources of the high seas.
Bioprospecting thus becomes yet another manifestation of the freedoms of
the high seas and the jurisdictional conundrum is further clarified: rather
than operating within the quasi ‘territorial’ jurisdiction of the Area, the flag
State of the prospector would assume (or resume) the primary responsibility
of regulating such activities, even when conducted in the deep sea.
The simplicity of this approach, however, is negated by the complexity of
bioprospecting activities. Although both fishing and bioprospecting necessi-
tate the removal of living organisms from their natural environment, any
similarity stops there. Unlike the massive and permanent character of extrac-
tion from the natural environment that characterises fishing, bioprospecting
requires often minute quantities of living resources, on the basis of which an
intangible superstructure of intellectual effort (and property 74 ) may be erected
– a process mainly governed by the 1977 Budapest Treaty on the interna-
tional recognition of the deposit of microorganisms for the purposes of pat-
ent procedure 75 . The collection of genetic material is but a first step in the
overall effort required for the exploitation of the genetic resources of the sea
and cannot be equated neither in fact not in law with fishing.
It has to be noted, however, that the distinction argument concentrates on a
difference between fishing and bioprospecting, which appears to be qualita-
74
For an overview of intellectual-property issues related to genetic resources – although
not necessarily marine – see Ian Walden, Intellectual property rights and biodiversity, in
Bowman & Redgwell (eds.), supra note 36, pp. 171-189; Sam Johnston & Yamin Farhana,
Intellectual property rights and access to genetic resources, in John Mugabe (ed.), Access to
genetic resources (African Centre of Technology Studies, Nairobi 1997) pp. 245-269; Rüdi-
ger Wolfrum & Peter-Tobias Stoll (eds.), Access and benefit sharing, intellectual property
rights, ex-situ collections, European Workshop on Genetic Resources. Issues and related sub-
jects, Heidelberg 1999 (Schmidt Verlag, Berlin 2000); Graham Dutfield (ed.), Intellectual
property rights, trade and biodiversity. Seeds and plant varieties, The IUCN Project on the
Convention on Biological Diversity and the International Trade Regime (Earthscan, London
2000); OECD, Genetic inventions, intellectual property rights and licensing practices. Evi-
dence and policies (Paris 2002).
75
Adopted on 28 April 1977 and amended on 28 September 1980, it entered into force on
19 August 1980 and for the amendments on 24 May 1984; text available at <www.wipo.org>;
Leary, supra note 4, pp. 172-175.
tive rather than quantitative: indeed, it pertains to the very nature of the ge-
netic resources of the deep seabed as fundamental elements of biodiversity
on earth. On the basis of our present knowledge, this clearly seems to be the
case. Nevertheless, the irreverent thought must be expressed: Is it true that
the genetic resources of the deep seabed, subject as they are to pollution and
ultimately extinction, are different in nature than the (ultimately numerable)
species of fish in the sea or it is just our ignorance – and thus our awe in
their encounter – that leads us to treat them differently than mere food?
The same rationale underlies the second attempt at regulating such activi-
ties as yet another protected category of marine life. Nevertheless, even this
seemingly more appropriate analogy, drawing on the similarities between the
genetic resources of the deep seabed and the sedentary species, allocated by
article 77 of the Law of the Sea Convention to the jurisdiction of the coastal
State as part of is powers over its continental shelf, has also proven to be un-
satisfactory. Defined as
“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 sea-
bed or the subsoil” 76 ,
sedentary species do not necessarily share the natural characteristics of the
deep sea creatures. It has been suggested, however, that the territorial ele-
ment of their continental-shelf affiliation may serve as a blueprint for any fu-
ture arrangement applicable on the living resources of the Area 77 , thus pre-
serving the fundamental allocation of jurisdiction of the Law of the Sea
Convention in the deep seabed.
Another approach would be to equate bioprospecting with marine scien-
tific research, a traditional freedom of the high seas, even though not ex-
pressly mentioned as such in the 1958 High Seas Convention 78 . Instead, is-
sues of marine scientific research were addressed in the 1958 Geneva Con-
vention on the Continental Shelf 79 , which demonstrated a distinct preference
for ‘pure’ scientific research, prohibiting
“any interference with fundamental oceanographic or other scientific research
carried out with the intention of open publication” 80 ,
and further instructing the coastal State not to “normally” withhold its consent,
76
77
Scovazzi, supra note 45, at pp. 83-84.
78
Article 2 of the 1958 Convention on the High Seas; 450 UNTS 82.
79
499 UNTS 311.
80
Article 5 paragraph 1 of the 1958 Geneva Convention on the Continental Shelf; ibid.
“if the request is submitted by a qualified institution with a view to purely sci-
entific research into the physical or biological characteristics of the continental
shelf” 81 .
The Law of the Sea Convention does not include a definition of research
activities or types thereof, although it does contain a long list of specific pro-
visions on the conduct of marine scientific research 82 . Although never actu-
ally naming the distinction, article 243 of the Law of the Sea Convention re-
fers to what would amount to a definition of ‘pure’ research 83 in setting the
standard of cooperation required; and the Convention proceeds to address in
a different manner the two different aspects of research activities. The ques-
tion would then arise: which of the two distinct sets of rules would apply to
bioprospecting, as an expression of marine scientific research? Given the ex-
plicit lucrative nature of bioprospecting, any similarities would rather have
to concentrate on the parallel existence of an element of commercial exploi-
tation in marine research, the ‘applied’ or ‘resource-oriented’ category of
scientific research 84 .
Thus, under the general rules of the Law of the Sea Convention, marine
scientific research carried out in areas under the jurisdiction of the coastal State
“exclusively for peaceful purposes and in order to increase scientific knowl-
edge in the marine environment for the benefit of all mankind” 85
will be granted authorisation almost automatically; indeed, coastal States are
obligated to
“establish rules and procedures ensuring that such consent will not be delayed
or denied unreasonably” 86 .
81
Article 5 paragraph 8 of the 1958 Geneva Convention on the Continental Shelf; ibid.
82
For the system of marine research in general under the Law of the Sea Convention see
Monserrat Gorina-Ysern, An international regime for marine scientific research (Transna-
tional Publications, New York 2003); Elie Jarmache, Sue quelques difficultés de la recherche
scientifique marine, La mer et son droit. Mélanges offerts à Laurent Lucchini & Jean-Pierre
Quéneudec (Pedone, Paris 2003) pp. 303-314; J. Ashley Roach, Marine scientific research
and the new Law of the Sea, 27 ODIL 1996, pp. 59-72; A.H.A. Soons, Marine Scientific Re-
search and the Law of the Sea (Kluwer, Deventer 1982).
83
Article 243 LOSC reads: “States and competent international organisations shall cooper-
ate, …, to create favourable conditions for the conduct of marine scientific research in the ma-
rine environment and to integrate the efforts of scientists in studying the essence of phenom-
ena and processes occurring in the marine environment and the interrelations between them”.
84
Note, however, Giselle Verhoosel, Prospecting for marine and coastal biodiversity: In-
ternational law in deep water, 13 TIJMCL 1998, pp. 91-107, at p. 100, who seems to consider
bioprospecting as pure research.
85
86
Ibid.
In contrast, the coastal State may withhold consent, if the project to be car-
ried out in their exclusive economic zone or continental shelf
“is of direct significance for the exploration and exploitation of natural re-
sources, whether living or non-living” 87 .
In the marine areas beyond national jurisdiction, flag State jurisdiction is
reinstated and thus all States have the right to carry out research in the Area
– where, in an interesting interplay, article 256 stipulates that such research
must be carried out “in conformity with the provisions of Part XI” whereas
article 143 LOSC explicitly states that it must be carried out “in accordance
with Part XIII”! The freedom to conduct marine research is still made sub-
ject to the application of the general principles enumerated in article 240 of
the Law of the Sea Convention, which include the obligation to conduct all
research for peaceful purposes 88 ; as well as the obligation reiterated in article
143 specifically for the Area with the added parameter to ensure “the benefit
of mankind as a whole” 89 .
It is important to note in this respect that this communal obligation applies
to all marine research activities carried out in the Area and not just those re-
lated to mineral resources found therein. Indeed, the international scientific
community seems to have realised the need to further expand the principles
under which it operates so as to also include considerations of environmental
protection, including a rudimentary environmental impact assessment: It is
in this context that a draft Code of Conduct for the sustainable use of hydro-
thermal vent sites has been (privately) elaborated, to be further comple-
mented with a set of Operating Guidelines, both general and specific for cer-
tain sites, for use by organisations and individuals operating there 90 . I am not
aware of any official attempts to comprise a similar set of regulations: the
regulation of marine scientific research remains firmly within the attributes
of the coastal State, with little leeway given to any meaningful intervention
by the international community.
The same rules apply in the Area: jurisdiction remains with the flag State
but the Authority is granted a central coordinating role with a view
87
88
89
See in general Lyle Glowka, Genetic resources, marine scientific research and the inter-
national seabed area, 8 RECIEL 1999, pp. 56-66; Éric Canal-Forgues, Les ressources géné-
tiques des grands fonds marins ne relevant d’aucune juridiction nationale, 8 ADM 2003, pp.
99-110.
90
For a brief presentation see Leary, supra note 4, pp. 196-198; Lyle Glowka, Putting ma-
rine scientific research on a sustainable footing at hydrothermal vents, 27 Marine Policy 2003,
pp. 303-312.
“to promote and encourage the conduct of marine scientific research in the
Area and … coordinate and disseminate the results of such research and analy-
sis when available” 91 .
The point of dissemination of the product created by others lies at the
crossroads between the freedom of scientific research and the concept of the
common heritage of mankind. If the notion of scientific research is widely
understood to also encompass bioprospecting 92 , then clearly the International
Seabed Authority would have an important role to play in coordinating bio-
prospecting activities in the Area and serve
“as a forum for the discussion and development of principles for the better im-
plementation of the existing legal regime for marine scientific research in the
Area and the management of biodiversity in the Area” 93 .
It was with this approach in mind that the International Seabed Authority
participated in the 2006 inaugural meeting of the Ad hoc Open-ended Infor-
mal Working Group set up by UN General Assembly resolution 59/24 of 17
November 2004 to study issues relating to the conservation and sustainable
use of marine biological diversity beyond areas of national jurisdiction 94 ,
where its leading role was particularly highlighted. In that context, the Au-
thority has continued to organise a series of workshops with a view to further
enhance the collection and dissemination of data among the scientific com-
munity, the offshore mining industry and relevant contractors and eventually
the member States in four priority areas, which include levels of biodiversity,
species range and gene flow in abyssal nodule provinces; disturbance and
recolonisation processes at seafloor following mining track creation and
plume resedimentation; minimum plume impacts on the water column eco-
systems; and natural variability in nodule province ecosystems 95 . The under-
standing behind this coordination and dissemination exercise is to effectively
level the playing field, providing to scientists worldwide the necessary pri-
91
92
Scovazzi, supra note 45, at pp. 86-88; Yoshifumi Tanaka, Obligation to cooperate in ma-
rine scientific research and the conservation of marine living resources, 65 ZaöRV 2005, pp.
937-965, at pp. 943-945.
93
Report of the Secretary-General of the International Seabed Authority to the Assembly
of the Authority, Doc. ISBA/9/A/3, 4 June 2003, paragraph 63; available at <www.isa.org.jm>.
94
Report of the Secretary-General of the International Sea-bed Authority to the Assembly
of the Authority, Doc. ISBA/12/A/2, 26 June 2006, paragraphs 51-52; available at <www.isa.org.jm>.
95
ISA, Report of the Secretary-General of the International Seabed Authority under Arti-
cle 166 paragraph 4 of the UN Convention on the Law of the Sea, Doc. ISBA/10/A/3, 31
March 2004, paragraph 128; text and recent developments available at <www.isa.org.jm>.
See also ISA, Prospects for international collaboration in marine environmental research to
enhance understanding of the deep-sea environment. Proceedings of the ISA’ workshop held
in Kingston, Jamaica, 29 July to 2 August 2002 (ISA, Jamaica 2006).
mary information they need in order not to be excluded from operations in

the Area – and thus ensure their continued access to the resources of the
common heritage of mankind – without, at the same time, preventing those
able and willing to pursue further research and invest upon the prospecting,
development and exploitation of any newly identified genetic resources of
the deep seabed.
In the alternative, if marine scientific research were to be considered de-
nuded of any financial aspect, then the only legal regime applicable on the
(unstoppable) future development of bioprospecting and associated activities
would be to revert to an unfettered freedom of the high seas, where the flag
State would be able to authorise operations in the deep seabed with virtually
no consideration of the evolving needs of the international community,
which ultimately do constitute a common concern of humankind under the
Biodiversity Convention 96 . Even in these infant years of the deep seabed in-
dustry, this option offers an unacceptable solution – not least because the
general principles of deep seabed management might have attained the status
of customary law 97 . In an attempt to find a way out of this conundrum, the
international community seeks recourse to other regulatory systems, which,
either standing alone or, better still, in conjunction with the constitutional
system of the Law of the Sea Convention, may well prove to be better suited
to the exigencies and particularities of the biological resources of the deep
seabed – and the bonanza expectations surrounding them.
4. PARALLEL JURISDICTIONS IN THE DEEP SEA
The Law of the Sea Convention is not the only instrument naturally appli-
cable upon the genetic resources of the deep sea. The general objective of
the 1992 Convention on Biological Diversity may seem to have been drafted
with genetic resources and bioprospecting in mind, referring to:
“the conservation of biological diversity, the sustainable use of its components
and the fair and equitable sharing of the benefits arising out of the utilisation of
genetic resources, including by appropriate access to genetic resources and by
96
Thus also Rosemary Rayfuse, Biological resources, in Bodansky, Brunnée & Hey (eds.),
supra note 38, pp. 362-393.
97
Arcangelo Travaglini, Reconciling natural law and legal positivism in the deep seabed
mining provisions of the Convention on the Law of the Sea, 15 Temple ICLJ 2001, pp. 313-
334; Stephen Vasciannie, Deep seabed mining in customary international law. Reconsidering
aspects of the evidence, 27 West Indian LJ 2002, pp. 149-183; Ian Bezpalko, The deep seabed:
Customary law codified, 44 NRJ 2004, pp. 867-905.
appropriate transfer of relevant technologies, taking into account all rights over
these resources and to technologies, and by appropriate funding” 98 .
Genetic resources are defined in this context as “genetic material or actual or
potential value” 99 , the latter being
“any material of plant, animal, microbial or other origin containing functional
units of heredity” 100 .
The general provisions are further specified in article 15 of the Biodiversity
Convention, which makes access to genetic resources subject to mutually
agreed terms and prior informed consent, as well as the 2002 Bonn Guide-
lines on Access to genetic resources and the fair and equitable sharing of the
benefits arising out of their utilisation 101 .
The Biodiversity Convention operates on the territoriality principle for
components of biological diversity found in areas within the limits of na-
tional jurisdiction and reverts to flag State jurisdiction for processes and ac-
tivities carried out beyond the limits of national jurisdiction 102 . It has been
argued that the provisions relating to genetic resources apply only to marine
areas within the areas of national jurisdiction, as they premise marine scien-
tific research, and presumably also bioprospecting, on the prior informed
consent 103 on the contracting party, where such resources are situated. Con-
sequently, the CBD provisions on access and benefit sharing are considered
not applicable beyond the limits of national jurisdiction 104 . This, however,
appears to be a very restricted reading of both the notion of ‘bioprospecting’
and the Biodiversity Convention. Although the genetic resources of the deep
sea clearly constitute ‘components of biological diversity’, it is equally un-
disputable that their harvesting is accomplished through processes and ac-
tivities carried out beyond the limits of national jurisdiction but well under
98
Article 1 of the Biodiversity Convention; supra note 36.
99
Article 2 of the Biodiversity Convention, ibid.
100
Ibid.
101
Decision VI/24, Access and benefit-sharing as related to genetic resources, adopted
during the 6th Conference of the Parties to the Biodiversity Convention (COP 6), 2002; text
available at <www.cbd.int>. See in general M.I. Jeffery, Bioprospecting: Access to genetic
resources and benefit-sharing under the Convention on Biodiversity and the Bonn Guidelines,
6 Singapore JICL 2002, pp. 747-808; David Farrier & Linda Tucker, Access to marine biore-
sources: Hitching the conservation cart to the bioprospecting horse, 32 ODIL 2001, pp. 213-
239; Lyle Glowka, Emerging legislative approaches to implement Article 15 of the Conven-
tion on Biological Diversity, 6 RECIEL 1997, pp. 249-262; Charles Lawson, Implementing an
objective of the Convention on Biological Diversity. Intellectual property, access to genetic
resources and benefit sharing in Australia, 22 Env’l & Planning LJ 2005, pp. 130-157.
102
Article 4(b) of the Biodiversity Convention.
103
Article 15 paragraph 5 of the Biodiversity Convention.
104
Thus Glowka, supra note 71, at p. 359.
the jurisdiction of the State, whose nationals carry them out. Indeed, this ap-
proach seems to constitute the rule of the Biodiversity Convention – as the
member States also assume responsibility for the actions of their nationals
everywhere in the sea space 105 . It is a principle further elaborated in the gen-
eral obligation to cooperate under article 5 of the Biodiversity Convention
and certainly in the classic formulation of the ‘no harm’ rule in article 3
thereof, which reads:
“States have, … the responsibility to ensure that activities within their jurisdic-
tion or control do not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction”.
The irony of finding a complete regulatory arsenal for the utilisation of deep
sea resources outside the Law of the Sea Convention has not escaped the at-
tention of commentators 106 .
On the other hand, the two conventions, although clearly complementary
in the marine environment, do not share the same outlook. Indeed, nowhere
is the contrast more pronounced than in the treatment of the marine living re-
sources. Where the Law of the Sea Convention regulates ‘exploitation’ and
‘management’, the Biodiversity Convention concentrates on the protection
of species and habitat 107 . The Biodiversity Convention is explicitly based on
the precautionary principle 108 – although the International Tribunal on the
Law of the Sea had considerable trouble to read it through the lenses of a
(slightly modifying but still modifying) precautionary approach 109 . Instead of
105
Thus also Scovazzi, supra note 15, at pp. 91-92; see also Rüdiger Wolfrum, The Con-
vention on Biological Diversity: using State jurisdiction as a means of ensuring compliance,
in Wolfrum (ed.), supra note 40, pp. 373-393.
106
Lyle Glowka, The deepest of ironies: Genetic resources, marine scientific research and
the Area, 12 Ocean Yearbook 1996, pp. 154-178; Donald K. Anton, Law of the sea’s biologi-
cal diversity, 36 Columbia JTrans’l L 1998, pp. 341-371; Christopher C. Joyner, Biodiversity
in the marine environment: Resource implications for the law of the sea, 28 Vanderbilt J.
Trans’l L. 1995, pp. 635-687.
107
Giuseppe Cataldi, Biotechnology and marine biogenetic resources: The interplay be-
tween UNCLOS and the CBD, in Francioni & Scovazzi, supra note 15, pp. 99-109, at p. 99;
Rüdiger Wolfrum & Nele Matz, The interplay of the United Nations Convention on the Law
of the Sea and the Convention on Biological Diversity, Max Planck YBUNL 2000, pp. 445-
480, at p. 477.
108
Thus the seventh preambular paragraph to the Biodiversity Convention: “Noting also
that where there is a threat of significant reduction or loss of biological diversity, lack of full
scientific certainty should not be used as a reason for postponing measures to avoid or mini-
mise such a threat, …”.
109
ITLOS, Southern Bluefin Tuna cases, Australia v. Japan, New Zealand v. Japan, provi-
sional measures, 1999, paragraphs 77-79; available at <www.itlos.org>; Simon Marr, The
Southern Bluefin Tuna cases. The precautionary approach and conservation and management
of fish resources, 11 EJIL 2000, pp. 815-831; Alan Boyle, Further development of the Law of
the profits-oriented ‘common heritage of mankind’ of the Law of the Sea

Convention, the Biodiversity Convention opts for the burden-sharing con-
cept of ‘common concern of humankind’ 110 . At the end of the day, these are
treaties belonging to different eras of law-making, different eras of law tout
court.
And yet, there is no doubt that the application of the two treaties is almost
indispensable in matters relating to the genetic resources of the deep sea. The
possibility of a conflict, although generally acknowledged as theoretical, re-
mains nevertheless realistic. The Biodiversity Convention includes a con-
flicts rule in article 22, which reads:
“ 1. The provisions of this Convention shall not affect the rights and obliga-
tions of any contracting party deriving from any existing international agree-
ment, except where the exercise of those rights and obligations would cause a
serious damage or threat to biological diversity.
2. Contracting parties shall implement this Convention with respect to the
marine environment consistently with the rights and obligations of States un-
der the law of the sea”.
At first sight, the Biodiversity Convention accords precedence to the Law
of the Sea Convention, as further required by article 311 paragraph 3 of the
latter. However, a closer look reveals that this is not a blanket rule granting
unconditional priority to the Law of the Sea Convention. Such priority is ac-
corded only to the extent that it conforms to a ‘no-harm-to-biodiversity’ rule
and provided, moreover, that the Biodiversity Convention is applied consis-
tently with the general rules of the law of the sea rather than the specific
provisions of the Law of the Sea Convention 111 . This reading of the conflict
clause may eventually result in the Biodiversity Convention overriding the
Law of the Sea Convention; as indeed it should be. Unless the widest possi-
ble latitude is given to the conduct compliant with the general principles
enunciated in the two treaties, the innovations of the Biodiversity Conven-
the Sea Convention: Mechanisms for change, 54 ICLQ 2005, pp. 563-584, at pp. 573-574. See
also in general Simon Marr, The precautionary principles in the Law of the Sea: Modern de-
cision-making in international law (Martinus Nijhoff, The Hague 2003); D. Vanderzwaag,
The precautionary principle and marine environmental protection: Slippery shores, rough seas
and rising normative tide, 33 ODIL 2002, pp. 165-188; A. Trouwborst, Evolution and status
of the precautionary principle in international law (Martinus Nijhoff, The Hague 2002); Pas-
cale Martin-Bidou, Le principe de précaution en droit international de l’environnement,
RGDIP 1999, pp. 631-666.
110
Scovazzi, supra note 45, at p. 406; Françoise Burhenne-Guilmin & Susan Casey-
Lefkowitz, The Convention on Biological Diversity: A hard-won global achievement, YBIEL
1992, pp. 43-59. Even the transition from ‘mankind’ to ‘humankind’ is worth noting.
111
Wolfrum & Matz, supra note 107, at p. 476; see also Jonathan B. Warner, Using global
themes to reframe the bioprospecting debate, 13 Indiana Journal of Global Legal Studies
2006, pp. 645-671.
tion would be set aside by the oldest rules of the Law of the Sea Convention
and the true meaning of article 311 LOSC, which purports to safeguard the
backbone of the law of the sea principles, will be lost. In essence, the con-
flict clauses in both treaties send the same message: the two systems are
complementary and mutually reinforcing as they exist in parallel. Indeed, a
true picture of the law of the sea today would require consideration of both
regulatory regimes and harmonisation of both the national and regional
measures taken in their implementation. This is understood by the Interna-
tional Seabed Authority, which has already suggested alternative solutions,
including a protocol to the LOS Convention with a view to add management
of the biological resources of the Area to the mandate of the Authority or
even a less formal ‘agreed interpretation’ of the Convention that would ex-
tend its coverage over such resources as well 112 and could even allow for
some type of benefit-sharing in accordance with the precepts of the Biodi-
versity Convention 113 .
The wider question remains: Can the Law of the Sea Convention address
needs and challenges that were clearly beyond the scope of the Convention
as originally drafted but certainly not beyond its subject-matter? Would a po-
tential evolution through interpretation also cover an extension or, even
worse, a change in the allocation of jurisdictional powers to States and the
international community as a whole? A negative answer, probably more cor-
rect on the basis of a strict legal argument, would fail to realise that the sys-
tem created by the Law of the Sea Convention is susceptible – and indeed
purposefully built – to influence subsequent law-making in matters affecting
the subject-matter of the Convention 114 . On the other hand, such latter-day
agreements add layers of nuance to the backbone of the mother Convention,
thus slowly but securely modifying it. As this never-ending process pro-
gresses, it would become difficult to identify the original contractual obliga-
tion and distinguish it from glossae irrupting from and erected upon it, most
of them acquiring a separate life of their own in another contractual ar-
rangement. At the same time, the living instrument that is the Law of the Sea
Convention would be able to better adjust to new realities and remain rele-
vant in the future.
112
Thus SBSTTA, Report, supra note 12, paragraphs 122-123; Scovazzi, supra note 15, at
pp. 96-97.
113
For such a suggestion see Leary, supra note 4, at pp. 175-181.
114
Boyle, supra note 109, at p. 580. Note also the comment by Budislav Vukas, The Law
of the Sea Convention and the law of treaties, Liber amicorum Günther Jaenicke zum 85. Ge-
burtstag (1998) pp. 631-654, at p. 649: “[the Law of the Sea Convention] pretends to play a
role similar to the one of article 103 of the UN Charter”.
CHAPTER 6
CHALLENGES TO JURISDICTION IN THE HIGH SEAS
The freedom of navigation in the high seas has been one of the most hal-
lowed principles of international law. Understood at first as an expression of
the laissez faire principles of an era of economic and political expansion, the
system operates on the dual parameters of equality of access to the high seas
coupled with an obligation of reciprocal respect for the exclusive jurisdiction
of the flag State. In the words of Sir William Scott in the Le Louis case:
“All nations being equal, all have an equal right to the uninterrupted use of the
unappropriated parts of the ocean for their navigation. In places where no lo-
cal authority exists, where the subjects of all States meet upon a footing of en-
tire equality and independence, no one State, or any of its subjects, has the
right to assume or exercise authority over the subjects of another ” 1 .
The underlying tension between the shrinking part of open spaces and the
ever encroaching coastal State jurisdiction is already evident in this early
formulation of the principle – and it will survive until the present day, long
after the tortuous negotiations on the Law of the Sea Convention has been
concluded. The starting point would also include an almost manichaeic un-
derstanding of the high seas as an area not subject to regulation, as compared
to the regulated parts closer to shore, is, however, considered undisputed.
That absolute freedom would only be fettered in later years, where the notion
of community welfare would appear, first as an obligation to abstain from
certain morally reprehensible and ultimately illegal acts at sea, the natural
example being piracy iure gentium; and ultimately, as a positive obligation
to safeguard the common good, such as the sustainable management of fish-
eries, the protection of the marine environment or even the common heritage
of mankind. The open seas would then be viewed not as an area beyond
regulation but rather as a common resource, to which access must be secured
on equal terms for the common benefit. Thus the great ideological exposition
in the 1960s would set out the principle as follows:
1
High Court of Admiralty, Le Louis, [1817] 165 Eng. Rep. 1464, at 1475 (my emphasis);
for a brief discussion see Thomas D. Lehrman, Enhancing the Proliferation Security Initiative:
The case for a decentralised non-proliferation architecture, 45 Virginia JIL 2004, pp. 223-276,
at pp. 229-230.
“The great bulk of the oceans of the world should be maintained as a common
resource, freely open to all peoples upon a basis of complete equality in coop-
erative pursuit of the greatest possible production and sharing of values” 2 .
This subtle change in perception, in words resonant of the era, did not pre-
vent the freedoms of the high seas, as best exemplified in the freedom of
navigation, to acquire even more emblematic status. During the negotiations
for the Law of the Sea Convention, the notion of ‘excessive claims to juris-
diction’ 3 came to counterbalance the strong pressure from coastal States to
expand seawards – indeed, in 1979 the United States established the ‘Free-
dom of Navigation’ programme as a shift through which all claims to ex-
tended jurisdiction would pass 4 .
The Law of the Sea Convention eventually reiterated the customary free-
dom of the high seas, expressed both in positive terms, namely enumerating
at least some of the protected activities 5 , and in a negative manner 6 , but it
also, crucially, apportioned jurisdiction in a manner that guaranteed some
element of control over acts undertaken therein. In practice, the flag State re-
tains full powers to act in the high seas as it sees fit, a liberty mitigated only
by the general obligation not to abuse such power, the outer limits of which
are delineated by the respective powers of the other States; in the words of
the Convention:
“Those freedoms shall be exercised by all States with due regard for the inter-
ests of other States in their exercise of the freedom of the high seas, and also
2
Myres S. McDougal & William T. Burke, The public order of the oceans – A contempo-
rary international law of the sea (1962) at ix.
3
For the proponents and content of the notion see J. Ashley Roach & Robert W. Smith,
Excessive maritime claims (1994).
4
For the presentation of the system see Marian Nash Leich, Contemporary practice of the
United States relating to international law: Law of the Sea (US Digest, Ch. 7, §1) United
States ocean policy, 77 AJIL 1983, pp. 619-620; George Victor Galdorisi, The United States
Freedom of Navigation Program. A bridge for international compliance with the 1982 UN
Convention on the Law of the Sea?, 27 ODIL 1996, pp. 399-408; John E. Noyes, The United
States, the Law of the Sea Convention and freedom of navigation, 29 Suffolk Transn’l LR
2005, p. 1-24.
5
Article 87 LOSC refers, “inter alia”, to the freedom of navigation, freedom of overflight,
freedom to lay submarine cables and pipelines, freedom to construct artificial islands and
other installations, freedom of fishing and freedom of scientific research. For the most recent
overview see David Anderson, Freedoms of the high seas in the modern law of the sea, in
David Freestone, Richard Barnes & David Ong, The Law of the Sea. Progress and prospects
(Oxford 2006) pp. 327-346; Tullio Scovazzi, The evolution of international law of the sea:
New issues, new challenges, 286 RCADI 2000, pp. 39-244.
6
Article 89 LOSC reads: “No State may validly purport to subject any part of the high seas
to its sovereignty”.
CHALLENGES TO JURISDICTION IN THE HIGH SEAS 159
with due regard for the rights under this Convention with respect to activities
in the Area” 7 .
This balance between freedom of action and responsibility for control,
once considered sacrosanct, has been challenged recently as new exigencies
come to fore – or, simply, old needs are perceived to have acquired increased
importance. Whether such claims would succeed to modify the customary al-
location of jurisdiction in the high seas, as further reiterated in the Law of
the Sea Convention, remains an open question.
1. THE LIMITS OF FLAG STATE JURISDICTION
It is clear that, under the Law of the Sea Convention, the order of the high
seas was entrusted primarily to the flag State, whose exclusive jurisdiction
could only be challenged
“in exceptional cases expressly provided for in international treaties or in this
Convention” 8 .
These circumstances would include piracy 9 and slave-trafficking 10 , both of-
fences under universal jurisdiction 11 , but exclude any other interference with
the ship without the consent of the flag State – at least in times of peace and
absent any action by the Security Council, acting under chapter VII of the
Charter 12 . Indeed, at closer inspection, one could find the text of the Conven-
7
Article 87 paragraph 2 LOSC. For the exercise of such rights in practice see Enzo Can-
nizzaro, Pouvoirs discrétionnaires des États et proportionnalité dans le droit de la mer, 106
RGDIP 2002, pp. 241-268.
8
9
Article 105 LOSC.
10
Article 99 LOSC.
11
See also the discussion supra, Part I, chapter 1.3.
12
Operations restricting freedom of navigation in the high seas under conditions of use of
force constitute a different universe, which I will not discuss here. For the briefest of over-
views see George Politakis, Modern aspects of the laws of naval warfare and maritime neu-
trality (London/New York 1998); Angelos Yokaris, ‘ +' ’, '+-
, ' '+'@' (2.8.1990-2.3.1991) [=Embargo in the sea
and the air and air and naval operations against Iraq], in L. Divani, L.-A. Sicilianos & A.
Skordas (eds.), ! ' . %
+ ! [=International crises and intervention by the international organisa-
tion. Persian Gulf and ex Yugoslavia] (Athens 1994) pp. 55-109; Wolff Heintschel von
Heinegg, Naval blockade, International Law across the spectrum of conflict. Essays in hon-
our of Professor L.C. Green on the occasion of his eightieth birthday (Naval War College,
Newport 2000) pp. 203-230; L. McLaughlin, United Nations mandated naval interdiction op-
tion riddled with safeguards of the high seas freedom 13 , even in these well-
established cases of possible intervention by third States. Thus, although un-
der article 105 of the Convention, “every State may seize a pirate ship”, it
does so at the risk of being liable for compensation to the flag State for any
loss or damage suffered therefrom, if such seizure
“on suspicion of piracy has been affected without adequate grounds” 14 .
The definition of piracy, reflecting the customary offence of piracy iure gen-
tium, remains also limited: It covers only the commission – and ancillary of-
fences thereto – of:
“(a) any illegal acts of violence or detention, or any act of depredation, com-
mitted for private ends by the crew or the passengers of a private ship or a pri-
vate aircraft, and directed:
(i) on the high seas, another ship or aircraft, or against persons or property
on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the juris-
diction of any State” 15 .
Even the right of boarding, the ancient right of visit and search already
codified under article 22 of the 1958 Convention on the High Seas 16 , which
apparently also includes the right to approach in order to ascertain the nation-
ality of the ship without the actual examination of papers or the boarding of
the ship 17 , is strictly applicable under the Law of the Sea Convention only
when:
“ (a) the ship is engaged in piracy;
(b) the ship is engaged in the slave trade;
erations in the territorial sea?, 51 ICLQ 2002, pp. 249-278; L.-A. Sicilianos, L’authorisation
par le Conseil de securité de recourir à la force, 106 RGDIP 2002, pp. 5-50.
13
For a comprehensive list of acts of permissive and non-permissive interference with
ships in the high seas see Michael A. Becker, The shifting public order of the oceans: Free-
dom of navigation and the interdiction of ships at sea, 46 Harvard ILJ 2005, pp. 131-230, at
pp. 172-175.
14
Article 106 LOSC.
15
Article 101 LOSC.
16
Convention on the High Seas, 450 UNTS 82; Anderson, supra note 5, at pp. 341-343.
17
For a thorough discussion on this point see Angelos Syrigos, Interdiction of vessels in
the high seas, in Anastasia Strati, Maria Gavouneli & Nikolaos Skourtos (eds.), Unresolved
issues and new challenges to the law of the sea. Time before and time after (Martinus Nijhoff,
Leiden/Boston 2006) pp. 149-201, at pp. 154-156; R. Reuland, Interference with non-national
ships in the high seas: Peacetime exceptions to the exclusivity rule of flag jurisdiction, 22
Vanderbilt J Transn’l L 1989, pp. 1161-1229, at pp. 1169-1171.
(c) the ship is engaged in unauthorised broadcasting and the flag State of
the warship has jurisdiction under article 109 [on jurisdiction to prosecute 18 ];
(d) the ship is without nationality; or
(e) through flying a foreign flag or refusing to show its flag, the ship is, in
reality, of the same nationality as the warship” 19 .
In all cases, the basis of such action is found in a deficiency of flag State
control and supervision or, even more directly, in a possible lack of proper
link with the flag State, as in the case of flagless and thus Stateless ships 20 .
Any other intervention on a vessel on the high seas is strictly dependent
upon the consent of the flag State. That is also true for the illicit traffic in
narcotic drugs or psychotropic substances, where, in spite the explicit in-
struction to the States to cooperate with a view to its suppression, any at-
tempt at verification and arrest of a suspect ship is made conditional upon
the authorisation of the flag State 21 . It is undoubtedly true that such require-
ments did not preclude the conclusion of a rich network of treaties policing
activities in the high seas: they include old and new bilateral agreements for
the suppression of arms trafficking 22 or formal and informal arrangements
for the interdiction of the drugs trade 23 . On the other hand, it is worth noting
that even such specialised agreements retain the primacy of flag State juris-
diction in the high seas. Thus, in a typical example, the 1988 UN Convention
against illicit traffic in narcotic drugs and psychotropic substances authorises
search and seizure of vessels engaged in narcotics trafficking on reasonable
grounds, whereupon:
18
Such jurisdiction is vested to the flag State of the ship, the State of registry of the instal-
lation, the State of which a person is a national, any State where the transmissions can be re-
ceived, or any State where authorised communication is suffering interference; article 109
paragraph 3 LOSC.
19
Article 110 LOSC.
20
1999) at pp. 213-214; A.W. Anderson, Jurisdiction over stateless vessels on the high seas: An
appraisal under domestic and international law, JMLC 1981-1982, pp. 323-343.
21
Article 108 LOSC.
22
See, for instance, the 1919 and 1925 Conventions on Arms Traffic between Great Britain
and France, as stated in Anna van Zwanenberg, Interference with ships on the high seas, 10
ICLQ 1961, pp. 785-817, at p. 791.
23
J. Siddle, Anglo-American co-operation in the suppression of drug smuggling, 31 ICLQ
1982, pp. 726-747; William C. Gilmore, Narcotics interdiction at sea: UK-US cooperation, 13
Marine Policy 1989, pp. 218-230; J.D. Stieb, Survey of United States jurisdiction over high
seas narcotics trafficking, 19 Georgia JICLQ 1989, pp. 119-147; Christina C. Sorensen, Drug
trafficking on the high seas: A move toward universal jurisdiction under international law, 4
Emory ILR 1990, pp. 207-230.
“a party should notify the flag State and request authorisation from the flag
State to take appropriate measures in regard to the vessels” 24 .
The primacy, if not exclusiveness, of flag State jurisdiction has become
thus the cornerstone on which the public order of the high seas is erected.
Consequently, the strength of the overall regulatory system would necessar-
ily rest upon the effectiveness of flag State jurisdiction. And therein lies the
problem as the well-known deficiencies of flag State jurisdiction may put the
overall security of international law at sea at risk. Instances of increased
‘disorder’ 25 abound, not necessarily limited to inefficient enforcement of
fisheries regulations 26 or an ineffective system of marine pollution control 27 ,
but rather extended to questions of State security stricto sensu. The exalted
status of such concerns impacts disproportionally upon the stability of the
system, both in terms of wider institutional arrangements and in the more
specific area of bilateral relations.
The international community is naturally painfully aware of this state of
affairs. Although it certainly condones a certain degree of flag State ‘indif-
ference’, yet it has increasingly developed mechanisms of control, whereby
the actions – or inaction, as the case may be – of the flag State is directly or
indirectly subjected to scrutiny, without at any time diverging from the prin-
ciple of flag State exclusivity. Such initiatives typically originate in the In-
ternational Maritime Organisation, which coordinates the parallel revision of
existing instruments and the adoption of new ones with a view to enhance
security in the high seas, under the additional impetus created by the threat
of terrorism 28 . The IMO Diplomatic Conference on Maritime Security in De-
cember 2002 resulted in a series of measures 29 , which share two characteris-
tics: first, they impose upon the flag State additional obligations, with a view
to make its purview of the ship and its activities, especially in the high seas,
more transparent and, consequently, capable of review; second, they create a
comprehensive system of risk assessment for both the ship and the port, thus
24
Article 17 of the Convention; adopted as ECOSOC Doc. E/Conf.82/15 of 19 December
1988, 28 ILM 1989, pp. 497-526.
25
For the opening salvo see William Langewiesche, Anarchy at sea, Atlantic Monthly,
September 2003, at p. 63.
26
See supra Part II, chapter 4.
27
See, for instance, Carmen Casado, Vessels on the high seas. Using a model flag State com-
pliance agreement to control marine pollution, 35 California Western ILJ 2005, pp. 203-236.
28
See IMO General Assembly Resolution A.924(22), Review of measures and procedures
to prevent acts of terrorism which threaten the security of passengers and crews and the
safety of ships, November 2001; available at <www.imo.org>
29
For a comprehensive presentation see <www.imo.org>; Hartmut Hesse & Nicolaos
Charalambous, New security measures for the international shipping community, 3 WMUJMA
2004, pp. 123-138, also available at <www.imo.org>.
effectively sharing the burden of control between the flag State and the port
State, in fact expanding coastal State jurisdiction over the ship. It is true that
primacy is accorded at all times to the flag State but it is significant that the
IMO Maritime Safety Committee felt compelled in December 2004 to issue
to all States a reminder of their obligation to notify flag States when exercis-
ing control and compliance measures 30 .
The first category of innovations concentrated on practical arrangements,
enhancing the effectiveness of the flag State. Thus, under Regulation 19 of
Chapter V of the 1974 International Convention on the Safety of Life at Sea
(SOLAS) 31 , adopted in 2000, all ships of 300 gross tonnage upwards en-
gaged in international voyages, cargo ships of 500 gross tonnage upwards
and all passenger ships must be fitted with ‘automatic identification systems’
(AIS), capable of providing automatically information about the ship to other
vessels and, crucially, to the coastal authorities 32 . The amendments to Chap-
ter V ‘Safety of navigation’, adopted during the 2002 Conference of Con-
tracting Parties to SOLAS and entered into force on 31 December 2004, fur-
ther expanded that obligation to ships, other than passenger ships and tankers,
of 300 gross tonnage upwards but less than 50.000 gross tonnage, thus al-
lowing for their long-range identification and tracking 33 . Such a tracking de-
vice does not only allow the flag State to trace the movements of its vessels
in the high seas but it also enables the coastal State to survey foreign ships in
a radius of over 200 nautical miles offshore, clearly beyond its jurisdictional
powers in an exclusive economic zone 34 . In addition, Regulation XI-1/3 has
30
See IMO MSC/Circ.1133, Reminder of the obligation to notify flag States when exercis-
ing control and compliance measures, 14 December 2004, available at <www.imo.org>
31
Adopted on 1 November 1974 and entered into force on 25 May 1980, SOLAS has been
repeatedly amended; for the text and latest developments see <www.imo.org>.
32
For the text and further developments see <www.imo.org>. See also the Guidelines for
the installation of a shipborne Automatic Identification System (AIS), agreed by the Sub-
Committee on the Safety of Navigation at its 48th session (8-12 July 2002) and approved by
the Maritime Safety Committee at its 76th session (2-13 December 2002); IMO SN/Circ.227,
6 January 2003; see also IMO General Assembly Resolution A.956(23) Amendments to the
Guidelines for the onboard operational use of shipborne automatic identification systems
(AIS), both available at <www.imo.org>.
33
Ships are also fitted with a Ship Security Alert System (SSAS), which would enable sea-
farers to notify the authorities and other ships of a possible terrorist highjacking: see also IMO
MSC/Circ.1072, Guidance on provision of ship security alert systems, 26 June 2003; IMO
Resolution MSC.147(77), Adoption of the Revised performance standards for a ship security
alert system; both available at <www.imo.org>; see also Hesse & Charalambous, supra note
29, at p. 128.
34
Letitia Diaz & Barry Hart Dubner, On the problem of utilizing unilateral action to pre-
vent acts of sea piracy and terrorism: A proactive approach to the evolution of international
law, 32 Syracuse JICL 2004-2005, pp. 1-50, at pp. 19-22.
been modified to require ships’ identification numbers to be permanently

marked and clearly visible on the ship’s hull or infrastructure 35 . A new Regu-
lation XI-1/5 requires all ships to be provided by the flag State with a Con-
tinuous Synopsis Record (CSR), a black box which will include an on-board
record of the history of the ship 36 . Moreover, in a display of coordinated ac-
tion, the International Labour Organisation revised the 1958 Seafarers’ Iden-
tity Documents Convention 37 , further enhancing the security overview of the
flag State over vessel-centred operations.
The second volley of measures concentrated on the adoption of the Inter-
national Ship and Port Facility Security Code (ISPS Code) as Regulation XI-
2/2 of the new Chapter XI-2 ‘Special measures to enhance maritime secu-
rity’ added to SOLAS 38 . The ISPS Code becomes thus part of the contractual
arrangement and is therefore binding upon the contracting parties to SO-
LAS 39 , although strictly speaking only Part A of the Code is mandatory
while Part B contains guidance on how to comply with the mandatory re-
quirements. In practical terms, the Code requires all flag States to ensure that
their ships are provided with a ship security alert system and issued with an
International Ship Security Certificate (ISSC) 40 . If the coastal State, which is
obligated to follow similar security arrangements in its ports facilities and
produce an approved Port Facility Security Plan (PFSP) 41 , has clear grounds
for believing that the ship is not in compliance, it enjoys a wide variety of
35
See also IMO General Assembly Resolution A.600(15), IMO ship identification number
scheme, available at <www.imo.org>
36
See IMO General Assembly Resolution A.959(23), Format and guidelines for the main-
tenance of the Continuous Synopsis Record (CSR); Diaz & Dubner, supra, at p. 19.
37
The Seafarers’ Identity Documents Convention (Revised), C185, was adopted on 19
June 2003 and entered into force on 9 February 2005; text and latest developments available
at <www.ilo.org>; see also Hesse & Charalambous, supra note 28, at pp. 130-131.
38
Adopted in December 2002, the ISPS Code entered into force on 1 July 2004; for the
text and latest developments see <www.imo.org>.
39
By March 2007, there were 158 member States to SOLAS, covering 98,8% of the world
tonnage; information available at <www.imo.org>. In December 2006, during its 82nd ses-
sion, the IMO Maritime Safety Committee began consideration of issues relating to the secu-
rity aspects of smaller ships, not falling within the ambit of the ISPS Code; ibid.
40
See IMO MSC/Circ.1111, Guidance relating to the implementation of SOLAS Chapter
XI-2 and the ISPS Code, 7 June 2004, including in Annex I: Guidance relating to the imple-
mentation of SOLAS Chapter XI-2 and the ISPS Code; and Annex II: IMO Resolution
MSC.159(78), Interim guidance on control and compliance measures to enhance maritime
security, 21 May 2004; available at <www.imo.org>. See also Regina Asariotis, Implementa-
tion of the ISPS Code. An overview of recent developments, 11 JIML 2005, pp. 266-287;
Hesse & Charalambous, supra note 29, at p. 127.
41
Ibid., at pp. 128-129. Information on which ports do have such a plan may be found in
ISPS Code Database, created by the IMO as part of its Global Integrated Shipping Informa-
tion System (GISIS), available at <www.imo.org>.
options: it may detain the ship until such time as it acquires such a certificate;
it may expel the ship from port; it may refuse the entry of the ship to port –
although the latter only when there are clear grounds for believing that the
ship poses an immediate thereat to the security or safety of persons or of
ships or other property and there are no appropriate means for removing the
threat. The implementation of the Code becomes thus yet another item in the
long list of the port State control procedures 42 and further enhances the juris-
dictional powers of the port State. The human parameters of port security,
covering the entire port area and not just designated port facilities, are ad-
dressed in the 2004 jointly elaborated and approved ILO/IMO Code of Prac-
tice on Security in Ports 43 .
Although these arrangements follow the allocation of jurisdiction between
the flag State and the coastal (and port) State agreed in the Law of the Sea
Convention, there is no doubt that their impact upon the traditional freedom
of the high seas is immediate and severe. The free movement of ships and
cargo with frequent unannounced diversions, which characterised a whole
era of international law and maritime practice, is effectively contained and
tracked at all times. It is significant that the latest amendments to SOLAS
Chapter V, making mandatory from 1 January 2008 the introduction of a
Long-Range Identification and Tracking (LRIT) system on passenger and
cargo ships, including high-speed craft of 300 gross tonnage upwards and
mobile offshore drilling units, allowing both the flag State and the coastal
State access to tracking information, specifically stated that they do not cre-
ate or affirm any new rights of States over ships beyond those existing in in-
ternational law, particularly the UN Convention on the Law of the Sea, nor
does it alter or affect the rights, jurisdiction, duties and obligations of States
in connection with the Law of the Sea Convention 44 .
2. EXPANDING JURISDICTION?
In the quest to remain true to the primacy of flag State jurisdiction in the
high seas, the Law of the Sea Convention has perhaps stayed too close to
42
Hesse & Charalambous, supra note 29, at p. 127; see also supra Part I, Chapter 2, 3.
43
The Code was adopted by the ILO Governing Body in March 2004 and the IMO Mari-
time Safety Committee in May 2004; text and latest information available at <www.imo.org>;
Hesse & Charalambous, supra note 28, at p. 131; Diaz & Dubner, supra note 32, at p. 21.
44
SOLAS Regulation V/19-1, text and further information available at <www.imo.org>.
See also IMO Resolution MSC.211(81), Arrangements on the timely establishment of the
long-range identification and tracking system, 19 May 2006; IMO MSC/Circ.1219, Interim
LRIT technical specifications and other matters, 9 January 2007; ibid.
customary solutions clearly inadequate for the present circumstances. There

is no doubt that this choice was made consciously by the drafters. This is not
a case of subsequent developments in technology revealing a gap in the
Convention; rather it constitutes an attempt to rein in developments, existing
at the time of the negotiation, which the drafters did not consider appropriate
or welcome. A possible expansive construction of the relevant rules becomes
therefore almost an exercise in contra legem interpretation of the Convention.
Invariably, and true to form, the States parties to the Convention have sought
to complement the missing parts by resorting to new contractual arrange-
ments.
The typical example remains piracy – yet again. Under the Law of the Sea
Convention, the definition of piracy retains the traditional elements of a two-
vessel requirement and an attack perpetrated “for private ends”. Any attempt
to read into attacks
“against a ship, aircraft, persons or property in a place outside the jurisdiction
of any State” 45
a single-ship capacity has been rebuffed, as the formulation aspires to a total
lack of jurisdiction, reminiscent of an era of res nullius, rather than a discus-
sion on the particular subject to jurisdiction 46 . Equally unsuccessful, but not
for want of trying, were attempts to consider all political acts of unauthorised
violence, undertaken “without any other object than to gratify his lawless
appetite for mischief” 47 , as piracy. Consequently, the Law of the Sea Con-
vention was clearly unable to address a terrorist situation in 1988, where per-
sons known or unknown highjacked the Achille Lauro, a ship they had boarded
posing as tourists, and threatened the passengers, eventually killing one of
them. In the aftermath of that attack, the IMO took the initiative 48 to have the
Convention on Suppression of Unlawful Acts against the Safety of Maritime
45
Article 101(a)(ii) LOSC.
46
Thus also José Luis Jesus, Protection of foreign ships against piracy and terrorism at sea:
Legal aspects, 18 TIJMCL 2003, pp. 363-400, at p. 377.
47
Thus Justice Story in United States v. Brig Malek Adhel, 43 US (2 How.) 210, at p. 232
(1844). See also the discussions of the International Law Commission on the preparation of
the 1958 High Seas Convention: “The intention to rob (animus furandi) is not required. Acts
of piracy may be prompted by feelings of hatred or revenge, and not merely by the desire for
gain”, 2 YBILC 1956, at p. 282.
48
The IMO had already reacted to the incident adopting IMO General Assembly Resolu-
tion A.585(14), Measures to prevent unlawful acts which threaten the safety of ships and the
security of their passengers and crew, 1985; and IMO MSC/Circ.443, Measures to prevent
unlawful acts against passengers and crews on board ships, 1986; both available at <www.imo.org>.
Navigation to Certain Piratical or Armed Robbery Acts (the SUA Conven-

tion) 49 concluded.
The SUA Convention undertook a major expansion exercise in respect of
the scope of activities brought within its regulatory coverage. The offence
becomes disassociated from the two-vessel requirement and concentrates
rather on activities directly against the ship, its cargo, its safe navigation,
persons on board and maritime navigational facilities supporting it 50 – the en-
tire vessel-centred universe. The geographical scope of the offence is also
expanded, this time using rather old-fashioned wording: Instead of referring
to the ‘high seas’ or ‘areas outside the jurisdiction of any State’, as the Law
of the Sea Convention does, the SUA Convention applies summarily to ships
navigating
“through or from waters beyond the outer limit of the territorial sea of a single
State, or the lateral limits of its territorial sea with adjacent States” 51 .
Zones in the sea thus being summarily set aside, the allocation of jurisdic-
tion is also expanded beyond the flag State to also include a multitude of
other States with direct or indirect connection to the offence: the State in the
territory of which the offence occurred, including its territorial sea; the State
49
1678 UNTS 29004; Malvina Halberstam, Terrorism on the high seas: The Achille Lauro,
piracy and the IMO Convention on maritime safety, 82 AJIL 1988, pp. 269-309; Tullio Treves,
The Convention for the suppression of unlawful acts against the safety of maritime navigation,
2 Singapore JICL 1998, pp. 541-556.
50
Article 3 of the SUA Convention reads: “1. Any person commits an offence, if that per-
son unlawfully and intentionally: (a) seizes or exercises control over a ship by force or threat
thereof or any other form of intimidation; or (b) performs an act of violence against a person
on board a ship if that act is likely to endanger the safe navigation of that ships; or (c) de-
stroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe
navigation of that ship; or (d) places or causes to be placed on a ship, by any means whatso-
ever, a device or substance which is likely to destroy that ship, or cause damage to that ship or
its cargo which endangers or is likely to endanger the safe navigation of that ship; or (e) de-
stroys or seriously damages maritime navigational facilities or seriously interferes with their
operation, if any such act is likely to endanger the safe navigation of a ship; or (f) communi-
cates information which he knows to be false, thereby endangering the safe navigation of a
ship; or (g) injures or kills any person, in connection with the commission or the attempted
commission of any of the offences set forth in subparagraphs (a) to (f). 2. Any person also
commits an offence if that person: (a) attempts to commit any of the offences set forth in
paragraph 1; or (b) abets the commission of any of the offences set forth in paragraph 1 perpe-
trated by any person or is otherwise an accomplice of a person who commits such an offence;
or (c) threatens, with or without a condition, as is provided for under national law, aimed at
compelling a physical or juridical person to do or refrain from doing any act, to commit any
of the of fences set forth in paragraph 1, subparagraphs (b), (c) and (e), if that threat is likely
to endanger the safe navigation of the ship in question”; text also available at <www.imo.org>.
51
Article 4 of the SUA Convention.
of nationality of the offender; or the State of the nationality of the victim; or

even any other State,
“when the offence is committed in an attempt to compel that State to do or ab-
stain from doing any act” 52 .
In so doing, the SUA Convention uses the full house of the traditional bases
of jurisdiction, in essence bypassing the exclusive jurisdiction of the flag
State for activities undertaken in the high seas.
It is fair to say that the SUA Convention was not a splendid example of
immediate legislative success. Once the immediate reasons for its conclusion
were forgotten, the Convention was put to hibernation with almost no other
instances of application. It was again resurrected with the resurgence of the
terrorist threat in 2001, as part of the international arsenal available for the
fight against terrorism 53 . The resulting review exercise was undertaken not in
light of the law-of-the-sea instruments anymore but rather under the influ-
ence of the increasing corpus of anti-terrorism conventions. And it is mostly
in this light that any attempt to evaluate its impact has been so far under-
taken.
The 2005 Protocol to the SUA Convention adds to the definition of the of-
fence two new parameters. First, it includes a general hold-all clause penalis-
ing any act, whose
“purpose … by its nature or context, is to intimidate a population or to compel
a government or an international organisation to do or to abstain from doing
any act” 54 .
Second, it expressly adds the new offence of transportation of biological,
chemical and nuclear (BCN) weapons of mass destruction (WMD), with the
exception of activities carried out by States parties to the relevant treaties 55 :
amid them the Treaty on the Non-Proliferation of Nuclear Weapons 56 , the
52
Article 6 of the SUA Convention.
53
Note also UN General Assembly Resolution 55/7, Oceans and the Law of the Sea, 27
February 2001, paragraph 37, urging States to become party to the SUA Convention and fur-
ther ensure its effective implementation; UN Doc. A/RES/55/7, text available at <www.un.
org>; see also Sean D. Murphy, UN Security Council on non-proliferation of WMD, 98 AJIL
2004, pp. 606-608.
54
Article 3bis of the SUA Protocol; IMO Doc. LEG/CONF.15/DC/1, 13 October 2005; it
opened for signature on 14 February 2006; also available at <www.imo.org>. For a first reac-
tion see Françoise Odier, Convention relative à la répression d’actes illicites contre la sécurité
de la navigation maritime, 10 ADM 2005, pp. 299-306; Nathalie Klein, Legal implications of
Australia’s maritime identification system, 55 ICLQ 2006, pp. 337-368, at pp. 348-349.
55
Ibid.
56
Concluded in London, Moscow and Washington on 12 June/1 July 1968 and entered into
force on 5 March 1970, 7 ILM 1968, pp. 809-817. The NPT has been reviewed twice in 1995
Convention on the development, production and stockpiling of bacteriologi-

cal and toxic weapons and on their destruction 57 , the Convention on the pro-
hibition of development, production, stockpiling and use of chemical weap-
ons and on their destruction 58 . In so doing, it complements the definitions of
and 2000 and a third major review conference is being prepared for 2010; for further informa-
tion and developments see <www.iaea.org>. See also Mohamed Ibrahim Shaker, The evolv-
ing international regime of nuclear non-proliferation, 321 RCADI 2006, pp. 9-202; Tuiloma
Neroni Slade, The 1995 review and extension of the Treaty on the non-proliferation of nu-
clear weapons, 5 RECIEL 1996, pp. 246-252; Miguel Marín Bosch, The Non-Proliferation
Treaty and its future, in Laurence Boisson de Chazournes (ed.), International law, the Inter-
national Court of Justice and nuclear weapons (Cambridge 1999) pp. 375-389; James F.
Keely, Compliance and the Non-Proliferation Treaty, in Canadian Council on International
Law (ed.), Treaty compliance: Some concerns and remedies (Kluwer Law International, The
Hague 1998) pp. 21-34; Maurice Andem, The Treaty on the Non-Proliferation of Nuclear
Weapons (NPT). Some reflections in the light of North Korea’s refusal to allow international
inspection of its nuclear facilities, 64 Nordic JIL 1995, pp. 575-590; Raven Winters, Prevent-
ing repeat offenders. North Korea’s withdrawal and the need for reviions to the Nuclear Non-
Proliferation Treaty, 38 Vanderbilt J Transn’l L 2005, pp. 1499-1529.
57
Concluded in London, Moscow and Washington on 16 December 1971/10 April 1972, it
entered into force on 26 March 1975, 1015 UNTS 163, 11 ILM 1972, pp. 309-315; text and
latest developments available at <www.opbw.org>. For an early overview see Eric Stein, Im-
pact of new weapons technology on international law: selected aspects, 133 RCADI 1971-II,
pp. 223-387; see also Onno Kervers, Strengthening compliance with the Biological Weapons
Convention. The draft protocol, 8 Journal of Conflict & Security Law 2003, pp. 161-200;
Marie-Isabelle Chevrier (ed.), The implementation of legally binding measures to strengthen
the Biological and Toxin Weapons Convention (Kluwer, Dordrecht 2004); Robert D. Pinson,
Is nano-technology prohibited by the Biological and Chemical Weapons Conventions?, 22
Berkeley JIL 2004, pp. 279-309; Maurizio Martellini, Kathryn MacLaughlin & Piers Millett,
Poisoning humanity. Bioterrorism, biological weapons and non-State actors, 61 La Commu-
nità internazionale 2006, pp. 65-92.
58
Concluded in Paris on 13 January 1993, it entered into force on 29 April 1997, 32 ILM
1993, pp. 800-873; the Convention has currently an almost universal adherence with 182
member States and is administered by the Organisation on the Prohibition of Chemical
Weapons; for more information and developments see <www.opcw.org>. For an overview
see Walter Krutzsch & Ralf Trapp, A commentary on the Chemical Weapons Convention
(Martinus Nijhoff, Dordrecht 1994); Daniel Bardonnet (éd.), La Convention sur l’interdiction
et l’élimination des armes chimiques. Une percée dans l’entreprise multilatérale du désar-
mement (Martinus Nijhoff, Dordrecht 1995); Natalino Ronzitti, La Convention sur
l’interdiction de la mise au point, de la fabrication, du stockage et de l’emploi des armes chi-
miques et sur leur destruction, RGDIP 1995, pp. 881-928; J.P. Perry Robinson, Implementing
the Chemical Weapons Convention, 72 International Affairs 1996, pp. 73-89; Kevin J. Fitz-
gerald, The Chemical Weapons Convention: inadequate protection from chemical warfare, 20
Suffolk Transn’l LJ 1997, pp. 425-448; Michael Bothe (ed.), The new Chemical Weapons
Convention. Implementation and prospects (Kluwer Law International, The Hague 1998);
Douglas S. Scott, The compliance regime under the Chemical Weapons Convention. A sum-
mary and analysis, in Canadian Council on International Law (ed.), supra note 56, pp. 87-
132; Birnal N. Patel, The accountability of international organisations: A case study of the
Organisation for the Prohibition of Chemical Weapons, 13 Leiden JIL 2000, pp. 571-597; Urs
A. Cipolat, The new Chemical Weapons Convention and export controls: Towards greater
biological and chemical weapons to be found in the Bacteriological and

Toxin Convention and the Chemical Weapons Convention, respectively: both
sets of definitions remain compatible: indeed, the SUA Protocol seems to
use the conventional definitions as headlines 59 although it avoids a wholesale
reference to them. At the same time, the new transport offence covers a
wider range of possible chemical weapons and their uses that those envis-
aged in the original convention while it allows for its transfer in circum-
stances not directly involving warfare. Thus, the transfer of chemical weap-
ons intended for
“… (C) military purposes not connected with the use of chemical weapons and
not dependent on the use of the toxic properties of chemicals as a method of
warfare; or
(D) law enforcement, including domestic riot control purposes; …” 60 ,
remains excluded from the scope of the SUA Convention, as amended by the
2005 Protocol. In contrast the definition of ‘biological weapons’ is a copy of
the original one and encompasses:
“… (1) microbial or other biological agents, or toxins whatever their origin or
method of production, of types and in quantities that have no justification for
prophylactic, protective or other peaceful purposes; or
(2) weapons, equipment or means of delivery designed to use such agents or
toxins for hostile purposes or in armed conflict.” 61
It is significant, however, that even in that context, the SUA Protocol re-
tains the exclusive flag State jurisdiction in the high seas. The new Article
multilateralism?, 21 Michigan JIL 2000, pp. 393-444; Megan Eshbaugh, The Chemical
Weapons Convention: with every step forward, we take two steps back, 18 Arizona JICL
2001, pp. 209-244; Matthew Meselson & Julian Perry Robinson, A draft convention to pro-
hibit biological and chemical weapons under international criminal law, 28 Fletcher Forum of
World Affairs 2004, pp. 57-71; Ramesh Chandra Thakur & Ere Haru (eds.), The Chemical
Weapons Convention. Implementation, challenges and opportunities (UNUP, New York 2006).
59
Compare article II of the Chemical Weapons Convention, which reads: “’Chemical
weapons’ means the following, together or separately: (a) Toxic chemicals and their precur-
sors, except where intended for purposes not prohibited under this Convention, as long as the
types and quantities are consistent with such purposes; (b) Munitions and devices, specifically
designed to cause death or other harm through the toxic properties of those toxic chemicals
specified in subparagraph (a), which could be released as a result of the employment of such
munitions and devices; (c) Any equipment specifically designed for use directly in connec-
tion with the employment of munitions and devices specified in subparagraph (b)”; ibid.
60
Article 1(d)(ii) of the SUA Convention as amended by the SUA Protocol.
61
Article 1(d)(i) of the SUA Convention as amended by the SUA Protocol and article I of
the Bacteriological Weapons Convention; supra note 35.
8bis establishes a right of boarding “on reasonable grounds to suspect” 62 ,

along the lines of the Law of the Sea Convention, upon authorisation by the
flag State. There is certainly a nuance in the strong obligation to cooperate
“to the fullest extent possible to prevent and suppress unlawful acts covered by
[the] Convention, in conformity with international law, and shall respond to
request pursuant to this article as expeditiously as possible” 63 .
Indeed, the requirement of the prior consent of the flag State may be elimi-
nated altogether: States so indicating at the time of ratification are presumed
to have accorded their consent for such boarding,
“if there is no response … within four hours of acknowledgement of receipt of
a request to confirm nationality” 64 .
It is therefore clear that even under circumstances where the Law of the
Sea Convention is – by choice – deficient, the international community, hav-
ing acknowledged the need to react, prefers to remain within the boundaries
set up by it. The exclusive jurisdiction of the flag State in the high seas has
maintained its attraction and, ultimately, its usefulness, at least at the level of
collective responses.
3. LIMITATIONS TO FLAG STATE EXCLUSIVITY?
Flag State jurisdiction in the high seas does not preclude any contractual
arrangements on cooperation or even a delegation of the powers to exercise
such jurisdiction to another State. Indeed, article 110 of the Law of the Sea
Convention, delineating the exclusivity of flag State jurisdiction, starts with
an overriding clause:
“Except where acts of interference derive from powers conferred by the
treaty, ….”.
The latest cooperative effort along those lines is the Proliferation Security
Initiative (PSI) 65 , announced in May 2003 as an attempt to prevent the prolif-
62
Article 8bis paragraph 4 of the SUA Convention as amended by the SUA Protocol; see
also the standard for boarding established in article 110 LOSC: “…unless there is reasonable
ground for suspecting …”.
63
Article 8bis paragraph 1 of the SUA Convention as amended by the SUA Protocol.
64
Article 8bis paragraph 5(d) of the SUA Convention as amended by the SUA Protocol.
65
For an overview see Michael Byers, Policing the high seas: The Proliferation Security
Initiative, 98 AJIL 2004, pp. 526-545; Ian Patrick Barry, The right of visit, search and seizure
of foreign-flagged vessels on the high seas pursuant to customary international law. A defence
of the Proliferation Security Initiative, 33 Hofstra LR 2004, pp. 299-330.
eration of weapons of mass destruction (WMD) by sea, land and air. It as-
sumes the form of a Statement of intentions, rather than a formal treaty,
whereby a number of States 66 undertake to abide by a set of ‘Interdiction
Principles’ 67 . The participating States have thus undertaken the obligation to
adopt effective measures to combat WMD proliferation, delivery systems or
related materials 68 , cooperate on information exchange and coordination of
such activities 69 , review domestic law to strengthen these efforts and further
“work to strengthen when necessary relevant international laws and frame-
works in appropriate ways to support these commitments” 70 .
Amid the measures employed to pursue these objectives, the participating
States undertake the obligation:
“[a]t their own initiative or at the request and good cause shown by another
State, to take action to board and search any vessel flying their flag in their in-
ternal waters or territorial seas, or areas beyond the territorial sea of any other
State, that is reasonably suspected of transporting such cargoes to or from
States or non-State actors of proliferation concern and to seize such cargoes
that are identified” 71 .
This reciprocal authorisation to exercise the jurisdictional powers of the flag
State is certainly not new in international law. Indeed, it has been repeatedly
used in the coordination efforts on drug trafficking mandated by the Law of
the Sea Convention: a total of 23 bilateral agreements have been agreed be-
tween the US and Caribbean and Central American States, including agree-
ments with Haiti 72 , Honduras 73 , Nicaragua 74 and Guatemala 75 . Some of these
66
Whereas the original parties were Australia, France, Germany, Italy, Japan, the Nether-
lands, Poland, Portugal, Spain, the United Kingdom and the United States, the current list is
considerably more extensive; available at <www.state.gov>. Note also the support offered by
the European Union, with an express reference to the need for Security Council action: Coun-
cil of the European Union, EU Strategy against proliferation of weapons of mass destruction
(2003), text available at <www.europa.eu>.
67
Full text available at <www.state.gov>.
68
Interdiction Principles, paragraph 1, ibid.
69
Ibid., paragraph 2.
70
Ibid., paragraph 3.
71
Ibid., paragraph 4(b).
72
Agreement between the United States of America and the Republic of Haiti concerning
cooperation to suppress illicit maritime drug traffic, concluded on 17 October 1997; 1997
UST Lexis 128.
73
Agreement between the United States of America and the Republic of Honduras con-
cerning cooperation for the suppression of illicit maritime traffic in narcotic drugs and psy-
chotropic substances, concluded on 29 March 2000; 2000 UST Lexis 159.
treaties are ‘ship-rider agreements’, whereby an official of the host State is

placed aboard a US Coast Guard vessel, thus being at hand to authorise in-
terdiction of ships flying the host’s flag in the high seas and/or pursue such
ship in the host’s territorial waters 76 . Indeed, in a streamlining effort further
fuelled by the wish to avoid the risks of bilateralism, the Organisation of
American States has even proposed a multilateral model ship-rider agree-
ment 77 .
The PSI framework being just that, the US actively pursued the drug
agreements template to conclude specific mutual boarding agreements with
all the major flag States with an open registry. The first such agreement was
concluded with Liberia 78 , which has the second largest shipping registry in
the world but no navy! Nevertheless, although reciprocity would be difficult
to achieve in practice 79 , the agreement remains perfectly legal. Indeed, the
same pattern was followed 80 with similar agreements with Panama 81 , Belize 82 ,
74
Agreement between the Government of the United States of America and the Govern-
ment of the Republic of Nicaragua concerning cooperation to suppress illicit traffic by sea and
air, concluded on 1 June 2001; 2001 UST Lexis 63.
75
ment of the Republic of Guatemala concerning cooperation to suppress illicit traffic in nar-
cotic drugs and psychotropic substances by sea and air, concluded on 19 June 2003; text
available at <usembassy.state.gov/Guatemala>.
76
See Byers, supra note 65, at pp. 538-539.
77
Draft Agreement concerning cooperation in suppressing illicit maritime trafficking in
narcotic drugs and psychotropic substances in the Caribbean Sea, OAS Doc. OAS/ser.L/XIV
2.28 (2000), available at <www.oas.org>; see also Lehrman, supra note 1, at p. 251.
78
ment of the Republic of Liberia concerning cooperation to suppress the proliferation of weap-
ons of mass destruction, their delivery systems and related materials by sea, done on 11 Feb-
ruary 2004 and entered into force on 9 December 2004; text available at <www.state.gov>.
79
For a vehement critique see Timothy C. Perry, Blurring the ocean zones: The effect of
the Proliferation Security Initiative on the customary international law of the sea, 37 ODIL
2006, pp. 33-53, who talks of a “Potemkin village” and the creation of ‘docile bodies’, at p.
40; the “almost farcically diluted conceptions of consent and flag State” and a “new multilat-
eralism” representing “a hawkish unilateralist device in dove’s clothing”, at p. 43.
80
See also Fabio Spadi, Bolstering the Proliferation Security Initiative at sea. A compara-
tive analysis of ship-boarding as a bilateral and multilateral implementing mechanism, 75
Nordic JIL 2006, pp. 249-278.
81
Amendment to the Supplementary Arrangement between the Government of the United
States of America and the Government of the Republic of Panama to the Arrangement be-
tween the Government of the United States and the Republic of Panama for support and assis-
tance from the US Coast Guard for the National Maritime Service of the Ministry of Govern-
ment and Justice, done on 12 May 2004 and entered into force 1 December 2004; text avail-
able at <www.state.gov>.
82
ment of Belize concerning cooperation to suppress the proliferation of weapons of mass de-
the Marshall islands 83 , Croatia 84 and – quite recently – Cyprus 85 and Malta 86 .
All these agreements include simplified procedures for the granting of con-
sent to board 87 , limiting reaction time from 2 hours in the Liberia 88 and Pa-
nama 89 agreements to 4 hours in the Marshall islands 90 , the Malta 91 or the
Cyprus 92 agreements.
Comprehensive though this network becomes, the mutual exchange of flag
State jurisdiction may only extend to boarding rights – not the right to seize
the cargo of the vessel. A suitable legal basis must therefore be sought else-
where. On 28 April 2004 the Security Council unanimously adopted resolu-
tion 1540 on the prevention of WMD to non-State actors 93 , which obligates
struction, their delivery systems and related materials at sea, done on 4 August 2005; text
available at <www.state.gov>.
83
ment of the Republic of the Marshall islands concerning cooperation to suppress the prolifera-
tion of weapons of mass destruction, their delivery systems and related materials at sea, done
on 13 August 2004 and entered into force on 24 November 2004; text available at
<www.state.gov>.
84
ment of the Republic of Croatia concerning cooperation to suppress the proliferation of weap-
ons of mass destruction, their delivery systems and related materials, done on 1 June 2005;
ext available at <www.state.gov>.
85
ment of the Republic of Cyprus concerning cooperation to suppress the proliferation of weap-
ons of mass destruction, their delivery system and related materials by sea, done on 25 July
2005 and entered into force 12 January 2006; text available at <www.state.gov>.
86
ment of Malta concerning cooperation to suppress the proliferation of weapons of mass de-
struction, their delivery system and related materials by sea, done on 15 March 2007; text
available at <www.state.gov>.
87
For further discussion on the content of such agreements see Becker, supra note 13, at
pp. 181-186; Stuart Kaye, Freedom of navigation in a post 9/11 world: Security and creeping
jurisdiction, in David Freestone, Richard Barnes & David Ong, The Law of the Sea. Progress
and prospects (Oxford 2006) pp. 347-364, at pp. 358-359.
88
Article 4 paragraph 3(b)-(c) of the Liberia Agreement, supra note 78.
89
Article 4 paragraph 3(b)-(c) of the Panama Agreement, supra note 81.
90
Article 4 paragraph 3(b)-(d) of the Marshall islands Agreement, supra note 83.
91
Article 5 paragraph 3(b)-(c) of the Malta Agreement, supra note 86.
92
Article 4 paragraph 3(b)-(c) of the Cyprus Agreement, supra note 85.
93
UN Doc. S/RES/1540 (2004); text available at <www.un.org>. Note also that for the
purposes of the resolution, a non-State actor is any “individual or entity, not acting under the
lawful authority of any State in conducting activities which come within the scope of [the]
resolution”; ibid. For a general overview of the resolution, its drafting history and scope see
Serge Sur, La résolution 1540 du Conseil de sécurité (28 avril 2004): Entre la prolifération
des armes de destruction massive, le terrorisme et les acteurs non étatiques, RGDIP 2004, pp.
855-882.
“… all States [to] take and enforce effective measures to establish domestic
controls to prevent the proliferation of nuclear, chemical or biological weapons
and their means of delivery, including by establishing appropriate controls
over related materials …” 94 .
Although the Security Council was at pains not to compromise in any way
the effectiveness of the main weapons conventions, including especially the
Non-Proliferation Treaty 95 and the concurrent obligation to pursue nuclear
disarmament 96 , as reiterated by the International Court of Justice in the Advi-
sory Opinion on the Legality of the threat or use of nuclear weapons 97 , the
resolution leaves no doubt that the proliferation of nuclear, chemical or bio-
logical weapons is successfully penalised. However, Resolution 1540 (2004)
does not refer to interdiction of vessels in the high seas or elsewhere: it only
“[r]ecognises that some States may require assistance in implementing the
provisions of this resolution within their territories and invites States in a posi-
tion to do so to offer assistance as appropriate in response to specific requests
to the States lacking the legal and regulatory infrastructure, implementation
experience and/or resources for fulfilling the above provisions” 98 ;
and further
“calls upon all States, in accordance with their national legal authorities and
legislation and consistent with international law, to take cooperative action to
prevent illicit trafficking in nuclear, chemical or biological weapons, their
means of delivery and related materials” 99 .
94
Ibid., paragraph 3.
95
Indeed, article VI of the Treaty on the Non-Proliferation of Nuclear Weapons reads:
“Each of the parties to the Treaty undertakes to pursue negotiations in good faith on effective
measures relating to cessation of the nuclear arms race at an early stage and to nuclear disar-
mament and on a treaty on general and complete disarmament under strict and effective inter-
national control.”; see supra note 56.
96
For the briefest of overviews see Paul Dahan, La Conférence du désarmement : fin de
l’histoire ou histoire d’une fin?, AFDI 2002, pp. 196-213; Serge Sur, L’entreprise du désar-
ment au péril du nouveau contexte de sécurité, AFDI 2004, pp. 727-747; Peter Hulsroj, Jus
cogens and disarmament, 46 Indian JIL 2006, pp. 1-11; Mark Searl, Natural law, international
law and nuclear disarmament, 33 Ottawa LR 2001/2002, pp. 271-300; Nenne Bodel, Arms
control and disarmament agreements, SIPRI Yearbook 2005, pp. 771-795.
97
ICJ, Legality of the threat or use of nuclear weapons, advisory opinion of 8 July 1996,
ICJ Reports 1996, paragraph 99: “The legal import of that obligation goes beyond that of a
mere obligation of conduct; the obligation involved here is an obligation to achieve a precise
result – nuclear disarmament in all its aspects – by adopting a particular course of conduct,
namely the pursuit of negotiations on the matter in good faith”.
98
Resolution 1540 (2004), supra note 93, paragraph 7 (second italics my emphasis).
99
Ibid., paragraph 10 (second italics my emphasis).
It is quite clear that the retroactive 100 legitimisation thus requested is not en-
tirely present although subsequent PSI ship boarding agreements explicitly
refer to it. The foundation of all PSI cooperation and especially the PSI
boarding agreements remains the will of the parties, which as flag States
have consented to a mutual expansion of their jurisdictional powers in the
high seas. There has been no authorisation to use force in pursuit of the ob-
jectives of either Resolution 1540 (2004) or the PSI machinery 101 . Attempts
to justify interdiction of ships in the high seas as a countermeasure under-
taken in the collective interest seem somewhat excessive, irrespective of the
dubious nature of the proposition 102 . Nor is there sufficient grounds for any
State to take ‘lawful measures’, presumably including the right to visit and
arrest a vessel, under article 54 of the Articles on State Responsibility 103 . In
the present case, and in contrast to the fisheries regulations already discuss-
ed 104 , the obligation breached is not
“owed to a group of States, including that State, and […] established for the
protection of a collective interest of the group; or […] owed to the interna-
tional community as a whole” 105 .
It has been suggested that, as the WMD proliferation constitutes a threat to
peace and security, the category of ‘injured State’ covers all States, thus enti-
tling them to employ countermeasures – and even engage in self-defence 106 –
100
At the time of the adoption of the resolution, there have been already five rounds of
talks in Madrid, Brisbane, Paris, London and Lisbon, after the initial announcement in Kra-
kow, Poland on 31 May 2003; see Byers, supra note 40, at p. 528; Daniel H. Joyner, Prolif-
eration Security Initiative: Nonproliferation, counterproliferation and international law, 30 Yale
JIL 2005, pp. 507-548, at pp. 537-538.
101
Ibid., at pp. 539-541.
102
Indeed the Commentary to the to the Articles on State Responsibility expressly states:
“At present there appears to be no clearly recognised entitlement of States referred to in arti-
cle 48 to take countermeasures in the collective interest”; Commentary, paragraph (6), in
James Crawford, The international Law Commission’s Articles on State Responsibility. Intro-
duction, text and commentaries (Cambridge 2002) at p. 305; Linos-Alexandre Sicilianos, La
codification des contre-mesures par la Commission du droit international, 38 RBDI 2005, pp.
447-500, at pp. 463-465.
103
Articles on State Responsibility, approved by UN General Assembly resolution 56/83,
UN Doc. /RES/56/83 (2001); text also available at <www.un.org>.
104
See the discussion in Part II, Chapter 4, 3. See also Rosemary Rayfuse, Regulation and
enforcement in the law of the sea. Emerging assertions of a right to non-flag State enforcement
in the high seas fisheries and disarmament contexts, 24 Australian YBIL 2005, pp. 181-200;
Robin Warner, Jurisdictional issues for navies involved in enforcing multilateral regimes be-
yond national jurisdiction, 14 TIJMCL 1999, pp 321-332.
105
Article 48 paragraph 1 of the Articles on State Responsibility.
106
Douglas Guilfoyle, Proliferation Security Initiative: Interdicting vessels in international
waters to prevent the spread of weapons of mass destruction, 29 Melbourne ULR 2005, pp.
733-764, at pp. 750-760. For the briefest of a glimpse in the vast issue of self-defence, espe-
in case of a possible breach 107 . However, the non-proliferation obligation set

out in resolution 1540 (2004), binding as it may undeniably be, is not owed
to any member of the world community but rather directly to the Security
Council; indeed, any breach of the resolution would constitute a breach by
the State concerned of its obligation to “accept and carry out the decisions of
the Security Council” under articles 25 and 48 of the Charter 108 .
Other considerations aside, for instance whether a coastal State may assert
jurisdiction on a vessel passing in innocent passage for the purposes of PSI,
the system of mutual authorisation has been considered sufficiently success-
ful as to be offered for repetition in other contexts as well. They include not
only the policing of other types of prohibited weapons 109 and environmental
security 110 , but also a possible application in the fisheries context 111 – a proto-
col to the Law of the Sea Convention has actually be suggested as an addi-
tional means to facilitate US accession to the Convention 112 . Suffice it to say,
at this point, that whatever the eventual use of the PSI framework, the start-
ing point remains the jurisdiction of the flag State.
4. A SOLID FOUNDATION
The Law of the Sea Convention has consistently followed a path of inno-
vation through adherence to accepted principles. At the end of the first gen-
eration of implementation, no other principle appears as solid, in law and in
fact, as the venerable old horse of flag State jurisdiction in the high seas.
cially against terrorist attacks, see Sean D. Murphy, Terrorism and the concept of ‘armed at-
tack’ in article 51 of the UN Charter, 43 Harvard ILJ 2002, pp. 41-51; Christine Gray, Inter-
national law and the use of force (Oxford 2000) at pp. 84-119; Andrea Gattini, La legittima
difesa nel nuovo secolo: La sentenza della Corte internazionale di Giustizia nell’affare delle
Piattaforme petrolifere, RDI 2004, pp. 147-170.
107
Thus Wolff Heintschel von Heinegg, The Proliferation Security Initiative: Security v.
freedom of navigation?, 35 Israel YBHR 2004, pp. 181-203, at pp. 200-201; idem., The United
Nations Convention on the Law of the Sea and maritime security operations, 48 GYBIL 2005,
pp. 151-185, at pp. 184-185.
108
Thus also Douglas Guilfoyle, Interdicting vessels to enforce the common interest: mari-
time countermeasures and the use of force, 56 ICLQ 2007, pp. 69-82, at pp. 76-78.
109
See also Lehrman, supra note 1, at pp. 237-244.
110
Jon M. van Dyke, Applying the precautionary principle to ocean shipments of radioac-
tive materials, 27 ODIL 1996, pp. 379-397; idem., Balancing navigational freedom with envi-
ronmental and security concerns, 15 Colorado JIELP 2003, pp. 19-28; Marco Roscini, The
navigational rights of nuclear ships, 15 Leiden JIL 2002, pp. 251-265.
111
Thus also Byers, supra note 65, at pp. 536-538.
112
Former Legal Advisers’ Letter on accession to the Law of the Sea Convention, 98 AJIL
2004, pp. 307-309.
This is surprising to a certain extent because it was in that respect that the
drafters of the Convention had shown their most recalcitrant and conserva-
tive face. They knowingly ignored the deficiencies of a system attached to an
unregulated open space and promoted a formalistic adherence to the façade
rather than a bold decision to transfer part of or even all the power tradition-
ally held by the States to the world community as a whole – even under cir-
cumstances of decentralised enforcement, as in the present case. In so doing,
they opted for consistency rather than innovation and a secure foundation for
future action rather than precipitous action as an immediate response to op-
portunistic revendications.
State practice has proved that the decision thus taken was actually for the
better. It allowed the world community to address emerging exigencies and
new priorities within the well-defined parameters of international law. In
spite of unilateral revendications of jurisdictional powers in the high seas
area or the (politically legitimate) pressure to accord priority to certain con-
siderations, among which the non-proliferation of weapons of mass destruc-
tion and the combating of terrorism are paramount, the fundamental princi-
ples, on which the Law of the Sea was erected, have remained intact. This
success was not due to the counter-pressure applied by the world community
as a whole or any particular attachment to the legislative product of the Third
UN Conference on the Law of the Sea. Rather, it constitutes evidence of the
comprehensive and eventually flexible nature of the rule, which has proven
to be both solid enough to reinforce security of law and subtle enough to ac-
commodate the evolving and divergent needs of flag States, coastal States
and the world community at large.
A final comment is perhaps in order. The same conclusion of continuity

through innovation holds true for the presence, continued impact and even-
tual usefulness of the Law of the Sea Convention. An intricate combination
of bold novelties and well-established rules, the Convention has provided a
solid foundation on which individual States and the world community as a
whole were able to explore new approaches to emerging challenges. The ad-
herence to traditional rules of jurisdiction and the perception of stability in
the allocation of power facilitated the acceptance and almost immediate in-
tegration of novel concepts in the law of the sea.
Understood as a major codification exercise, created a constitution for the
oceans, 25 years later the Law of the Sea Convention has stood the test of
time. It has proven to be solid yet flexible, constant yet adjustable, massive
yet subtle – old and yet so new…
TABLE OF TREATIES
1794
Jay’s Treaty, 19 November 1794, 8 Stat. 116, 12 Bevans 13, at p. 27
1841
London Treaty for the Suppression of the African Slave Trade, 2 Martens Nouveau
Recueil, ser. 1, p. 392
1890
Brussels General Act for the Suppression of the Slave Trade and Importation
into Africa of firearms, ammunition and spirituous liquors, 27 Stat. 886
1926
International Slavery Convention, done in Geneva on 25 September 1926, it en-
tered into force on 9 March 1927, 46 Stat. 2183, 60 UNTS 253; as amended
by the Protocol signed in Geneva on 7 December 1953, approved by UN
General Assembly resolution 794 (VIII) of 23 October 1953 and entered into
force on 7 July 1955, 212 UNTS 17; both texts available at <www.unhchr.ch>
1930
Hague Convention on certain questions relating to the Conflict of Nationality
Laws, text available at <www.unhcr.org>
1937
International Convention for the prevention and repression of terrorism, con-
cluded in Geneva on 16 November 1937, LN Doc. C.546.M.383.1937
1946
International Convention for the Regulation of Whaling, done on 2 December
1946 and entered into force on 10 November 1948, 161 UNTS 72, also avail-
able at <www.iwcoffice.org>
1949
Agreement and Rules of Procedure of the General Fisheries Council for the
Mediterranean, approved by the FAO at its fifth session in 1949, available at
<www.fao.org>
Geneva Convention for the amelioration of the condition of the wounded and
sick in armed forces in the field (Geneva I), 75 UNTS 31
Geneva Convention for the amelioration of the condition of wounded, sick and
ship-wrecked members of armed forces at sea (Geneva II), 75 UNTS 85
Geneva Convention relative to the treatment of prisoners of war (Geneva III), 75
UNTS 135
Geneva Convention relative to the protection of civilian persons in time of war
(Geneva IV), 75 UNTS 287
1950
Convention between the United States and Costa-Rica for the establishment of an
Inter-American Tropical Tuna Commission, available at <www.iattc.org>
1951
Agreement between the Parties to the North Atlantic Treaty regarding the status
of their forces, done on 19 June 1951, TIAS no. 2846
1956
Supplementary Convention on the Abolition of Slavery, the Slave Trade and in-
stitutions and practices similar to slavery, adopted on 7 September 1956 by
ECOSOC resolution 608 (XXI), 226 UNTS 3
1957
Treaty establishing the European Community, originally established in 1957 and
since repeatedly amended and codified, OJ C 321E, 29 December 2006; text
also available at <www.europa.eu>
1958
Convention on the High Seas, 450 UNTS 82
Convention on the Continental Shelf, 499 UNTS 311
Convention on the Territorial Sea and Contiguous Zone, 516 UNTS 205
Convention on Fishing and Conservation of the Living Resources of the High
Seas, 559 UNTS 285
1965
Washington Convention on the Settlement of Investment Disputes between
States and Nationals of other States (ICSID), approved on 18 March 1965
and entered into force on 14 October 1966, available at <www.world
bank.org/icsid>
TABLE OF TREATIES 181
1966
International Covenant on Civil and Political Rights, adopted by UN General
Assembly Resolution 2200A (XXI), UN Doc. A/6316 (1966), 999 UNTS
171, available at <www.unhchr.ch>
International Convention for the conservation of Atlantic tunas, signed on 14
May 1966 and entered into force on 21 March 1969, available at <www.iccat.org>
1968
Treaty on the Non-Proliferation of Nuclear Weapons, concluded in London,
Moscow and Washington on on 12 June/1 July 1968 and entered into force
on 5 March 1970, 7 ILM 1968, pp. 809-817
1969
International Convention relating to Intervention on the High Seas in Cases of
Oil Pollution Casualties, adopted on 29 November 1969, it entered into
force on 6 May 1975; initially amended by the 1973 Protocol thereto, which
entered into force on 30 March 1983 and subsequent amendments in 1991,
1996 and 2002 revising the list of substances; available at <www.imo.org>
Vienna Convention on the Law of Treaties, concluded in Vienna on 23 May
1969 and entered into force on 27 January 1980, 1155 UNTS 18232, 8 ILM
1969, pp. 679-735; also available at <www.un.org>.
1971
Ramsar Convention on wetlands of international importance, especially as water-
fowl habitat, done on 2 February 1971 and entered into force on 21 Decem-
ber 1975, 996 UNTS 245
1972
Convention on the development, production and stockpiling of bacteriological
and toxic weapons and on their destruction, concluded in London, Moscow
and Washington on 10 April 1972, 1015 UNTS 163, 11 ILM 1972, pp. 309-315;
also available at <www.opbw.org>
Convention on the International Regulations for Preventing Collisions at Sea
(COLREG), adopted on 20 October 1972, available at <www.imo.org>
Convention concerning the protection of the world cultural and natural heritage,
done in Paris on 21 November 1972 and entered into force on 17 December
1975, 11 ILM 1972, pp. 1358-1366, available at <www.unesco.org>
1973
Convention on international trade in endangered species of wild fauna & flora
(CITES), concluded on 3 March 1973 and entered into force on 1 July 1975,
993 UNTS 243
Convention on the Prevention and Punishment of Crimes against Internationally

Protected Persons, adopted by UN General Assembly Resolution 3166/1974
of 5 February 1974, UN Doc. A/RES/3166 (XXVIII); 13 ILM 1974, pp. 41-49
International Convention for the Prevention of Pollution from Ships, as modified
by the Protocol of 1978 relating thereto; it entered into force on 2 October
1983 (MARPOL 73/78), available at <www.imo.org>
Annex I, Prevention of pollution by oil
Annex II, Noxious liquid substances
Annex V, Garbage
Annex VI, Prevention of air pollution by ships (SOx Emission Control Areas)
International Convention on the Suppression and Punishment of the Crime of
Apartheid, 1015 UNTS 243
Protocol relating to Intervention on the High Seas in Cases of Pollution by Sub-
stances other than Oil, as repeatedly amended, available at <www.imo.org>
1974
International Convention on the Safety of Life at Sea (SOLAS), adopted on 7
November 1974 and entered into force on 25 May 1980, 1184 UNTS 2,
available at <www.imo.org>
1977
Budapest Treaty on the international recognition of the deposit of microorgan-
isms for the purposes of patent procedure, adopted on 28 April 1977 and
amended on 28 September 1980, it entered into force on 19 August 1980
and for the amendments on 24 May 1984; text available at <www.wipo.org>
1978
International Convention on Standards of Training, Certification and Watchkeep-
ing for Seafarers (STCW), aopted on 7 July 1978 and entered into force on
28 April 1984, as completely amended in 1995 and entered into force on 1
February 1997, available at <www.imo.org>
Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisher-
ies; 1135 UNTS 369
1979
International Convention against the Taking of Hostages, 18 ILM 1979, pp.
1456-1463
International Convention on Maritime Search and Rescue (SAR), adopted on 27
April 1979 and entered into force on 22 June 1985, available at <www.imo. org>
South Pacific Forum Fisheries Agency Convention, signed at Honiara, the Salo-
mon islands on 10 July 1979 and entered into force on 9 August 1979 in the
context of the South Pacific Forum Fisheries Agency; text available at

<www.ffa.int>
US-Canada Agreement for a Cooperative Vessel Traffic Management System for
the Juan de Fuca region, 19 December 1979, 32 UST 380, also available at
<www.gpoaccess.gov>
1980
Convention on the Conservation of Antarctic Marine Living Resources
(CCAMLR), adopted on 20 May 1980 and entered into force on 7 April
1982, available at <www.ccamlr.org>
1981
Agreement to facilitate the interdiction by the United States of vessels of the
United Kingdom suspected of trafficking in drugs, 1285 UNTS 197
1982
UN Convention on the Law of the Sea, concluded on 10 December 1982 and en-
tered into force on 16 November 1994, 1833 UNTS 396; 21 ILM 1982, pp.
1261-1354, also available at <www.un.org>
Protocol concerning Mediterranean Specially Protected Areas, done in Geneva,
adopted on 3 April 1982 and entered into force on 23 March 1986, available
at <ww.unepmap.org>
Memorandum of Understanding on Port State Control, Paris, 26 January 1982, as
regularly amended; text available at <www.parismou.org>
1983
Convention for the protection and development of the maritime environment of
the wider Caribbean region, done in Cartagena de Indias on 24 March 1983
and entered into force on 30 March 1986, 22 ILM 1983, pp. 221-245.
1984
UN Convention against Torture and Other Cruel or Inhuman or Degrading
Treatment of Punishment, adopted by General Assembly Resolution 39/46,
1465 UNTS 85, 23 ILM 1984, pp. 1027-1037
1985
Convention implementing the Schengen Agreement of 14 June 1985 between the
Governments of the States of the Benelux Economic Union, the Federal Re-
public of Germany and the French Republic on the gradual abolition of
checks at their common borders, OJ L 239, pp. 19-62, 22 September 2000;
to which acceded Italy, ibid., pp. 63-68; Spain, ibid., pp. 69-75; Portugal,
ibid, pp. 76-82; Greece, ibid., pp. 83-89; Austria, ibid., pp. 90-96; Denmark,
ibid., pp. 97-105; Finland, ibid., pp. 106-114; and Sweden, ibid., pp. 115-123
1986
UN Convention on Conditions for Registration of Ships, concluded in Geneva on
6 February 1986, 26 ILM 1987, pp. 1229-1250.
1988
IMO Convention for the Suppression of the Unlawful Acts against the Safety of
Maritime Navigation (SUA), adopted on 10 March 1988 and entered into
force on 1 March 1992, 1678 UNTS 29004
UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Sub-
stances, adopted in Vienna, ECOSOC Doc. E/Conf.82/15 of 19 December
1988, 28 ILM 1989, pp. 497-526
1989
International Convention on the Rights of the Child, adopted by UN General As-
sembly Resolution 44/25, UN Doc. A/RES/44/25, 12 December 1989, avail-
able at <www.unhchr.ch>
US-USSR Agreement on the Uniform Interpretation of Norms of International
Law Governing Innocent Passage, 14 Law of the Sea Bulletin 1989, pp. 12-13
1990
International Convention on oil pollution preparedness, response and cooperation
(OPRC), adopted on 30 November 1990 and entered into force on 13 May
1995, available at <www.imo.org>
Protocol concerning specially protected areas and wildlife to the 1983 Cartagena
de Indias Convention for the protection and development of the marine
environment of the Wider Caribbean Region, done at Kingston on 18 Janu-
ary 1990, it entered into force on 18 June 2000, text available at <www.
cep.unep.org>.
Treaty between the Kingdom of Spain and the Italian Republic to combat illicit
drug trafficking at sea, 1776 UNTS 229
1991
Agreement between the European Community and the United States concluded
on 23 September 1991, 30 ILM 1991, p. 1487.
Protocol concerning Frontier Controls and Policing, Co-operation in Criminal
Justice, Public Safety and Mutual Assistance relating to the Channel
Fixed Link, done on 25 November 1991
Protocol concerning Frontier Controls and Policing, Co-operation in Criminal

Justice, Public Safety and Mutual Assistance relating to the Channel Fixed
Link, done on 25 November 1991; documents available at Geoffrey Mar-
ston, UK materials in international law, 64 BYBIL 1993, pp. 579-758, at pp.
647-648
Protocol on environmental protection to the 1959 Antarctic Treaty, done in Ma-
drid on 4 October 1991 and entered into force on 14 January 1998, 30 ILM
1991, pp. 1461-1486
1992
Acuerdo Latinoamericano sobre control del busques por el estado rector del
Puerto, established in Viña del Mar in 1992, available at <www.acuerdo-
latino.int.ar>
Convention on Biological Diversity, 31 ILM 1992, pp. 818-848
Fisheries Agreement between the European Community and the Morocco, OJ L
99, 31 December 1992
Framework Convention on Climate Change, 31 ILM 1992, pp. 849-873
International Convention on Civil Liability for Oil Pollution Damage, adopted on
29 November 1969 and entered into force on 19 June 1975, available at
<www.imo.org>
OSPAR Convention for the protection of the marine environment of the North-
East Atlantic, done in Paris on 22 September 1992 and entered into force on
25 March 1998, 21 ILM 1993, pp. 1069-1100; available at <www.ospar.org>
Treaty establishing the European Union, OJ C 191, 29 July 1992; and since re-
peatedly amended and codified, OJ C 321E, 29 December 2006, text also
available at <www.europa.eu>
1993
Agreement for the establishment of the Indian Ocean Tuna Commission, adopted
by the FAO Council at its 150th session in November 1993 and entered into
force on 17 March 1996, available at <www.iotc.org>
Agreement to Promote Compliance with Consvervation Measures in the High
Seas, approved by FAO Conference Resolution 15/93 on 24 November 1993
under Article XIV of the FAO Constitution, 33 ILM 1994, pp. 968-980,
available at <www.fao.org>
Asia-Pacific Memorandum of Understanding on port-State control in the Asia-
Pacific Region, Tokyo, done in 1 December 1993, <www.tokyo-mou.org>
Convention for the conservation of southern bluefin tuna; adopted in May
1993,it entered into force on 23 May 1994; available at <www.ccsbt.org>
Convention on the prohibition of development, production, stockpiling and use
of chemical weapons and on their destruction, concluded in Paris on 13
January 1993 and entered into force on 29 April 1997, 32 ILM 1993, pp.
800-873, available at <www.opcw.org>
1994
Agreement relating to the implementation of Part XI of the UN Convention on
the Law of the Sea of 10 December 1982, adopted on 28 July 1994 and
entered into force on 28 July 1996, having been approved by UN General
Assembly Resolution 48/263 on 17 August 1994, UN Doc. A/RES/48/263/
Annex; 33 ILM 1994, pp. 1309-1327, also available at <www.un.org>
Convention on the conservation and management of pollock resources in the
Central Bering Sea or the ‘Doughnut Hole’ Convention, adopted on 11
February 1994 and entered into force on 8 December 1995
Treaty of Peace between Israel and Jordan, 34 ILM 1995, pp. 46-66
1995
Agreement for Implementation of the provisions of the provisions of the UN
Convention on the Law of the Sea of 10 December 1982 relating to the
Conservation and Management of straddling fish stocks and highy migra-
tory fish stocks, Opened for signature in New York on 4 December 1995,
it entered into force on 11 December 2001; 34 ILM 1995, pp. 1542-1580
Agreement on illicit traffic by sea, implementing article 17 of the United Nations
Convention against illicit traffic in narcotic drugs and psychotropic sub-
stances, ETS no. 156, adopted in Strasbourg on 31 January 1995, avail-
able at <conventions.coe.int>
Canada-European Community Agreed Minute on the Conservation and Man-
agement of Fish Stocks, on 20 April 1995, 34 ILM 1995, pp. 1260-1278
Protocol concerning Specially Protected Areas and biological diversity in the
Mediterranean, done in Barcelona, in force since 12 December 1999,
available at <www.unepmap.org>
1996
Carribean Memorandum of Understanding, established in 1996, available at
<www.caribbeanmou.org>
ILO Convention on Seafarers’ Hours of Work and Manning of Ships (no. 180),
adopted on 22 October 1996 and entered into force on 8 August 2002,
available at <www.ilo.org>
1997
Agreement between the United States of America and the Republic of Haiti con-
cerning cooperation to suppress illicit maritime drug traffic, concluded on
17 October 1997; 1997 UST Lexis 128
Convention of the law of non-navigational uses of international watercourses,

adopted by UN General Assembly Resolution 51/229 on 21 May 1997, 31
ILM 1997, pp. 700-720, also available at <www.un.org>
Eurorean Convention on Nationality, ETS no. 166, adopted in Strasbourg on 6
November 1997, available at <conventions.coe.int>
International Convention for the Suppression of Terrorist Bombing, adopted by
UN General Assembly Resolution 52/164 of 9 January 1998
Mediterranean Memorandum of Understanding, established in Malta in 1997,
available at <www.medmou.org>
Memorandum of Understanding between the European Union and the US con-
cerning the US Helms-Burton Act and the US Iran and Libya Sanctions
Act, concluded on 11 April 1997; 36 ILM 1997, pp. 529-530
OECD Convention on Combating Bribery of Foreign Public Officials in Interna-
tional Business Transactions, 37 ILM 1998, pp. 1-11
1998
Agreement between the European Communities and the Government of the United
States of America on the application of positive comity principles in the
enforcement of their competition laws, 18 June 1998, OJ L 173, pp. 28-31
Indian Ocean Memorandum of Understanding, available at <www.iomou.org>
International Criminal Court Statute, adopted in Rome on 18 July 1998, UN Doc.
A/Conf.183/9, 37 ILM 1998, pp. 999-1069
1999
Abuja Memorandum of Understanding, available at <www.medmou.org/
west_africa>
Barents Sea ‘Loophole’ Agreement between Iceland, Norway and Russia con-
cerning certain aspects of cooperation in the area of fisheries, done in St.
Petersburg on 15 May 1999, available at <www.ocean law.net>
International Convention for the Suppression of the Financing of Terrorism,
adopted by General Assembly Resolution 54/109 of 9 December 1999,
also available at <www.un.org>
2000
Agreement between the United States of America and the Republic of Honduras
concerning cooperation for the suppression of illicit maritime traffic in
narcotic drugs and psychotropic substances, concluded on 29 March
2000; 2000 UST Lexis 159
Black Sea Memorandum of Understanding, available at <www.bs.mou.org>
Convention on the conservation and management of highly migratory fish stocks
in the Western and Central Pacific Ocean was signed on 5 September
2000 and entered into force on 19 June 2004; also available at

<www.wcpfc.int>
Framework Agreement for the Conservation of Living Marine Resources on the
High Seas of the South Pacific (Galapagos Agreement), between Chile,
Peru and Ecuador, available at <www.spc.org.nc>
Protocol on Preparedness, Response and Cooperation to Pollution incidents by
Hazardous and Noxious Substances, adopted on 15 May 2000, which will
enter into force on 14 June 2007; available at <www.imo.org>
2001
Agreement between the Government of the United States of America and the
Government of the Republic of Nicaragua concerning cooperation to sup-
press illicit traffic by sea and air, concluded on 1 June 2001; 2001 UST
Lexis 63
Convention on the conservation and management of the fisheries resources of the
South East Atlantic Ocean, 41 ILM 2002, pp. 257-281; also available at
<www.seafo.org>
Convention on the Protection of the Underwater Cultural Heritage, adopted by
the UNESCO General Conference on 2 November 2001, 41 ILM 2002, pp.
40-56, also available at <www.unesco.org>
International Treaty on Plant Genetic Resources for Food and Agriculture
(ITPGRFA), adopted during the 31st FAO General Conference on 21
January 2001, available at<www.fao.org>
2002
Agreement establishing the Caribbean Regional Fisheries Mechanism, available
at <www.caricom.org>
2003
Government of the Republic of Guatemala concerning cooperation to
suppress illicit traffic in narcotic drugs and psychotropic substances by
sea and air, concluded on 19 June 2003; text available at <usem-
bassy.state.gov/Guatemala>
Government of the Republic of Liberia concerning cooperation to sup-
press the proliferation of weapons of mass destruction, their delivery sys-
tems and related materials by sea, done on 11 February 2004 and entered
into force on 9 December 2004; text available at <www.state.gov>
Agreement between the Republic of Cyprus and the Arab Republic of Egypt on
the delimitation of the delimitation of the exclusive economic zone, con-
cluded in Cairo on 17 February 2003 and entered into force on 7 March

2004, available at <www.un.org>
Protocol amending the European Convention on the Suppression of Terrorism,
ETS no. 190, adopted in Strasbourg, on 15 May 2003, available at
<www.coe.int>
Seafarers’ Identity Documents Convention (Revised) (no. C-185), adopted on 19
June 2003 and entered into force on 9 February 2005; available at
<www.ilo.org>
2004
Government of the Republic of the Marshall islands concerning coopera-
tion to suppress the proliferation of weapons of mass destruction, their de-
livery systems and related materials at sea, done on 13 August 2004 and
entered into force on 24 November 2004; text available at <www.state.gov>
Government of the Republic of Liberia concerning cooperation to sup-
tems and related materials by sea, done on 11 February 2004 and entered
into force on 9 December 2004
Amendment to the Supplementary Arrangement between the Government of the
United States of America and the Government of the Republic of Panama
to the Arrangement between the Government of the United States and the
Republic of Panama for support and assistance from the US Coast Guard
for the National Maritime Service of the Ministry of Government and Jus-
tice, done on 12 May 2004 and entered into force 1 December 2004; text
available at <www.state.gov>
2005
Government of Belize concerning cooperation to suppress the prolifera-
tion of weapons of mass destruction, their delivery systems and related
materials at sea, done on 4 August 2005; text available at <www.state.gov>
Government of the Republic of Croatia concerning cooperation to sup-
tems and related materials, done on 1 June 2005; available at <www.
state.gov>
Government of the Republic of Cyprus concerning cooperation to sup-
tem and related materials by sea, done on 25 July 2005 and entered into
force 12 January 2006; text available at <www.state.gov>
Council of Europe Convention on Laundering, Search, Seizure and Confiscation
of the Proceeds from Crime and on the Financing of Terrorism, CETS no.
198, adopted at Warsaw on 16 May 2005, available at <www.coe.int>
Council of Europe Convention on the Prevention of Terrorism, CETS no. 196,
adopted at Warsaw on 16 May 2005, available at <www.coe.int>
International Convention for the Suppression of Acts of Nuclear Terrorism,
adopted by General Assembly Resolution 59/290 of 13 April 2005, avail-
able at <www.un.org>
Protocol on Suppression of Unlawful Acts against the Safety of Maritime Navi-
gation to Certain Piratical or Armed Robbery Acts (SUA Protocol), IMO
Doc. LEG/CONF.15/DC/1, 13 October 2005; it opened for signature on
14 February 2006; available at <www.imo.org>
Regional Cooperation Agreement on combating piracy and armed robbery against
ships in Asia, concluded on 28 April 2005, 44 ILM 2005, pp. 829-835
2006
Maritime Labour Convention, adopted on 7 February 2006, available at <www.ilo.org>
2007
Government of Malta concerning cooperation to suppress the prolifera-
tion of weapons of mass destruction, their delivery system and related ma-
terials by sea, done on 15 March 2007; text available at <www.state.gov>.
TABLE OF DOCUMENTS
AMNESTY INTERNATIONAL – AI
all available at <www.amnestyinternational.org>
Amnesty International, Universal Jurisdiction: 14 Principles on the Effective
Exercise of Universal Jurisdiction, AI Index IOR 53/01/99, 1999
Amnesty International, Universal jurisdiction: The duty of States to enact and im-
plement legislation, AI Index IOR 53/002/2001
COMMISSION FOR THE CONSERVATION OF SOUTHERN BLUEFIN

TUNA – CCSBT
Resolution to establish the status of cooperating non-member of the Extended
Commission and the Extended Scientific Committee
COMMITTEE FOR THE CONSERVATION OF ANTARCTIC MARINE LIV-

ING RESOURCES – CCAMLR
all available at <www.ccamlr.org>
Conservation Measure 118/XVI (1997): Scheme to promote compliance by non-
contracting party vessels with CCAMLR conservation and management
measures
Conservation Measure 10-06 (2002): Scheme to promote compliance by contract-
ing party vessels with CCAMLR conservation measures
CONVENTION ON BIOLOGICAL DIVERSITY – CBD

available at <www.cbd.int>
Decision VI/24, Access and benefit-sharing as related to genetic resources,
adopted during the 6th Conference of the Parties to the Biodiversity Con-
vention (COP 6), 2002
COUNCIL OF EUROPE – CE
Committee of Experts on Transnational Justice (PC-TJ), Final Activity Report, 20
December 2005, Doc. PC-TJ (2005) 10, available at <www.coe.int/tcj>
EUROPEAN COMMUNITY – EC / EUROPEAN UNION – EU

all available at <www.europa.eu>
Consultation Paper on the initiatives envisaged by the Commission to improve
the fight of the European Community against illegal, unreported and unregu-
lated fishing, 2006
Council of the European Union, EU Strategy against proliferation of weapons of
mass destruction (2003)
Declaration of the Ministerial Conference for the Sustainable Development of
Fisheries in the Mediterranean, Venice, 25-26 November 2003
FOOD AND AGRICULTURE ORGANISATION – FAO

all available at <www.fao.org>
Code of Conduct for Responsible Fisheries, adopted by consensus at the 28th
session of the FAO Conference on 31 October 1995
International Plan of Action to prevent, deter and eliminate illegal, unreported
and unregulated fishing, adopted by consensus at the 24th session of the
FAO Committee on Fisheries on 2 March 2001 and endorsed by the 120th
session of the FAO Council on 23 June 2001
International Undertaking on Plant Genetic Resources, approved by Resolution
8/83 of the FAO General Conference at its 22nd session, 1983; as
amended by Resolution C3/91, adopted by the FAO General Conference
at its 26th session, 1991
Model Scheme on Port State Measures to Combat Illegal, Unreported and Un-
regulated Fishing, Annex E to the Report of the Technical Consultation
to Review Port State Measures to Combat Illegal, Unreported and Un-
regulated Fishing, FAO Fisheries Report no. 759 (FAO, Rome 2004)
State of the world fisheries and aquaculture (SOFIA) 2004
GENERAL FISHERIES COMMISSION FOR THE MEDITERRANEAN – GFCM

available at <www.fao.org>
Report of the thirtieth session, Istanbul, 24-27 January 2006 (FAO, Rome 2006)
INDIAN OCEAN TUNA COMMISSION – IOTC

all available at <www.iotc.org>
Resolution 02/04 on establishing a list of vessels presumed to have carried out il-
legal, unregulated and unreported fishing
Resolution 02/05 concerning the establishment of a record of vessels over 24
metres authorised to operate in the IOTC Area
TABLE OF DOCUMENTS 193
INSTITUT DE DROIT INTERNATIONAL – IDI

available at <www.idi-iil.org>
Resolution on Universal criminal jurisdiction with regard to the crime of geno-
cide, crimes against humanity and war crimes, 17th Commission (Chris-
tian Tomuschat, rapporteur) Session of Krakow, 2005
INTER-AMERICAN TROPICAL TUNA COMMISSION – IATTC

all available at <www.iattc.org>
Resolution C-03-07 on the establishment of a list of longline vessels over 24 me-
tres authorised to operate in the Eastern Pacific Ocean, June 2003
Resolution C-00-06 on a Regional Vessel Register, August 2000
Resolution C-01-02 on fishing by vessels of non-contracting parties, June 2001
INTERNATIONAL CHAMBER OF COMMERCE – ICC

available at <www.iccwbo.org>
Policy Statement: Extraterritoriality & Business, Recommendation no. 1, Docu-
ment 103-33/5 Final, 13 July 2006
INTERNATIONAL COMMISSION FOR THE CONSERVATION OF AT-

LANTIC TUNAS – ICCAT
all available at <www.iccat.org>
Resolution 97-02 on becoming a contracting party, entity or fishing entity
Recommendation 02-22 concerning the establishment of an ICCAT Record of
Vessels over 24 metres authorised to operate in the Convention Area
Recommendation 02-23 to establish a list of vessels presumed to have carried
out illegal, unreported and unregulated fishing activities in the ICCAT
Area
INTERNATIONAL LABOUR ORGANISATION – ILO

available at <www.ilo.org>
ILO/IMO Code of Practice on Security in Ports, adopted by the ILO Governing
Body in March 2004 and the IMO Maritime Safety Committee in May
2004
INTERNATIONAL LAW ASSOCIATION – ILA

all available at <www.ila-hq.org>
Report of the Sixty-Ninth Conference, London 2000, Final Report of the Com-
mittee on coastal jurisdiction over marine pollution (London 2000) pp.
443-512
Report of the Sixty-Ninth Conference, London 2000, Committee on International

Human Rights Law and Practice, Universal Jurisdiction (London 2000)
pp. 403-431
INTERNATIONAL LAW COMMISSION – ILC

all available at <www.un.org>
Articles on Prevention of transboundary harm from hazardous activities, Report
on the Work of the International Law Commission during its 56th session
(2004), UN Doc. A/59/10, General Assembly Official Records, Suppl.
No. 10
Articles on State Responsibility, UN Doc A/56/10 (2001), as approved by Gen-
eral Assembly resolution 56/83 of 12 December 2001
Draft Articles on Diplomatic Protection adopted by the ILC on first reading in
2004 (John Dugard, special rapporteur), Report on the Work of the Inter-
national Law Commission during its 56th session (2004), UN Doc.
A/59/10, General Assembly Official Records, Suppl. No. 10
Draft Articles on the Responsibility of International Organisations, provisionally
adopted by the International Law Commission (Giorgio Gaja, rapporteur);
ILC Report on the work of its 58th session (2006), UN Doc. A/61/10
(2006)
Draft Code of Crimes against the Peace and Security of Mankind, Report of the
International Law Commission on the work of its forty-eighth session
(1996), UN Doc. A/51/10
INTERNATIONAL MARITIME ORGANISATION – IMO

all available at <www.imo.org>
Draft Guidelines for Port State Control on Inspection of Seafarers’ Working
Hours (2006)
Draft Guidelines for Port State Control under the International Convention for
the Control and Management of Ships’ Ballast Water and Sediments (ex-
pected in 2008)
General Assembly Resolution A.572(14), General provisions on Ships Routeing,
2003
General Assembly Resolution A.585(14), Measures to prevent unlawful acts
which threaten the safety of ships and the security of their passengers and
crew, 1985
General Assembly Resolution A.600(15), IMO ship identification number scheme
General Assembly Resolution A.682(17), Regional cooperation in the control of
ships and discharges, 1991
General Assembly Resolution A.720(17), Guidelines for the Designation of Spe-
cial Areas and the Identification of Particularly Sensitive Sea Areas, 1990
General Assembly Resolution A.857(20),Guidelines for Vessel Traffic Services,

27 November 1997
General Assembly Resolution A.922(22), Code of Practice for the Investigation
of the Crimes of Piracy and Armed Robbery Against Ships, November
2001
General Assembly Resolution A.923(22), Measures to prevent the registration of
phantom ships, November 2001
General Assembly Resolution A.924(22), Review of measures and procedures to
prevent acts of terrorism which threaten the security of passengers and
crews and the safety of ships, November 2001
General Assembly Resolution A.927(22), Guidelines for the designation of Spe-
cial Areas under MARPOL 73/78 and Guidelines for the identification
and designation of Particularly Sensitive Sea Areas, 29 November 2001
General Assembly Resolution A.946(23), Voluntary IMO Member State Audit
Scheme, 27 November 2003
General Assembly Resolution A.956(23), Amendments to the Guidelines for the
onboard operational use of shipborne automatic identification systems
(AIS)
General Assembly Resolution A.959(23), Format and guidelines for the mainte-
nance of the Continuous Synopsis Record (CSR)
General Assembly Resolution A.973(24), Code for the implementation of man-
datory IMO instruments, November 2005
General Assembly Resolution A.974(24), Framework and Procedures for the
Voluntary IMO Member State Audit Scheme, 2005
General Assembly Resolution A.982(24), Revised Guidelines for the identifica-
tion and designation of Particularly Sensitive Sea Areas, 1 December
2005
Guidelines for the installation of a shipborne Automatic Identification System
(AIS), agreed by the Sub-Committee on the Safety of Navigation at its
48th session (8-12 July 2002) and approved by the Maritime Safety
Committee at its 76th session (2-13 December 2002)
ILO/IMO Code of Practice on Security in Ports, adopted by the ILO Governing
Body in March 2004 and the IMO Maritime Safety Committee in May
2004
IMO & UNHCR, Rescue at sea. A guide to principles and practice as applied to
migrants and refugees (2006)
International Code for the Safe Operation of Ships and for Pollution Prevention
(ISM Code 2002), first adopted in 1991, it became mandatory in 1996
LEG 67/9, 13 October 1992
LEG 87/17, 2001
MERC 101/48, Identification of the Wadden Sea as a Particularly Sensitive Sea
Area, 2002
MERC 106/49, Designation of the Paracas National Reserve as a Particularly

Sensitive Sea Area, 2003
MERC 111/50, Annex 1, amending MARPOL 73/78, Annex I, Regulation G
MERC 111/50, Annex 2, amending MARPOL 73/78, Annex I, Regulation H
MERC 112/50 amending the Condition Assessment System
MERC 121/52, Designation of the Western European waters as a Particularly
Sensitive Sea Area, 15 October 2004
MERC 124/53, Designation of the Canary islands as a Particularly Sensitive
Sea Area, 2005
MERC 135/53, Designation of the Galapagos Archipelago as a Particularly
Sensitive Sea Area, 2005
MERC 136/53, Designation of the Baltic Sea as a Particularly Sensitive Sea
Area, 2005
MERC 49/22, Report of the Marine Environment Protection Committee at its
49th session, 8 August 2003
MERC 49/8/11, Designation of a Western European Particularly Sensitive Area,
1 April 2003
MERC 52/8/4, Comments submitted by the WWF on MERC 52/8 on the Pro-
posed amendments to Assembly Resolution A.927(22) to strengthen and
clarify the Guidelines for the identification and designation of Particu-
larly Sensitive Sea Areas (PSSAs), 18 August 2004
MERC 53/24, Report of the Marine Environment Protection Committee at its
53rd session, 18-22 July 2005
MERC 74/40, Identification of the Archipelago of Sabana-Camagüey as a Par-
ticularly Sensitive Sea Area, 1997
MERC 97/47, Identification of the sea area around Malpelo Island as a Particu-
larly Sensitive Sea Area, 2002
MERC 98/47, Identification of the sea area around the Florida Keys as a Par-
ticularly Sensitive Sea Area, 2002
MSC/Circ.1072, Guidance on provision of ship security alert systems, 26 June 2003
MSC/Circ.1111, Guidance relating to the implementation of SOLAS Chapter XI-
2 and the ISPS Code, 7 June 2004, including in Annex I: Guidance relat-
ing to the implementation of SOLAS Chapter XI-2 and the ISPS Code; and
Annex II: IMO Resolution MSC.159(78), Interim guidance on control
and compliance measures to enhance maritime security, 21 May 2004
MSC/Circ.1133, Reminder of the obligation to notify flag States when exercising
control and compliance measures, 14 December 2004
MSC/Circ.1219, Interim LRIT technical specifications and other matters, 9
January 2007
MSC/Circ.443, Measures to prevent unlawful acts against passengers and crews
on board ships, 1986
Report of the Ad Hoc Consultative Meeting of senior representatives of interna-

tional organizations on the “genuine link”, convened by the IMO on 7-8
July 2005 and discussed by the IMO Council at its 96th session on 19-23
June 2006; UN Doc. A/61/160, 17 July 2006
Resolution MSC.46(65), 16 May 1995
Resolution MSC.147(77), Adoption of the Revised performance standards for a
ship security alert system
Resolution MSC.167(78), Guidelines on the Treatment of Persons Rescued at
Sea, May 2004
Resolution MSC.211(81), Arrangements on the timely establishment of the long-
range identification and tracking system, 19 May 2006
SN/Circ.227, 6 January 2003
INTERNATIONAL SEABED AUTHORITY – ISA

all available at <www.isa.org.jm>
Draft Regulations on prospecting and exploration for hydrothermal polymetallic
sulphides and cobalt-rich ferromanganese crusts, Doc. ISBA/10/C/WP.1/
Rev.1, 3 May 2006
Recommendations for the guidance of contractors for the assessment of possible
environmental impacts arising from exploration for polymetallic nodules
in the Area, approved on 4 July 2001 by the Legal and Technical Com-
mission, Doc. ISBA/7/LTC/1/ Rev.1 of 10 July 2001
Regulations on Prospecting and Exploration for Polymetallic Nodules in the
Area [The Mining Code], Doc. ISBA/6/A/18, 2000
Statement by the Secretary-General of the International Seabed Authority to the
Fourth Meeting of the Informal Consultative Process of the UN Conven-
tion on the Law of the Sea (UNICPLOS), 2003
Report of the Secretary-General of the International Seabed Authority to the As-
sembly of the Authority, Doc. ISBA/9/A/3, 4 June 2003
Report of the Secretary-General of the International Sea-bed Authority to the As-
sembly of the Authority, Doc. ISBA/12/A/2, 26 June 2006
Report of the Secretary-General of the International Seabed Authority under Ar-
ticle 166 paragraph 4 of the UN Convention on the Law of the Sea, Doc.
ISBA/10/A/3, 31 March 2004
Press release SB/12/12, 15 August 2006
ORGANISATION FOR ECONOMIC COOPERATION AND DEVELOPMENT –

OECD
all available at <www.oecd.org>
Maritime Transport Committee, Policy Statement on Substandard Shipping,
2002
Committee on Fisheries: Final Report of the Ministerially-led Task Force on

IUU fishing on the high seas, Closing the net. Stopping illegal fishing in
the high seas, March 2006, text also available at <www.high-seas.org>
OECD, Genetic inventions, intellectual property rights and licensing practices.
Evidence and policies (Paris 2002)
ORGANISATION OF AFRICAN UNITY – OAU

Council of Ministers, Declaration on the Issues of the Law of the Sea, May 1973
ORGANISATION OF AMERICAN STATES – OAS

all available at <www.oas.org>
Inter-American Juridical Committee, Opinion examining the US Helms-Burton
Act, OAS Doc. CJI/SO/II/doc.67/96rev.5, 27 August 1996, 35 ILM 1996,
pp. 1322-1334
Draft Agreement concerning cooperation in suppressing illicit maritime traffick-
ing in narcotic drugs and psychotropic substances in the Caribbean Sea,
OAS Doc. OAS/ser.L/XIV 2.28 (2000)
SUBSIDIARY BODY ON SCIENTIFIC, TECHNICAL AND TECHNOLOGI-

CAL ADVICE – SBSTTA
all available at <www.biodiv.org>
Bioprospecting of genetic resources of the deep-sea bed, Doc. UNEP/CBD/
SBSTTA/2/15, 1996
Report prepared in response to Decision II/10 (1995) of the Conference of the
Parties to the Convention on Biological Diversity, Doc. UNEP/CBD/
SBSTTA/ 8/ INF/3/Rev.1 of 22 February 2003
UNITED NATIONS – UN
all available at <www.un.org>
Security Council Resolution 1373/2001, UN Doc. S/RES/1373 (2001) of 28 Sep-
tember 2001, 40 ILM 2001, pp. 1278-1280
Security Council Resolution 1540/2004, UN Doc. S/RES/1540 (2004)
General Assembly Resolution 55/7, Oceans and the law of the sea, UN Doc.
A/RES/55/7, 27 February 2001
General Assembly Resolution 61/11, Necessity of ending the economic, commer-
cial and financial embargo imposed by the United States of America
against Cuba, UN Doc. A/RES/61/11, 5 December 2006
General Assembly Resolution 61/222, Oceans and the law of the sea, UN Doc.
A/RES/61/222, 16 March 2007
Articles on State Responsibility, approved by UN General Assembly Resolution

56/83, UN Doc. /RES/56/83 (2001)
Declaration of Principles governing the seabed and the ocean floor and the sub-
soil thereof beyond the limits of national jurisdiction, adopted by General
Assembly Resolution 2749 (XXV), 1970
Universal Declaration of Human Rights, adopted by UN General Assembly
Resolution 217A (1948), UN Doc. A/810, available at <www.unhchr.ch>
Report of the Secretary-General to the General Assembly, Oceans and the law of
the sea, UN Doc. A/59/62, 4 March 2004
the sea, Doc. A/60/63 of 5 March 2005
the sea, UN Doc.A/61/63/Add.1, 17 August 2006
the sea, UN Doc. A/62/_/ (advanced and unedited text), 12 March 2007,
paragraph 150, available at <www.un.org>
High-level Panel on threats, challenges and change, Towards development, secu-
rity and human rights for all (UN, New York 2005)
Report of the Review Conference on the Agreement for the Implementation of the
Provisions of the United Nations Convention on the Law of the Sea of 10
December 1982 relating to the Conservation and Management of Strad-
dling Fish Stocks and Highly Migratory Fish Stocks prepared by the
President of the Conference, UN Doc. A/CONF.210/2006/15, 5 July 2006
Draft Articles on Exclusive Economic Zone, proposed by Algeria, Cameroon,
Ghana, Ivory Coast, Kenya, Liberia, Madagascar, Mauritius, Senegal, Si-
erra Leone, Somalia, Sudan, Tunisia and United Republic of Tanzania to
the UN General Assembly Committee on the peaceful uses of the sea-bed
and the ocean floor beyond the limits of national jurisdiction, Sub-
Committee III, UN Doc. A/AC.138/SC.II/L.40, 16 July 1973, 12 ILM
1973, pp. 1246-1249
Rio Conference on Environment and Development (UNCED), 1992, Agenda 21,
also available at <habitat.igc.org/agenda21>
Rio Declaration on Environment and Development, 31 ILM 1992, pp. 874-880
Stockholm Declaration on the Human Environment, 11 ILM 1972, pp. 1416-1420
DOALOS, Comments in connection with issues raised in document LEG 87/16/1,
IMO Doc. LEG 87/17, Annex 7, p. 1, available at <www.imo.org>
General Assembly Consultative Group of Flag State Implementation, UN Doc.
A/59/63 (2004)
Kuala Lumpur Statement on enhancement of safety, security and environmental
protection in the Straits of Malacca and Singapore, 20 September 2006,
annexed to identical letters dated 15 November 2006 from the representa-

tives of Indonesia, Malaysia and Singapore to the UN addressed to the
Secretary-General, Doc. A/61/584, 17 November 2006
Report of the Ad Hoc Consultative Meeting of senior representatives of interna-
tional organizations on the “genuine link”, convened by the IMO on 7-8
July 2005 and discussed by the IMO Council at its 96th session on 19-23
June 2006; UN Doc. A/61/160, 17 July 2006
Report of the work of the UN Open-ended Informal Consultative Process on
Oceans and the Law of the Sea at its seventh meeting, UN Doc. A/61/156,
17 July 2006
UNITED NATIONS ENVIRONMENT PROGRAMME – UNEP

available at <www.unep.org>
UNEP, Ecosystems and biodiversity in deep waters and high seas (2006)
WORLD HEALTH ORGANISATION – WHO

available at <www.who.int>
International Health Regulations 2005
WORLD TRADE ORGANISATION – WTO

all available at <www.wto.org>
Chile – Measures affecting the transit and importation of swordfish, Request for
the establishment of a panel by the European Communities, WT/DS193/2,
7 November 2000 (00-4761)
Chile – Measures affecting the transit and importation of swordfish, Agreement
between the European Communities and Chile, Communication from the
European Communities, WT/DS193/3, 6 April 2001 (01-1770) and
WT/DS193.Add.1, 9 April 2001
MISCELLANEOUS
Africa Legal Aid, The Cairo-Arusha Principles on Universal Jurisdiction in Re-
spect of Gross Human Rights Offences, 2002, available at <www.kituo
chakatiba.co.ug/cairo-arusha.htm>
Declaration of Santo Domingo, 11 ILM 1972, pp. 892-893
Harvard Research Draft Convention on Jurisdiction with Respect to Crime, 29
AJIL 1935, Spec. Suppl., at p. 443
Princeton Principles on Universal Jurisdiction, adopted in 2002, available at
<www.princeton.edu/~lapa/unive-jur.pdf >
Protestation du Gouvernement français au sujet de l’établissement de la zone de

protection de la pêche en Méditerranée du 22 septembre 1998, ADM
1997, p. 655
Redress Universal Jurisdiction Project; available at <www.redress.org>
TABLE OF LEGISLATION
ALGERIA
Décret législatif no. 94-13 du 28 mai 1994, Journal officielle de la République
Algérienne no. 40 du 22 juin 1994
BELGIUM
Loi du 16 juin 1993 relative à la répression des infractions graves aux conven-
tions internationales de Genève du 12 août 1949 et aux protocoles I et II du 8
juin 1977 additionnels à ces conventions, Moniteur belge, 5 août 1993; as
amended by la Loi du 10 février 1999 relative à la répression des violations
graves de droit international humanitaire, Moniteur belge, 23 mars 1999, 38
ILM 1999, pp. 918-925
CANADA
all available at <laws.justice.gc.ca>
Coastal Fisheries Protection Act, RSC, ch. C-33 (1985), as amended by SC ch.
14 (1994), 33 ILM 1994, pp. 1383-1388
Arctic Waters Pollution Prevention Act (AWPPA), RSC, ch. A-12 (1993)
Canadian Shipping Act (CSA), RSC, ch. S-9 (1993), first enacted in 1972
Oceans Act, ch. 31, 1996 SC §13(1)
CROATIA
Decision of the Croatian Parliament for the extension of the jurisdiction of the
Republic of Croatia in the Adriatic Sea, 3 October 2003, as amended on 3
June 2004 and in force since 3 October 2004; 55 Law of the Sea Bulletin
2004, p. 31; text available at <www.un.org>
CYPRUS
all available at <www.cygazette.com>
Law 63(I)/2004 on a contiguous zone of 12 miles, ` + +'
@ { ' * +@ , Official Ga-
zette of the Republic Annex I, no. 3831 of 5 April 2004
Law 64 (I)/2004 on an Exclsuive Economic Zone, ` + +' -

@ { +'@ $ @ ^ + * +@ -
, Official Gazette of the Republic Annex I, no. 3831 of 5 April 2004
EUROPEAN UNION – EU / EUROPEAN COMMUNITY – EC

all available at <www.europa.eu>
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European
Arrest Warrant and the surrender procedures between the member States, OJ
L 190, p. 1, 18 July 2002
Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection
of environment through criminal law, OJ L 29, p. 55, 5 February 2003
Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the
criminal-law framework for the enforcement of the law against ship-source
pollution, OJ L 255, p. 164, 30 September 2005
Decision of the Council and the Commission of 10 April 1995 concerning the
conclusion of the Agreement between the European Communities and the
Government of the United States of America regarding the application of
their competition laws, OJ L 95, pp. 45-52, 27 April 1995
Directive 2001/106/EC of the European Parliament and of the Council of 19 De-
cember 2001, amending Council Directive 95/21/EC concerning the en-
forcement, in respect of shipping using Community ports and sailing in the
waters under the jurisdiction of the member States, of international stan-
dards of ship safety, pollution prevention and shipboard living and working
conditions (port State control), OJ L 19, p. 17, 22 January 2002
Directive 2005/35/EC of the European Parliament and of the Council of 7 Sep-
tember 2005 concerning ship-cource pollution and the introduction of penal-
ties for infringements, OJ L 255, pp. 11-21, 30 September 2005
Joint Action 96/668/CFSP of 22 November 1996 adopted by the Council on the
basis of Articles J.3 and K.3 of the Treaty on European Union concerning
measures protecting against the effects of the extra-territorial application of
legislation adopted by a third country, and actions based thereon or resulting
therefrom, OJ L 309, p. 7, 29 November 1996
Regulation (EC) 1726/2003 of the European Parliament and of the Council of 22
July 2003 amending Regulation (EC) 417/2002 on the accelerated phasing-
in of double- hull or equivalent design requirements of single hull oil tank-
ers, OJ L 249, pp. 1-4, 1 October 2003
Regulation (EC) 2271/96 of 22 November 1996 protecting against the effects of
the extra-territorial application of legislation adopted by a third country, and
actions based thereon and resulting therefrom, OJ L 309, pp. 1-6, 29 No-
vember 1996
TABLE OF LEGISLATION 205
Communication from the Commission to the European Parliament and the

Council on the safety of the seaborne oil trading [Erika I], COM (2000) 142
final, 21 March 2000
Communication from the Commission to the European Parliament and the
Council on a second set of Community measures on maritime safety follow-
ing the sinking of the oil tanker Erika [Erika II], COM (2000) 802 final, 6
December 2000
Communication from the Commission on a Community Action Plan for the
eradication of IUU fishing, COM (2002) 180, 28 May 2002
Communication from the Commission to the Council and the European Parlia-
ment laying down a Community Action Plan for the conservation and sus-
tainable exploitation of fisheries resources in the Mediterranean Sea under
the Common Fisheries Policy, COM (2002) 535 final, 9 October 2002
Communication on improving safety at sea in response to the Prestige accident,
COM (2002) 681, 3 December 2002
Communication from the Commission on action to deal with the effects of the
Prestige disaster, COM (2003) 105 final, 5 March 2003
Communication from the Commission on a third package of legislative measures
on maritime safety I the European Union [Erika III], COM (2005) 585 final,
23 November 2005
Green Paper by the Commission of the European Communities, Towards a fu-
ture maritime policy for the Union: A European vision for the oceans and
seas, COM (2006) 275, 7 June 2006
FRANCE
all available at <legisfrance.gouv.fr>
Code de l’environnement, Article L 218-29 as amended by article 6 of Loi no.
2001-380, JO of 4 May 2001; by article 4 of Loi no. 2003-346 of 15 April
2003, JO of 16 April 2003; and article 30 paragraphs 1 and 9 of Loi 2004-
204 of 9 March 2004, JO of 10 March 2004; as further specified in décret
no. 95-411 of 19 April 1995, JO of 19 April 1995
Code de l’environnement, Article L218-21 as amended by article 3 of Loi no.
2003-346 of 15 April 2003, JO of 16 April 2003; and article 30 paragraphs 1
and 5 of Loi 2004-204 of 9 March 2004, JO of 10 March 2004
Loi no. 2003-346 du 15 avril 2003 relative à la création d’une zone de protection
écologique au large des côtes du territoire de la République, JO du 16 avril
2003, modifiant Loi no. 76-665 relative à la zone économique au large des
côtes du territoire de la République, JO 16 juillet 1976
Décret no. 2004-33 du 8 janvier 2004 portant création d’une zone de protection
écologique au large des côtes du territoire de la République en Méditerra-
née, JO du 10 janvier 2004
HOLY SEE
Inter Caetera bull of Pope Alexander VI, done on 4 May 1493
ITALY
Legge no. 61 di 8 febbraio 2006, Istituzione di zone di protezione ecologica oltre
il limite esterno del mare territoriale, Gazzetta Ufficiale no. 52 del 3 marzo
2006; available at <gazzette.comune.jesi.an.it>
LIBYAN ARAB JAMAHIRIYA

General People’s Committee Decision no. 37 of 1373 from the death of the
Prophet (AD 2005) concerning the declaration of a Libyan fisheries protec-
tion zone in the Mediterranean Sea, annexed to the letter dated 29 March
2005 from the Chargé d’affaires a.i. of the Permanent Mission of the Libyan
Arab Jamahiriya to the UN addressed to the Secretary-General, doc.
A/60/68; available at <www.un.org>
MALTA
Decision of 18 July 1978 extending the fishing zone to 25 miles, RGDIP 1979, p.
536
MOROCCO
Dahir no. 1-81-179 of 8 April 1981 promulgating Law no. 1-81 of 18 December
1980
SLOVENIA
Act on the Ecological Protection Zone and the Continental Shelf of the Republic
of Slovenia, 22 October 2005, 60 Law of the Sea Bulletin 2006; available at
<www.un.org>
SPAIN
available at <www.boe.es>
Real decreto 1315 de 1 agosto 1997, BOE no. 204 de 26 agosto 1997, p. 25628,
as amended by Real decreto del 31 marzo 2000, BOE no. 79 de 1 abril 2000
TUNISIA
Loi no. 62-35 du 16 octobre 1962, Journal officielle de la République Tunisienne
no. 53 des 12-16 octobre 1962
TABLE OF LEGISLATION 207
Law 50/2005 of 27 June 2005, 58 Law of the Sea Bulletin 2005, also available at
<www.un.org>
TURKEY
Decree No. 86/11264 of the Council of Ministers on an exclusive economic zone in
the Black Sea Official Gazette, 17 December 1986, available at <www.un.org>
UNITED KINGDOM
all available at <www.opsi.gov.uk>
The Offences at Sea Act (1536) 28 Hen. 8, ch. 15
The Bounty Act (1825) 6 Geo. 4, ch. 49
The Sexual Offences (Conspiracy and Incitement) Act 1996
The Sex Offenders Act 1997
UNITED STATES
available at <wais.access.gpo.gov>
Constitution, article I, Section 8 cl. 10
Anti-Terrorism and Effective Death Penalty Act (AEDPA) 1996, Pub. L. 104-
132, section 221, 110 Stat. 1214, 28 USC 1605
Cuban Liberty and Democratic Solidarity (Libertad) Act 1996 (Helms-Burton
Act), Public Law 104-114, 22 USC 6021, 35 ILM 1996, pp. 357-378
Iran and Libya Sanctions Act 1996 (D’Amato-Kennedy Act), Public Law 104-
172, 50 USC 1701, 35 ILM 1996, pp. 1273-1279
Maritime Drug Law Enforcement Act 1986, Pub. L. 99-570, 100 Stat. 3302, 46
USC §3201-3202, as amended by Pub. L. 100-690 (1988), 102 Stat. 4294,
USC §4802 and finally repealed by Pub. L 103-447, 108 Stat. 4694, USC
§103
Oil Pollution Act (OPA) of 1990, Pub.L. No. 101-380, 104 Stat. 484
Omnibus Diplomatic Security and Antiterrorism Act 1986, Pub. L 99-399, 18
USC 2331 (1986)
Uniting and Strengthening America by providing appropriate tools required to
intercept and obstruct terrorism (USA Patriot Act) Act 2001, Pub.L. 107-56,
as amended by the US Patriot Improvement and Reauthorisation Act 2005
Presidential Proclamation No. 2667, Policy of the United States with respect to
the natural resources of the subsoil and the sea bed of the continental shelf,
28 September 1945, 10 Federal Registry 12303, [1943-48] 3 CFR §68
Presidential Proclamation No. 2668, Policy of the United States with respect to
coastal fisheries in certain areas of the high seas, 28 September 1945, 10
Federal Registry 12304, [1943-48] 3 CFR §68
Presidential Proclamation no. 8031, Establishment of the Northwestern Hawai-

ian Islands Marine National Monument, 26 June 2006, 71 Federal Registry
36441 [2006]
Executive Order No. 9633, 28th September 1945, 10 Federal Registry 12305,
[1943-48] 3 CFR §437
Executive Order No. 9634, 28th September 1945, 10 Federal Registry 12305,
[1943-48] 3 CFR §437
Washington Administrative Code, §§317-21-100 to 321-21-540 (1995), available
at <apps.leg.wa.gov/wac>
TABLE OF CASES
ARBITRAL AWARDS
Behring Sea Fur Seals arbitration, Great Britain v. United States, Arbitration
Award (Paris, 15 August 1893) 1 Moore’s International Arbitration Awards
1898, pp. 755-917; 1 International Environmental Law Reports 2000, pp. 43-88
Muscat Dhows case, France v. UK, award of 8 August 1905, XI UNRIAA 92,
also available at <www.haguejusticeportal.net>
North Atlantic Coast Fisheries case (1910), 11 UNRIAA 167, at p. 180, also
available at <www.haguejusticeportal.net>
Isle of Palmas arbitration, USA v. The Netherlands, (Max Huber, arbitrator) 4
April 1928, 2 UNRIAA 830, also available at <www.haguejusticeportal.net>
Air Services Agreement of 27 March 1946, United States v. France, 18 UNRIAA
1978, pp. 417-453
Guinea/Guinea Bissau maritime delimitation case, 77 ILR 1985
La Bretagne arbitration, Dispute concerning filleting within the Gulf of St. Laur-
ence, Canada v. France, award of 17 July 1986, 90 RGDIP 1986, pp. 713-786
LOSC Annex VII Arbitral Tribunal, Southern Bluefin Tuna cases, Australia v.
Japan, New Zealand v. Japan, award of 4 August 2000, also available at
<www.intfish.net> and <www.worldbank.org/icsid>
COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES – ECJ

all cases available at <www.curia.eu>
Case 22/70, Commission v. Council [1970] ECR 263
Case 804/79, Commission v. UK [1981] ECR 1045
Case 203/80, Casati [1980] ECR 2595
Case 89/85, Ahlstrom Osakyhtio v. Commission, judgment of 27 September 1988
[1988] ECR 5193
Case C-327/91, French Republic v. Commission of the European Communities
[1994] ECR I-3641
Case C-62/96, Commission v. Greece, judgment of 27 November 1997
Case C-226/97 Lemmens [1998] ECR I-13711
Case C-176/03, Commission of the European Communities supported by the
European Parliament v. Council of the European Union supported by the
Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Re-

public, the Kingdom of Spain, the French Republic, Ireland, the Kingdom of
the Netherlands, the Portuguese Republic, the Republic of Finland, the
Kingdom of Sweden and the United Kingdom of Great Britain and Northern
Ireland, 13 September 2005
Opinion of Advocate-General Dámaso Ruiz-Jarabo Colomer, 26 May 2005
Case C-239/03, Commission of the European Communities v. the French Repub-
lic, judgment of 7 October 2004
Case C-266/03, Commission v. Luxembourg [2005] ECR I-04805
Case C-459/03, Commission v. Ireland, 30 May 2006
Opinion of the Advocate-General M. Poiares Maduro, 18 January 2006
Case C-440/05, Commission of the European Communities supported by the
European Parliament v. Council of the European Union supported by the
Portuguese Republic, the Kingdom of Belgium, the Republic of Finland, the
French Republic, the Slovak Republic, the Republic of Malta; the Republic
of Hungary; the Kingdom of Denmark, the Kingdom of Sweden, Ireland, the
Czech Republic, the Hellenic Republic, the Republic of Estonia, the United
Kingdom of Great Britain and Northern Ireland, the Republic of Latvia, the
Republic of Lithuania, the Kingdom of The Netherlands, the Republic of
Austria and the Polish Republic
Case C-308/06, Reference for preliminary ruling from the High Court of Justice
(England and Wales), Queen’s Bench Division (Administrative Court) made
on 14 July 2006 – The Queen on the application of The International Asso-
ciation of Independent Tanker Owners (Intertanko), The International Asso-
ciation of Dry Cargo Shipowners (Intercargo), The Greek Shipping Coop-
eration Committee, Lloyd’s Register, The International Salvage Union v.
The Secretary of State for Transport
Ruling 1/78 (re Draft Convention on the Physical Protection of Nuclear Materi-
als) [1978] ECR 2151
Opinion 2/91 (re ILO Convention no. 170) [1993] ECR I-1061
Opinion 1/94 (re WTO Agreements) [1994] ECR I-5267
Opinion 2/2000 on the Cartagena Protocol [2001] ECR I-09713
Opinion 1/2003 (Competence of the Community to conclude the new Lugano
Convention on jurisdiction and enforcement of judgments in civil and com-
mercial matters), 7 February 2006
EUROPEAN COURT OF HUMAN RIGHTS – ECHR

all cases availabe at <www.echr.coe.int>
Al-Adsani v. United Kingdom, Grand Chamber, 21 November 2001, App. No.
35763/97
TABLE OF CASES 211
Bankovic v. Belgium, judgment of 12 December 2001

Loizidou v. Turkey (Preliminary Objections), Series A, No. 310, 1995
INTERNATIONAL COURT OF JUSTICE – ICJ

all cases available at<www.icj-cij.org>
Corfu Channel case, United Kingdom v. Albania, ICJ Reports 1949
Anglo-Norwegian Fisheries case, UK v. Norway, ICJ Reports 1951
The Nottebohm case, Liechtenstein v. Guatemala, ICJ Reports 1955
Constitution of the Maritime Safety Committee of the Inter-Governmental Mari-
time Consultative Organisation, Advisory Opinion, ICJ Reports 1969
Case concerning the Barcelona Traction, Light and Power Company Limited,
Belgium v. Spain, Second Phase, ICJ Reports 1970
Legal consequences for States of the continued presence of South Africa in Na-
mibia (South West Africa), notwithstanding Security Council Resolution 276
(1970), Advisory Opinion, ICJ Reports 1971
Fisheries Jurisdiction cases, UK v. Iceland, ICJ Reports 1974; Federal Republic
of Germany v. Iceland, ICJ Reports 1974
Aegean Sea continental shelf, Greece v. Turkey, ICJ Reports 1978
Continental Shelf Tunisia/Libyan Arab Jamahiriya, ICJ Reports 1982
Case concerning delimitation in the maritime boundary in the Gulf of Maine
area, Canada v. USA, ICJ Reports 1984
Military and paramilitary activities in and against Nicaragua, Nicaragua v.
United States of America, Merits, ICJ Reports 1986
Case concerning maritime delimitation in the area between Greenland and Jan
Mayen, Denmark v. Norway, ICJ Reports 1993
Fisheries Jurisdiction case, Spain v. Canada, ICJ Reports 1995
Legality of the threat or use of nuclear weapons, Advisory Opinion, ICJ Reports
1996
Case concerning the Gabcikovo-Nagymaros project, Hungary v. Slovakia, ICJ
Reports 1997
Elettronica Sicula S.p.A. (ELSI), USA v. Italy, judgment of 20 July 1989, ICJ
Reports 1989
Fisheries Jurisdiction case, Spain v. Canada, ICJ Reports 1998
Arrest Warrant of 11 April 2000, Democratic Republic of Congo v. Belgium, ICJ
Reports 2002
Certain Criminal Proceedings in France, Congo v. France, ICJ Reports 2003
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLA-

VIA – ICTY
all cases available at <www.icty-tpiy.org>
Prosecutor v. Dragoljub Kunarac et al., judgment, ICTY case no. IT-96-23-T &
IT-96-23/1-T, 22 February 2001
INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA – ITLOS

all cases available at <www.itlos.org>
The M/V Saiga case, Saint Vincent & the Grenadines v. Guinea, 1997
The M/V Saiga (no. 2) case, Saint Vincent & the Grenadines v. Guinea, 1999
Southern Bluefin Tuna cases, New Zealand v. Japan; Australia v. Japan, Provi-
sional measures, 1999
The Camouco case, Panama v. France, 2000
The Monte Confurco case, Seychelles v. France, 2000
Case concerning the conservation and sustainable exploitation of swordfish
stocks in the South-Eastern Pacific Ocean, Chile v. European Community,
2000
The Grand Prince, Belize v. France, 2001
The Chaisiri Reefer 2 case, Panama v. Yemen, 2001
The MOX Plant case, Ireland v. UK, provisional measures, Order of 3 December
2001
The Volga case, Russian Federation v. Australia, 2002
The Juno Trader case, Saint Vincent & the Grenadines v. Guinea Buissau, 2004
PERMANENT COURT OF ARBITRATION – PCA

all cases available at <www.pca-cpa-org>
In the matter of an Arbitration pursuant to an Agreement to arbitrate dated 3 Oc-
tober 1996 between the Government of the State of Eritrea and the Govern-
ment of the Republic of Yemen, Award of the Arbitral Tribunal in the sec-
ond stage of the proceedings (Maritime Delimitation), 17 December 1999
Eritrea-Ethiopia Boundary Commission, Decision on the delimitation of the bor-
der between Eritrea and Ethiopia, 13 April 2002
Award in the dispute concerning access to information under Article 9 of the
OSPAR Convention, Ireland v. United Kingdom, 2 July 2003
Arbitration regarding the Iron Rhine (‘IJzeren Rijn’) railway, Belgium v. The
Netherlands, award of 24 May 2005
Arbitral Tribunal constituted pursuant to Article 287 and in accordance with An-
nex VII of the UN Convention on the Law of the Sea, In the matter of an
TABLE OF CASES 213
arbitration between Barbados and the Republic of Trinidad & Tobago,

Award, 11 April 2006
PERMANENT COURT OF INTERNATIONAL JUSTICE – PCIJ

all cases available at <www.icj-cij.org>
Oscar Chinn case, PCIJ, Series A/B, no. 63, 1923
Nationality Decrees in Tunis and Morocco case, advisory opinion, PCIJ, Ser. B,
No. 4, 1923
SS Lotus, France v. Turkey, Judgment no. 9, PCIJ, Ser. A, No. 10, 1927
Free zones of Upper Savoy and the district of Gex, France v. Switzerland, PCIJ,
ser. A/B, no. 46, 1932
BELGIUM
The Sharon case, Abbas Hijazi et al. v. Sharon et al., Cour de cassation belge, dé-
cision du 12 février 2003, available at <www.cass.be/juris>
FRANCE
Conseil constitutionnel, décision du 11 février 1982, JORF 1982, p. 301
The Qaddafi case, Cour de cassation, arrêt du 13 mars 2001, RGDIP 2001, 473-491
ISRAEL
Attorney-General of Israel v. Eichmann, Supreme Court of Israel, 29 May 1962,
36 ILR (1968) pp. 277-342
Attorney-General of Israel v. Eichmann, District Court of Jerusalem, 12 Decem-
ber 1961, 36 ILR (1968) pp. 5-276
SPAIN
Guatemalan Generals case, Tribunal constitucional, resolución no. STC
237/2005 de 26 septiembre 2005, available at <www. tribunalconstitucional.es>
UNITED KINGDOM – UK
High Court of Admiralty, Le Louis [1817] 165 Eng. Rep. 1464, at 1475
In re Piracy Iure Gentium [1934] AC 586
Compania Naviera Vascongado v. Cristina SS [1938] AC 485
Naim Molvan v. Attorney-General for Palestine [1948] AC 531, 15 Annual Di-
gest 1948, p. 115
R. v. West Yorkshire Coroner, ex parte Smith [1983] QB 335
House of Lords, R. v. Bow Street Stipendiary Magistrate and others ex parte Pi-
nochet Ugarte (Amnesty International and others intervening) (no. 3),
judgment of 24 March 1999, available at <www.parliament.the-stationary-
office.uk>
High Court of Judiciary, HM Advocate v. Abdelbaset Ali Mohmed Al Megrahi
and Al Amin Khalifa Fhimah, case no. 1454/99, judgment of 10 October 2000,
available at <www.scotcourts. gov.uk>
UNITED STATES OF AMERICA – USA

The Schooner Exchange v. Mac Faddon (1812), 7 Cranch 116
United States v. Furlong, 18 US (5 Wheaton) 184 (1820)
United States v. Brig Malek Adhel, 43 US (2 How.) 210, at p. 232 (1844)
Cutting case, in J.B. Moore, Digest of International Law (vol. II, 1906) pp. 228-
242; Whiteman’s Digest of US Practice in International Law 1976, at p. 339
US v. Aluminium Company of America (Alcoa), 148 F.2d 416 (1945)
Lauritzen v. Larsen, 345 US 571, 73 S Ct 921 (1953)
US v. The Watchmakers of Switzerland Information Center, Inc., 133 F.Supp. 40
and 134 F.Supp. 710 (1963)
Hazeltine Research Inc. v. Zenith Radio Corporation, 239 F.Supp. 51 (1965),
aff’d 395 US 100 (1969)
Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (1976)
Mannington Mills v. Congoleum Corporation, 595 F.2d 1287 (1979)
United States v. Gonzalez, 776 F.2d 931 (1985)
United States v. Yunis, 681 F. Supp. 896 (DDC 1988), aff’d 924 F.2d 1086 (DC
Circ. 1991)
Re Alvarez-Machain, 112 S. Ct. 2188, 31 ILM 1992, pp. 900-952
Hartford Fire Insurance Co. v California, 113 S. Ct. 2891 (1993)
International Association of Independent Tanker Owners (Intertanko) v. Lowry,
497 F.Supp. 1484 (W.D. Washington 1996) aff’d in part, rev’d in part
International Association of Independent Tanker Owners (Intertanko) v. Locke,
148 F.3d 1053 (9th Circ. 1998)
Hoffmann-La Roche Ltd. V. Empagran S.A., 542 US 155 (2004)
US v. Royal Caribbean Cruises Ltd., 2003, file available at the US Coast Guard
site at <www.uscg.mil/d7/d7dl/rccl.htm>
Federal Trade Commission v. Compagnie de Saint-Gobain-Pont-à-Mousson, 20
ILM 1981, pp. 597-617
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INDEX
Actio popularis 21, 125 Archaeological zone 3, 10
Adriatic Sea 93 Archipelagic waters 3
Agenda 21 107 Area 3, 61, 136, 137, 142, 143, 144, 147,
148, 150, 152, 156, 159
Atlantic Ocean 94
Agreement on the Implementation of Part
XI of the UN Convention on the Law of
the Sea 144 Australia 75, 118, 172
Agreement on the Implementation of the Authority 138, 143, 144, 145, 156
Provisions of the UN Convention on the
Law of the Sea relating to the Conserva-
Barbados 100
tion and Management of Straddling Fish
Stock and Highly Migratory Fish Stocks
109, 110, 112, 113, 118, 118, 119, 124, Belgium 11, 16, 22, 54, 58, 83, 85
127, 128, 130, 131, 133 Law of 16 June 1993 22
Article 1 121 Law of 10 February 1999 22
Article 3 109
Article 6 109 Belize 19, 173
Article 7 109
Article 8 110, 118, 119, 128 Biodiversity 81, 108, 135, 148, 153, 155
Article 17 120, 121, 122, 128
Article 19 110, 111 Biological, chemical and nuclear (BCN)
Article 20 111 weapons 168, 169, 170
Article 21 111, 127
Article 22 114, 123 Bioprospecting 134, 135, 145, 147, 148,
Article 33 118, 127 149, 151, 152, 153
Review Conference 127
Bribery 14, 21
Albania 39
Canada 16, 34, 105, 146
Algeria 61, 93 Arctic Waters Pollution Prevention
Act 31, 70
Canadian Shipping Act 31
Antarctic Convention on the Conserva-
tion of Antarctic Marine Living Re- Coastal Fisheries Protection Act
sources (CCMLR) 100, 120, 230 105
Oceans Act 146
276 INDEX
Caribbean Sea 48, 115, 124, 172, 173 Continental shelf 2, 3, 4, 11, 64, 65, 66,
Cartagena Convention for the Pro- 148, 149
tection and Development of the Ma-
rine Environment of the Wider Car- Convention on Biological Diversity (CBD)
ibbean Region 81 63, 139, 140, 152, 154, 155
Protocol concerning Specially Pro- Article 1 153
tected Areas and Wildlife in the
Article 2 153
Caribbean Region (SPAW) 81
Article 4 153
Article 15 153
CDEM standards 42, 46, 73, 74, 79, 86
Article 22 155
Chile 2, 90, 118

Convention on the Conservation of Ant-
arctic Marine Living Resources (CCAMLR)
CITES Convention 128 114, 116, 117
China 143 Council of Europe 13
Coastal state 1, 3, 4, 7, 33, 39, 40, 41, Countermeasures 9, 10, 122, 124, 125,
42, 43, 44, 45, 53, 54, 59, 62, 63, 64, 65, 126, 176
67, 68, 70, 71, 72, 73, 74, 75, 76, 77, 79,
82, 83, 84, 86, 88, 89, 90, 91, 92, 95, 97,
98, 100, 101, 102, 103, 104, 105, 110, Crimes against humanity 21, 24, 25, 28
111, 128, 131, 132, 135, 140, 141, 146,
148, 149, 150, 158, 163, 165 Croatia 93, 174
Commission for the Outer Limits of the Cuba 8, 9, 75, 143

Continental Shelf (CLCS) 132, 141, 142
Cyprus 94, 174
Common concern of humankind 139,
140, 152, 155
Delimitation 92, 93, 94, 100, 102
Common heritage of mankind 136, 138,

140, 141, 146, 151, 152, 157 Denmark 54, 76
Comoros Islands 185 Drug trafficking 27, 31, 38, 124, 161
Complementarity 14, 24 Ecological zone 60, 87, 88, 89, 92, 93
Congo 22 Ecosystem approach 102, 103, 108
Conservation 63, 102, 103, 104, 106, Egypt 94

107, 109, 112, 121, 122, 124, 127, 132,
147 Energy 11, 34, 63, 144
Contiguous zone 2, 3, 7, 10
INDEX 277
Environment 11, 21, 33, 34, 40, 41, 43, Code of Conduct on Responsible
44, 53, 54, 55, 60, 64, 69, 70, 73, 78, 79, Fisheries 108
81, 82, 85, 87, 89, 95, 96, 100, 110, 111, International Treaty on Plant Ge-
114, 131, 138, 143, 149, 154, 157 netic Resources for Food and Agri-
culture (ITPGRFA) 139
Eritrea-Ethiopia Boundary Commission International Undertaking on Plant
12 Genetic Resources 138
Étang de Berre case 56 Finland 54, 76
European Commission 52, 54, 57, 58 Fish stocks 104

Highly migratory 103, 104, 109,
European Community 9, 11, 36, 49, 50, 110, 116, 120, 128
51, 52, 53, 55, 56, 57, 58, 87, 92, 105 Shared 104
Convention implementing the Straddling stocks 103, 109, 110,
Schengen Agreement 11 120, 128
Directive 95/21/EC 49
Directive 2005/35/EC 42, 54 Fisheries 2, 40, 41, 47, 60, 65, 67, 89,
Regulation 1726/2003 86 92, 93, 97, 98, 101, 102, 104, 107, 108,
109, 111, 114, 115, 118, 119, 120, 121,
124, 125, 126, 127, 128, 130, 141, 147
European Court of Human Rights 6
Preferential rights 99, 100
Al-Adsani case 6
Loizidou case 13
Flag state 7, 17, 18, 19, 26, 31, 33, 34,
35, 36, 37, 41, 45, 62, 86, 95, 105, 107,
European Court of Justice 42, 50, 52, 54, 108, 109, 110, 111, 112, 113, 117, 119,
55, 56, 58 121, 122, 123, 130, 131, 132, 147, 150,
152, 153, 158, 159, 160, 161, 163, 165,
European Union 9, 10, 12, 36, 49, 50, 167, 168, 170, 171, 174, 176, 177
51, 52, 54, 55, 58, 89, 91, 172
European Arrest Warrant 12 Flagless ships 161
Framework Decision 2003/80/JHA
52 Flags of convenience 17
Framework Decision 2005/667/JHA
54 Framework Convention on Climate
Change 63, 140
Exclusive Economic Zone (EEZ) 2, 3, 4,
11, 31, 39, 43, 44, 45, 54, 59, 61, 62, 65, France 5, 19, 22, 54, 56, 83, 87, 88, 91,
66, 68, 69, 71, 72, 73, 80, 83, 86, 89, 90, 93, 143, 161, 172
91, 92, 93, 94, 95, 100, 101, 102, 103,
104, 105, 116, 134, 146
Geneva Convention on the Continental
Shelf 3, 64, 66, 148, 149
FAO 47, 107
Agreement to Promote Compliance Geneva Convention on Fishing and Con-
with Conservation Measures in the servation of Living Resources on the
High Seas 109 High Seas 98
278 INDEX
Geneva Convention on the High Seas 3, Indonesia 27

16, 26, 28, 148, 160
Innocent passage 39, 40, 41, 42, 44, 79
Geneva Convention on the Territorial Sea
and the Continuous Zone 3, 39
Internal waters 3, 45, 54
Genuine link 16, 18, 19, 34

International Chamber of Commerce (ICC)
10
Genocide 21, 24, 25
International Court of Justice (ICJ) 11,
Germany 76, 83, 90, 172 62, 129, 130
Aegean Sea case 85
Good faith 100 Anglo-Norwegian Fisheries case 11
Arrest Warrant of 11 April 2000 22
Grotius 1, 3, 20, 97 Barcelona Traction case 16, 125
Certain criminal proceedings in
Guatemala 16, 23, 172, 173 France 22
Constitution of the Maritime Safety
Committee of the IMCO 15
Hague Conference for the Codification of
International Law (1930) 2 Continental Shelf Tunisia/Libya 62
Corfu Channel case 39
Haiti 172 ELSI case 16
Fisheries Jurisdiction case 34, 99,
105, 123
High seas 3, 7, 26, 31, 36, 38, 54, 59, 60,
62, 65, 66, 69, 73, 75, 81, 97, 98, 99, 104, Gabcikovo-Nagymaros case 85, 126
106, 107, 108, 109, 110, 111, 117, 118, Gulf of Maine case 99
119, 121, 123, 128, 131, 135, 147, 152, Legality of the threat or use of nu-
157, 158, 159, 160, 161, 165, 168, 170, clear weapons 85
175, 176, 177, 178
Maritime delimitation in the area
between Greenland and Jan Mayen
Honduras 172 case 99
Nicaragua case 68, 129, 130
Hot pursuit 111 Nottebohm case 14, 15
South-West Africa cases 85
Human rights 11, 13, 14, 25, 33, 67, 123 Tunisia/Libya delimitation case 62
Hydrothermal vents 134 International crimes 13, 25, 26
Illegal, unreported and unregulated (IUU) International Criminal Court 14, 24

fishing 47, 106 Rome Statute 14
Article 4 24
India 143 Article 17 24
INDEX 279
International Labour Organisation (ILO) The Camouco case 33, 112

35, 47, 164, 165 The Chaisiri Reefer 33
Maritime Labour Convention 36 The Grand Prince case 19, 33
The Juno Trader case 33
International Law Association 88 The Monte Confurco case 33, 112
The M/V Saiga case 33, 66, 67, 68
International Law Commission (ILC) 14, The M/V Saiga (no.2) case 18, 67, 68
84, 126
The Southern Bluefin Tuna cases
Articles on Prevention of transbound- 108, 115, 121, 154
ary damage from hazardous activities
The Volga case 33, 112
84
International Whaling Commission (IWC)

International Maritime Organisation (IMO)
114, 115
27, 35, 36, 37, 43, 46, 48, 72, 74, 77, 79,
87, 88, 163, 165, 166
Associated Protective Measures 77, Iran 8, 10
78
ISM Code 46 Ireland 54, 56, 57
ISPS Code 164
International Ship Security Iron Rijn case 58, 85
Certificate (ISSC) 164
Port Facility Security Plan (PFSP) Israel 12
164
PSSAs 74, 75, 76, 77, 78, 79 Italy 16, 88, 89, 93, 94, 124, 172
Guidelines 74, 75
Ius cogens 24, 28, 123
International Seabed Authority (ISA)
132, 136, 137, 142, 143, 145, 146, 151, 156
Japan 143, 172
Draft Regulations on Prospecting
and Exploration for Polymetallic
Sulphides and Cobalt-rich Ferro- Jordan 12
manganese Crusts in the Area 143,
145 Jurisdiction 3, 4, 13, 19, 21, 29, 30, 32,
Recommendations for the Guidance 34, 47, 53, 56, 64, 65, 88, 89, 91, 92, 98,
of Contactors for the Assessment of 100, 103, 106, 110, 119, 131, 132, 133,
Possible Environmental Impacts 136, 143, 147, 148, 159, 165, 167, 178
Arising from Exploration for Poly- civil 5, 11
metallic Nodules in the Area 143
creeping 59, 62
Regulations on Prospecting and Ex-
criminal 5, 11, 25
ploration for Polymetallic Nodules
in the Area – Mining Code 142, domestic 11, 101
143, 145 enforcement 6, 11, 13, 45, 84, 116
exclusive 11, 37, 51, 92, 102, 104,
International Tribunal on the Law of the 123, 131, 168, 170
Sea (ITLOS) 17, 18, 57, 58, 67, 112, executive 6
113 extraterritorial 8, 9, 10, 13
280 INDEX
international 5 Marshall Islands 174

judicial 6
legislative 6 Mediterranean Sea 49, 87, 89, 92, 115
mandatory 45 Protocol concerning Mediterranean
objective territorial 7 Specially Protected Areas 81
permissive 25, 45 Protocol concerning Specially Pro-
tected Areas and Biological Diver-
personal 13
sity in the Mediterranean Sea 81
prerogative 6
prescriptive 5
Mixed agreement 50, 55, 58
subjective territorial 7
territorial 10
Morocco 93, 94
Korea 143
MOX Plant case 56, 57, 58
Liability 47
Nationality 6, 7, 13, 15, 17, 18, 19, 34,
Joint and several 53 89, 97, 106, 107, 154, 168
Liberia 173 Navigation 41, 61, 65, 68, 70, 75, 81, 82,
85, 86, 89, 157, 158
Libyan Arab Jamahiriya 8, 10, 62, 93
The Netherlands 8, 11, 54, 58, 76, 85,
Liechtenstein 15 172
Luxembourg 11 New Zealand 118, 134
Malaysia 27 Nicaragua 172, 173
Malta 54, 93, 136, 174 North Atlantic Fisheries Organisation

(NAFO) 105, 114, 116
Mar presencial 61
Offshore installations 11, 43, 64, 158
Marine Protected Areas (MPAs) 131,
145 Organisation of African Unity 61
Marine scientific research 2, 11, 40, 43, Organisation of American States (OAS)
64, 148, 149, 151, 153, 158 173
Applied 149
Pure 149 OSPAR Convention 57, 80, 146
Resource-oriented 149
Panama 173, 174
MARPOL Convention 42, 44, 54, 73,
78, 86, 87, 88 Paris MOU 46, 48, 49
INDEX 281
Passive personality principle 7, 29, 30, Regional Fisheries Management Organi-

32 sations (RFMO) 112, 113, 117, 120, 122,
123, 124, 126, 128, 130
Patrimonial sea 61
Resources 2, 7, 43, 71, 84, 97, 99, 120,
122
Permanent Court of Arbitration (PCA)
13 biological 134, 140, 144, 152, 156
Isle of Palmas case 13 genetic 138, 147, 148, 153
living 10, 41, 63, 67, 68, 99, 100,
106, 107, 124, 140, 154
Permanent Court of International Justice
(PCIJ) 11, 15 mineral 140, 142, 144, 146
Free zones of Upper Savoy and the natural 61, 63, 67, 119, 138, 140
district of Gex 81 non-living 10, 63, 140
Lotus case 5, 11 plant 138
Nationality Decrees in Tunis and renewable 61
Morocco 11, 15 shared 103, 119, 141
Piracy 7, 21, 25, 28, 38, 157, 159, 160, Rider Agreements 29, 173
166
Rio Declaration on Environment and De-
Pollution 31, 40, 41, 42, 43, 45, 48, 71, velopment 63
82, 84, 86, 88, 92, 131, 144, 148
Russian Federation 76, 113, 143
Port State 18, 33, 44, 45, 46, 47, 108,
163, 165
Scotland 7, 8
Portugal 54, 83, 91, 146, 172

Seabed 4, 63, 133, 134, 141, 143, 145,
146, 148
Precautionary approach 84, 108
Self-defence 176
Precautionary principle 91, 109
Shipping 27, 107
The Prestige incident 79, 83
Singapore 27
Prevention 41, 84, 87, 138
Slavery and slave trade 21, 27, 28, 38,
Prompt release 33, 67 159
Protective principle 6, 7, 29, 30, 32 Slovenia 91, 93, 143
Provisional measures 22 SOLAS Convention 37, 42, 78, 79, 163,

164, 165
PSI Initiative 132, 171, 173, 176, 177
South-East Asia 26, 27
282 INDEX
Sovereign rights 43, 63, 64, 65, 67 Territorial sea 2, 3, 39, 41, 42, 45, 54,
Sovereignty 1, 2, 5, 6, 39, 40, 41, 61, 64, 65, 70, 71, 78, 84, 98, 167, 173
65, 90, 123, 140
Terrorism 10, 21, 30, 32, 166
Spain 23, 34, 83, 92, 105, 123, 124, 172
Total Allowable Catch (TAC) 101
Special Area 71, 72, 73, 78
Treaty on the European Community 55
Specially Protected Areas (SPAs) 43 Article 10 55, 57
Article 174 55
State responsibility 13, 18, 124, 125 Article 226 57
Articles on State Responsibility 18, Article 292 56, 57
124, 176 Article 300 55
Article 1 18
Articles 2-11 34 Trinidad & Tobago 100
Article 42 18, 125
Article 46 125 Truman Proclamations (1945) 2
Article 48 176
Article 49 122 Tunisia 61, 62, 93
Article 50 122, 123
Article 51 122 Turkey 94
Article 52 126
Article 54 125, 176 UN Charter 40, 123
Article 2 11, 15, 22
STCW Convention 35 Article 25 177
Article 48 177
Stockholm Declaration on the Human Chapter VII 159
Environment 138
UN Conference on Environment & De-
Straits 54 velopment (UNCED) 107
Rio Declaration 138
SUA Convention 27, 30, 32, 38, 132,
166, 167, 168, 170
UN Conference on the Law of the Sea
Article 1 70 First (UNCLOS I) 2
Article 3 167
Article 4 167 UN Conference on the Law of the Sea
Article 6 168 Third (UNCLOS III) 1, 62, 65, 68, 70,
Article 8bis 171 133, 178
SUA Protocol 32, 38, 132,
168, 170, 171 UN Convention on the Law of the Sea
1982 1, 3, 4, 17, 19, 28, 29, 32, 33, 41,
42, 44, 54, 55, 57, 59, 60, 61, 66, 69, 77,
Territoriality 6, 7, 11, 19, 90, 153
82, 85, 86, 89, 90, 95, 98, 100, 103, 105,
INDEX 283
107, 111, 118, 119, 120, 127, 131, 133, Article 86 3

135, 136, 146, 152, 154, 155, 156, 158, Article 87 65, 158, 159
165, 166, 171, 177, 178
Article 89 158
Article 1 3, 136, 144
Article 91 16
Article 2 3, 39
Article 92 159
Article 8 3
Article 94 17, 18, 35, 37
Article 18 39
Article 97 33
Article 19 39, 40, 43
Article 98 37
Article 21 41, 42, 71, 114
Article 99 38, 159
Article 22 114
Article 101 27, 160, 166
Article 24 41
Article 105 25, 26, 159, 160
Article 25 40
Article 106 160
Article 26 42
Article 108 29, 38, 161
Article 33 3, 10
Article 109 38
Article 34 42
Article 110 28, 38, 123, 161, 171
Article 44 70
Article 112 107
Article 46 3
Article 116 121
Article 47 3
Article 117 110, 119, 121
Article 48 3
Article 118 106, 119
Article 49 3
Article 119 106
Article 50 3
Article 133 140, 142
Article 51 3
Article 135 136
Article 52 3
Article 136 136
Article 53 3
Article 137 137
Article 54 3
Article 140 137
Article 55 3
Article 141 137
Article 56 4, 11, 39, 43, 62, 63, 69,
Article 143 150, 151
90, 100
Article 145 138, 143
Article 58 62, 65, 66, 67, 68, 69
Article 149 3
Article 59 62, 67
Article 157 142, 144
Article 60 11
Article 162 145
Article 61 101, 102
Article 192 33, 74
Article 62 101, 103
Article 194 74
Article 63 104, 110, 128
Article 195 86
Article 64 104, 128
Article 211 42, 43, 46, 71, 72, 73,
Article 69 103
74
Article 70 103
Article 218 44, 45
Article 76 1, 141
Article 219 46
Article 77 148
Article 220 84
Article 78 66
Article 234 71
Article 80 11
Article 240 150
Article 82 142
Article 243 149
284 INDEX
Article 246 149, 150 Helms-Burton Act 8, 9, 10

Article 256 150 Oil Pollution Act (OPA) 31, 82, 86
Article 287 57 Patriot Act 10
Article 290 57
Article 292 33, 67, 84, 112 Universal Declaration of Human Rights
Article 294 84 14
Article 297 103
Article 303 3, 10 Universal jurisdiction 6, 7, 19, 20, 21,
22, 24, 25, 27, 28, 30, 45, 159
Article 311 107, 131, 155, 156
Aut dedere aut iudicare 21, 45
Part V 62
Cooperative limited universality
Part XI 137, 150
20
Part XII 33, 144
Unilateral limited universality 20
Part XIII 150
Vienna Convention on the Law of Trea-

UN General Assembly 17 ties 119
Resolution 2749 (XXV): Declara- Article 2 121
tion of Principles Governing the
Article 34 119
Seabed and Ocean Floor 137
War crimes 21, 24, 25, 30

UN Security Council 172, 175, 177
Resolution 1540/2004 174, 175,
176, 177 Weapons of Mass Destruction (WMD)
168, 172, 174, 175, 176
Underwater cultural heritage 3
World Summit on Sustainable Develop-
ment (WSSD) 139
UNESCO 3
World Trade Organisation 116
UNESCO Convention for the Protection
of the Underwater Cultural Heritage 3
WWF 77
Article 15 48
Unilateralism 71, 82, 95, 178
United Kingdom 6, 26, 29, 39, 54, 124,

161, 172
United States of America (USA) 2, 4, 7,

9, 16, 26, 29, 32, 74, 80, 116, 124, 132,
158, 161, 172, 177
Anti-Terrorism and Effective Death
penalty Act (AEDPA) 30
Constitution 26
D’Amato-Kennedy Act 8, 9, 10

Gavouneli, Maria. Functional Jurisdiction in The Law of The Sea

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FUNCTIONAL JURISDICTION IN THE LAW OF THE SEA

Publications on Ocean Development

General Editor: Vaughan Lowe

MARTINUS NIJHOFF PUBLISHERS

ISBN: 978 90 04 16345 4

© 2007 Koninklijke Brill NV, Leiden, The Netherlands

Printed and bound in The Netherlands.

Athens, March 2007

2. Institutional approaches to jurisdictional challenges ………….. 107

Table of treaties ……..……………………….………………………… 179

It is a commonplace observation that the 1982 UN Convention on the Law of

ADM Annuaire du Droit de la Mer

CAS Condition Assessment Scheme

Florida JIL Florida Journal of International Law

ITLOS International Tribunal for the Law of the Sea

JURISDICTION IN THE LAW OF THE SEA

high seas, a principle partly created as a reflexion of the impossibility to

The 1958 UN Conference on the Law of the Sea (UNCLOS I) ended up

THE MANIFESTATIONS OF JURISDICTION

“International jurisdiction is an aspect or an ingredient or a consequence of

allowing international courts and tribunals to extract different conclusions on

 the passive personality principle, “determining jurisdiction by refer-

The principle of territoriality is derived directly from the territorial ele-

circle of reaction and counteraction in many States 23 and principally in its

surrendering such individual to the International Criminal Court 53 and of ma-

dence (Guatemala) 66 . The Court confirmed the unfettered granting of nation-

them, the 1986 UN Convention on Conditions for Registration of Ships 72 ,

lished a Consultative Group of Flag State Implementation 77 and continues to

In a world of finely partitioned allocations of jurisdiction, there is still am-

for the perpetration of certain categories of crimes, both expressly identified

the notion of universal jurisdiction available as a matter of customary law to

Committee on International Human Rights Law and Practice in its study on

commitments and increase regional cooperation 130 . Indeed the International

The illicit trafficking of drugs is subject only to an obligation for the

4. PASSIVE PERSONALITY & THE PROTECTIVE PRINCIPLE

of protection, although their definition varied widely. In different times in

The protective principle constitutes par excellence the acknowledged basis

STATE JURISDICTION IN THE SEA

1. THE FLAG STATE

Flag State jurisdiction is the oldest expression of maritime jurisdiction. It

on State Responsibility. Introduction, text and commentaries (Cambridge 2002), especially at

(maritime) session, of a consolidated Maritime Labour Convention 16 , thus creat-

on Maritime Search and Rescue (SAR) 28 . On a less charitable mission, the

2. THE COASTAL STATE

or discriminate against ships flying the flag of or carrying cargoes to and

nalisation of pollution, also if committed “recklessly or by serious negli-

3. THE PORT STATE

Complete with a right to request information as to the intentions of the ves-

coordinated enforcement powers of the port State, under article 15 of the

The effectiveness of the system has also prompted further geographical

Sea Memorandum of Understanding 118 ; the non-European waters of the

4. CONCURRENT JURISDICTION IN THE LAW OF THE SEA

In the world of sovereign States, which constitutes the international com-

The internal allocation of power becomes crucial in such circumstances, as it

it nevertheless proceeded to grant to the Community nothing less that inherent

penalties by the competence national authorities is an essential measure for

of the European legislation on the environmental protection of the coastal

exercise of their jurisdiction in the context of another contractual arrange-

This principle of loyalty, however, also includes an additional obligation “of

The findings of the Court were indeed already evidenced in practice. In a

CHALLENGES TO THE JURISDICTIONAL ZONES

The central question remains: Is this multiplicity of jurisdictional zones and

JURISDICTION IN THE EXCLUSIVE ECONOMIC ZONE

the passive personality principle, “determining jurisdiction by refer-