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THE LAW OF THE SEA

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The Law of the Sea


Selected Writings

by

BUDISLAV VUKAS
Judge, International Tribunal for the Law of the Sea

MARTINUS NIJHOFF PUBLISHERS


LEIDEN / BOSTON

A C.I.P. Catalogue record for this book is available from the Library of Congress.

ISBN 90-04-13863-3

Layout and camera-ready copy: Anne-Marie Krens Oegstgeest The Netherlands

Printed on acid-free paper

All Rights Reserved 2004 Koninklijke Brill NV, Leiden, The Netherlands Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers http://www.brill.nl No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Printed in the Netherlands

ACKNOWLEDGEMENTS

Since 1962, Budislav Vukas, Professor of Public International Law at the University of Zagreb Faculty of Law, has written extensively on the Law of the Sea. Naturally, the majority of these writings are in his mother tongue Croatian. However, scholars belonging to small nations are obliged to write in foreign languages as well. Professor Vukas has published in various countries, in English, French and Italian. Thanks to Mrs. Annebeth Rosenboom from Martinus Nijhoff Publishers, and the Zagreb Faculty of Law, Professor Vukas is now in the position to publish a selection of his writings in English and French. He thanks the publishers of the publications in which his writings were first published for their kind permission to reprint them in this collection. These 20 essays are now republished as initially written. They therefore reflect the development of the authors views as well as the evolution of the law of the sea itself since the beginning of the Third United Nations Conference on the Law of the Sea. Only writings from reviews and books and one of the studies that he submitted to the United Nations Environment Programme, have been included in this collection. It does not include Professor Vukass judicial opinions written in his present capacity as judge of the International Tribunal for the Law of the Sea.

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CONTENTS

Acknowledgements I 1 II 2 3 4 Introduction The Definition of the Law of the Sea Sources of the Law of the Sea The Impact of the Third United Nations Conference on the Law of the Sea on Customary Law Generally Accepted International Rules and Standards Possible Role of the International Tribunal for the Law of the Sea in Interpretation and Progressive Development of the Law of the Sea Relation of the Law of the Sea to Other Fields of International Law The Law of the Sea Convention and the Law of Treaties Droit de la mer et droits de lhomme Delimitation of Maritime Areas The LOS Convention and Sea Boundary Delimitation Natural Resources of the Sea The 1982 United Nations Convention on the Law of the Sea and the Protection of the Living Resources of the Sea Common Heritage of Mankind: A Legal Concept for the Survival of Humanity Navigation The New Law of the Sea and Navigation: A View from the Mediterranean Military Uses of the Sea Lutilisation pacifique de la mer, dnuclarisation et dsarmement Protection of the Marine Environment International Law and the Pollution of the Sea Provisions of the Draft Convention on the Law of the Sea relating to the Protection and Preservation of the Marine Environment and the UNEPs Involvement in their Implementation

v 1 3 11 13 25 39 49 51 71 81 83 111 113 125 131 133 155 157 205 207

III 5 6 IV 7 V 8 9

VI 10 VII 11 VIII 12 13

229

viii

THE LAW OF THE SEA

IX 14 15 X 16 17 18 19 20 Index

Enclosed or Semi-Enclosed Seas Enclosed and Semi-Enclosed Seas The Mediterranean: An Enclosed or Semi-Enclosed Sea? Settlement of Disputes Le choix des procds prvus par larticle 287 de la Convention de 1982 sur le droit de la mer Main Features of Courts and Tribunals Dealing with the Law of the Sea Cases The International Tribunal for the Law of the Sea: Some Features of the New International Judicial Institution Rglement du Tribunal international du droit de la mer questions choisies Dcisions ex aequo et bono et diffrends relatifs au droit de la mer

261 263 281 291 293 297 301 317 327 335

I INTRODUCTION

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Chapter 1

THE DEFINITION OF THE LAW OF THE SEA*

In selecting the subject of my contribution to this Festschrift in honour of Judge Shigeru Oda, I wanted to find a topic that would be related to the most important aspects of Judge Odas activities his highest reputation for expertise in the field of the law of the sea and his outstanding achievements as a Member of the International Court of Justice. I therefore decided to discuss the notion and definition of the law of the sea, in view of the fact that the jurisdiction of some international tribunals has been limited to disputes concerning the law of the sea.

1.

THE LAW OF THE SEA AND THE LAW OF NAVAL WARFARE

Classic textbooks on international law deal with the rules that form the various rgimes at sea in the framework of the objects of international law. For the rules on the uses of the sea in times of peace they use the term law of the sea1 or international law of the sea.2 They deal with naval warfare and maritime neutrality separately from the law of the sea. Nguyen Quoc, Daillier and Pellet deal with the various rgimes at sea together with other international rgimes of the spaces, and define the law of the sea as the amalgam of legal rgimes applicable to various spaces.3 Although he deals with all the rgimes at sea under the title The Law of the Sea, Malcolm Shaw does not engage in defining this expression.4 A general characteristic of the textbooks on international law is their use of the term law of the sea only for the rules on the uses of the sea in times of peace. The law of naval warfare is treated separately, and is not covered by the expression law of the sea. It is in this spirit that Vladimir Ibler defines the law of the sea as:

*
1 2 3 4

First published in Liber Amicorum Judge Shigeru Oda (Nisuke Ando, Edward McWhinney, Rdiger Wolfrum, eds.), Volume 2, Kluwer Law International, The Hague/London/New York, 2002.
R. Jennings and A. Watts (eds.), Oppenheims International Law, Vol. I: Peace, 9th ed., 1992, Parts 2 to 4, 599 et seq. J. Andrassy, Medunarodno pravo, 6th ed., 1976, 159 et seq., 576 et seq. D. Nguyen Quoc, P. Daillier and A. Pellet, Droit International Public, 6th ed., 1999, 1102. M. N. Shaw, International Law, 4th ed., 1997, Chap. 11, 390 et seq.

1 THE DEFINITION OF THE LAW OF THE SEA

the part of international law containing norms on the delimitation of sea areas, their use and the legal rgime applicable to each of them, as well as the norms on the rights and duties of States in respect of the uses of the sea.5

However, I will always recall the first book on the law of the sea I consulted 40 years ago, in which John Colombos regarded the international law of the sea as including not only international law of the sea in times of peace, but also that part of international law that deals with maritime neutrality and naval warfare.6 Even the International Law Commission, in presenting its 1956 Draft Articles on the Law of the Sea, pointed out that their draft covered only one part of the law of the sea: The draft regulates the law of the sea in time of peace only.7 As a consequence thereof, the 1958 United Nations Conference on the Law of the Sea dealt only with the rgimes and activities at sea in times of peace; it did not provide rules on the law of the sea in times of war. In listing the issues for the Third United Nations Conference on the Law of the Sea (UNCLOS III), the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction left out not only the law of naval warfare, but also the issues concerning disarmament and denuclearisation of the ocean space.8 The United Nations Convention on the Law of the Sea (LOS Convention) does not contain a definition of the law of the sea. In the Conventions preamble, there is only an indication of the goals the United Nations wanted to achieve by convening UNCLOS III, which to a certain extent reflect the scope of the contents of the LOS Convention. The States participating in UNCLOS III recognised the desirability of establishing a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of seas and oceans, the equitable and efficient utilisation of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment (fourth preambular paragraph). The Convention contains not only provisions dealing directly with these activities, but also the basic rules establishing the legal order of the seas and oceans, in the framework of which it will be possible to achieve the mentioned goals. In contemporary practice, this attitude of the United Nations has resulted in the use of the term law of the sea only for the part of international law that regulates maritime

5 6 7 8

V. Ibler, Rjecnik medunarodnog javnog prava, 2nd rev. ed., 1987, 170. C. J. Colombos, The International Law of the Sea, 4th rev. ed., 1959, V and 7. United Nations, Report of the International Law Commission covering the work of its Eighth Session, April 23-4 July 1956, GAOR: Eleventh Session, Supplement No. 9 (A/3159), 1956, 4. As a consequence, the Law of the Sea Terminology (Terminology Bulletin No. 297/Rev. 1/Add. 1, UN Doc. ST/CS/SER.F/297/Rev. 2 of 27 July 1976), prepared by the United Nations Secretariat Department of Conference Services for the Law of the Sea Conference, does not contain titles, terms or expressions dealing with naval warfare, such as belligerence, blockade, capture and neutrality.

I INTRODUCTION

relations of States in times of peace. The comprehensive Handbook on the New Law of the Sea, edited by Ren-Jean Dupuy and Daniel Vignes, devotes only ten pages, written by Thodore Halkiopoulos, to The Interference Between the New Law of the Sea and the Law of War, in which the author does not go further than indicating the link between the two parts of international law concerning the seas and oceans:
It is ... quite natural that these two sets of rules (the law of the sea in time of peace and the law of armed conflicts at sea), which belong to the same juridical system, are by no means separated by an impermeable wall; they co-exist and complement each other in order to attenuate as much as possible the perturbation of the juridical order of the sea that is caused by an armed conflict.9

2.

THE SCOPE OF THE LAW OF THE SEA IN TIMES OF PEACE

The law of the sea, as presented in the textbooks, consists of rules on various legal rgimes (territorial sea, contiguous zone, etc.) and on some major activities at sea (fishing, protection of marine environment, etc.). However, not every such rule deals directly and exclusively with the sea. Particularly in the treaties on the law of the sea, norms relating to the sea are inevitably supplemented by rules on other, more technical issues of international law, such as the settlement of disputes concerning the interpretation or application of the treaties, the signing and ratifying the treaties, the functions of the depositary, etc. As the LOS Convention also provides for the establishment of some international institutions (the International Seabed Authority, the Commission on the Limits of the Continental Shelf, the International Tribunal for the Law of the Sea), it had to include many provisions regulating the composition and the work of these institutions, the privileges and immunities of their members, etc. For historical and other reasons, the LOS Convention and the law of the sea in general also include some provisions belonging to other distinctive parts of international law. Thus, for example, there are in the Convention some well-known rules on human rights. States have the duty to take effective measures to prevent and punish the transport of slaves in ships authorised to fly their flag (Article 99). Warships are justified in boarding foreign ships on the high seas if there are reasonable grounds for suspecting that they are engaged in the slave trade (Article 110, paragraph 1(b)). In regulating some major issues of the ocean space, the LOS Convention simultaneously deals with other spaces. Thus, for example, the Convention states that the sovereignty of a coastal State extends to the air space over the territorial sea (Article 2,
9 T. Halkiopoulos, The Interference Between the Rules of the New Law of the Sea and the Law of War, in: R.J. Dupuy and D. Vignes (eds.), A Handbook of the New Law of the Sea 2, Hague Academy of International Law, 1991, 1321.

1 THE DEFINITION OF THE LAW OF THE SEA

paragraph 2), and that 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 (Article 78, paragraph 1). The Convention goes even further, granting to all aircraft the right of transit passage in straits used for international navigation (Article 38, paragraph 1), and the freedom of overflight in the exclusive economic zone (Article 58, paragraph 1) and on the high seas (Article 87, paragraph l(b)). In order to prevent, reduce and control the pollution of the marine environment from or through the atmosphere, the Convention requires States to adopt laws and regulations applicable to the air space under their sovereignty (Article 212, paragraph 1). The provisions on anadromous stocks (Article 66) and catadromous species (Article 67) concern the treatment of these species not only in sea waters, but also in the rivers of States Parties to the Convention. As the sovereignty and jurisdiction of a coastal State over marine areas is based on its sovereignty over its land territory, many of the law of the sea rules include references to the land. Some of them, although relevant for the adjacent rgimes at sea, require reasoning from quite different disciplines. Thus, the LOS Convention contains a rule according to which [r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf (Article 121, paragraph 3). In order to be able to interpret and apply this provision correctly, inter alia, the following questions need to be answered: (a) What is the difference between rocks and islands, which are the subject of the first two paragraphs of Article 121? (b) What is the basis for the claim that a rock can or cannot sustain human habitation? (c) Are there any fixed conditions for the conclusion that a rock can sustain economic life of its own? None of these questions belong to the law of the sea, but they are relevant for the right of the State to which the rocks belong to control some sea areas off the coasts of such small islands. The relevance of those questions for the related law of the sea problems can be compared with that of the land frontier between two coastal States for the determination of the initial point for their sea boundary delimitation. Article 121, paragraph 3, is not the only provision which requires consideration of issues concerning the land territory of coastal States. There are many provisions concerning baselines for measuring the breadth of the territorial sea (Articles 5 to 14) which require an evaluation of some facts on the coast: the presence of low-tide elevations or installations similar to lighthouses (Article 7, paragraph 4); the existence of economic interests peculiar to the region where the method of straight baselines is to be applied (Article 7, paragraph 5), etc. Related to the sea, but sometimes concerning distant land territories, are the provisions on the right of access of land-locked States to and from the sea and freedom of transit. These provisions, drafted in favour of land-locked States, impose duties not only on coastal States, but even on transit States without a sea coast! Even for such non-coastal transit States, the Convention regulates the freedom of transit of land-locked States

I INTRODUCTION

(Article 125), including the problems of customs duties, taxes and other charges (Article 127).

3.

THE LAW OF THE SEA AND MARITIME LAW

As a part of the system of public international law, the law of the sea is closely interlinked with all other segments of the system. It has also various links with some other branches of law. The extension beyond the traditional borders of public international law is particularly evident in the LOS Convention, which contains an enormous quantity of rules on the Area, which proved to be a rather hasty progressive development of international law (Part XI and Annexes III and IV). However, even in some traditional areas regulated in the LOS Convention there are rules which stricto sensu do not belong to the law of the sea, but are closely related to that part of international law. Thus, the rule according to which every State shall fix the conditions for granting its nationality to ships (Article 91, paragraph 1) can be considered as belonging to the law of the sea. Yet, many of the rules on the duties of the State which has granted its nationality to a ship the flag State belong to maritime law. Such as, inter alia, the duty of States to take such measures as are necessary with regard ships flying their flag to ensure safety at sea with regard to the construction, equipment and seaworthiness of ships, the manning of ships, labour conditions and the training of crews, the use of signals, the maintenance of communications and prevention of collisions (Article 94, paragraph 3).10 Many of the provisions on the protection and preservation of the marine environment contained in Part XII are closely linked to international rules and standards belonging to maritime law that have been adopted in the framework of the International Maritime Organization, such as, for example, the provisions on the measures to prevent, reduce and control pollution of the marine environment contained in Article 194. Article 221, paragraph 1, permits States to take and enforce measures beyond the territorial sea ... to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences. This principle was adopted at UNCLOS III under the influence of the International Convention relating to Intervention on the High Sea in Cases of Oil Pollution

10

Because of the close link between the international law of the sea and maritime law, Davorin Rudolf suggested using the term law of the sea to cover both bodies of law dealing with the sea. D. Rudolf, Enciklopedijski rjecnik medunarodnog prava mora, 1989, 309.

1 THE DEFINITION OF THE LAW OF THE SEA

Casualties, adopted in Brussels on 29 November 1969, which contains more detailed rules on the issue.11 According to the LOS Convention, States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment, and they are liable in accordance with international law (Article 235, paragraph 1). This reference to international law in the case of civil liability for oil pollution damage is to the principles and rules contained in the International Convention on Civil Liability for Oil Pollution Damage (Brussels, 29 November 1969).12

4.

COURTS AND TRIBUNALS DEALING WITH LAW OF THE SEA CASES

Four courts and tribunals have been entrusted with the settlement of disputes concerning the interpretation or application of the LOS Convention: the International Tribunal for the Law of the Sea, the International Court of Justice, arbitral tribunals constituted in accordance with Annex VII to the Convention, and special arbitral tribunals constituted in accordance with Annex VIII (Article 287, paragraph 1). Notwithstanding the generally identical competence of the four procedures, they differ amongst themselves in many respects. The purpose of this diversity of procedures was to make it easier for States Parties to submit their disputes to one of the compulsory procedures entailing binding decisions. In dealing with these disputes, all the courts and tribunals listed in Article 287 apply the Convention itself and other rules of international law not incompatible with this Convention (Article 293, paragraph 1). However, the jurisdiction of various courts and tribunals differs ratione personae and ratione materiae. While both types of arbitration and the International Tribunal for the Law of the Sea (ITLOS) are also open to entities other than States Parties, only States may be parties in cases before the International Court of Justice (ICJ). In the context of this paper, special attention should be paid to the differences ratione materiae. Notwithstanding the general competence of all the four courts and tribunals to settle disputes concerning the interpretation or application of the Convention, only the competence of arbitral tribunals (Annex VII) is determined solely by this provision The competence of special arbitral tribunals is limited: they may deal only with disputes concerning the interpretation or application of the articles of the Convention relative to: (1) fisheries. (2) protection and preservation of the marine environment, (3) marine scientific research, or (4) navigation, including pollution from vessels and by dumping (Annex VIII, Article 1).

11 12

A. Ch. Kiss (ed.), Selected Multilateral Treaties in the Field of the Environment, 1983, 230 et seq. Ibid., 235 et seq.

I INTRODUCTION

The competence of ITLOS is also generally determined by Article 287, paragraph 1. Therefore as well as arbitral tribunals (Annex VII, Article 1), ITLOS can deal with all the disputes concerning the interpretation or application of the Convention. However, its jurisdiction also comprises all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal (Annex VI, Article 21). Notwithstanding the apparent latitude given to such agreements, the jurisdiction of ITLOS on the basis of agreements conferring jurisdiction on the Tribunal can include only disputes in the field of the law of the sea. That is why it is important to be able to differentiate this part of international law from other fields of public international law. The limitation of ITLOS to disputes on the law of the sea is not only clear from its name, its competence under the Convention and its Statute (Annex VI), but also from the required competence of its members. In addition to having the highest reputation for fairness and integrity, the members of ITLOS must be of recognized competence in the field of the law of the sea (Annex VI, Article 2, paragraph 1). The strict determination of a dispute as falling within the field of the law of the sea is not relevant only for the ICJ. Of all the courts and tribunals listed in Article 287, paragraph 1, of the LOS Convention, only the ICJ can deal with disputes involving issues beyond the limits of the law of the sea, due to its general jurisdiction (Article 36, paragraph 2, of the Courts Statute). Therefore, for example, disputes concerning sea boundary delimitation that involve the concurrent consideration of issues concerning sovereignty or other rights over continental or insular land territory could be submitted to the ICJ, but not to the other procedures mentioned. However, for dealing with a dispute involving questions beyond the scope of the law of the sea, the jurisdiction of the Court should be established on the basis of its Statute (Article 36). For such disputes, the Courts competence on the basis of the LOS Convention (Article 287) would not suffice. The vague limits of the law of the sea will in the future probably cause dilemmas with regard to the categorisation of some disputes as belonging to the law of the sea. This paper has indicated some of the Conventions provisions that provide grounds for disputes not belonging to the law of the sea. Agreements concluded between the States Parties to the Convention also allow for the submission to ITLOS of disputes not strictly confined to the law of the sea. Some time ago, having scarce information concerning a case brought before a human rights court, I wondered what my opinion might be regarding the competence of ITLOS, had the dispute regarding alleged violations of human rights in an armed conflict at sea been brought to that Tribunal.

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II SOURCES OF THE LAW OF THE SEA

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Chapter 2

THE IMPACT OF THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA ON CUSTOMARY LAW*

1.

INTRODUCTION

The general problem of the interaction of the Third United Nations Conference on the Law of the Sea (UNCLOS III), and its final product the Convention on the Law of the Sea with customary law, represent a broader field of research than the topic assigned to the author of this report. I have been entrusted with only one aspect of this reciprocal relation: the influence of the Conference on customary law. The other side of the coin the impact of existing customary law on the work of the Conference and its outcome has had to be left out. At this stage of the development of the law of the sea, it would be of great interest to analyse the role of customary law (as well as the impact of previously concluded treaties) on the content of the new overall Convention on the Law of the Sea.1 On the other hand, at present, the theme given to me can be studied only partially we have no knowledge of the impact of the new Convention on the behaviour of the members of the international community. For the time being, in dealing with our topic, we only can take into account the influence of the eleven sessions of the Conference and the content of the Convention emerging from those nine long years of work, not the impact of the Convention as such, as a set of new conventional rules.

First published in The New Law of the Sea, Selected and Edited Papers of the Athens Colloquium on the Law of the Sea, September 1982 (Christos L. Rozakis and Constantine A. Stephanou, eds.), North-Holland-Amsterdam-New York-Oxford 1983.
On the eve of the Conference, Stevenson, J.R. and Oxman B.H. wrote that the Conference had to take into account, together with the results of the work of the U.N. Seabed Committee, the four Conventions adopted by the 1958 Conference on the Law of the Sea..., relevant decisions of the International Court of Justice, the Declaration of Principles regarding the deep seabeds adopted by U.N. General Assembly in 1970; and a vast array of official statements and scholarly writings regarding the nature and content of the existing law of the sea. Stevenson J.R. and Oxman, B.H. The Preparations for the Law of the Sea Conference 68 American Journal of International Law, (1974) p. 1.

14

2 LOS CONVENTION AND CUSTOMARY LAW

2.

THE RELATION OF THE CONFERENCE TO THE EXISTING CUSTOMARY LAW

Although I am to deal only with the impact of UNCLOS III on customary law, and not vice versa, my analysis cannot completely avoid the relation of the Conference to previously existing customary law. Namely, in many instances the impact of the results of the Conference on customary law will be strictly linked and dependent upon already existing customary rules. A basic indication of the nature of the relation of the new Convention to customary law can be found in the seventh preambular paragraph to the Convention, where the States participating in the Conference qualify the content of the Convention as the codification and progressive development of the law of the sea .... In accordance with these familiar terms (Art. 13(1)(a)) of the U.N. Charter and their interpretation in Art. 15 of the Statute of the International Law Commission, the qualification given by the drafters of the Convention means that the Convention contains both rules which represent the more precise formulation and systematization of existing customary law (codification) and new rules of international law, regulating new topics, further developing or revising the existing rules (progressive development).2 In relation to the notion of codification, mentioned as one of the achievements embodied in the Convention (Preamble, para. 7), a few comments should be made. First of all, in my opinion, there are few instances of genuine codification accomplished within the framework of this Conference. This perhaps could be asserted of some principles embodied in Part XII (Protection and Preservation of the Marine Environment), where provisions have been elaborated on the basis of previously concluded special conventions and agreements, the 1972 Stockholm principles, States practice, etc., or, of the two freedoms added to the regime of the high seas (freedom to construct artificial islands and other installations and freedom of scientific research). It is an understatement if I say that States, showed little interest in codifying the law of the sea at UNCLOS III. On the contrary, they were eager to bargain about new rules, openly defending their respective national interests in each particular topic and provision, and disregarding existing international practice and rules, if any, unsuited to the protection of their own particular interests. The only real reason for mentioning codification in relation to the new Convention on the Law of the Sea is the fact that the texts of three of the 1958 Geneva Conventions, in which customary law had been codified, was taken over.3 But if we compare the 1958

2 3

See also: The Work of the International Law Commission, (third edition, United Nations 1980) pp. 11-12. In the Preamble to the Convention on the High Seas it is said that its provisions are generally declaratory of established principles of international law. Although there is no similar statement in regard to the Convention on the Territorial Sea and the Contiguous Zone, it is generally admitted that the majority of

II SOURCES OF THE LAW OF THE SEA

15

Convention on the Territorial Sea and the Contiguous Zone, the Convention on the High Seas and the Convention on the Continental Shelf, with the corresponding parts of the new Convention, we notice that only particular articles, and not integral regimes, have been transferred unchanged to the new Convention. Not a single Part of the Convention on the Law of the Sea has remained unchanged if compared with the 1958 codification. The regime of the territorial sea has been elaborated in more detail, some problems have been resolved with more clarity than before, and some old provisions have been amended. Many fundamental changes have been inserted in the regime of the continental shelf (definition, split regime in respect of exploitation and scientific research, delimitation). The high seas regime has also been modified in many aspects, mostly because of the establishment of the regime of the exclusive economic zone. Even the contiguous zone has not retained all its 1958 characteristics: it no longer necessarily covers a zone of the high seas contiguous to the territorial sea of the coastal state; there are no longer provisions on the delimitation of contiguous zones of states opposite or adjacent to each other; and a new topic the protection of archaeological and historical objects has been introduced in connection with the contiguous zone. In respect to those changes we have to stress that almost all of them have been incorporated in the new Convention without taking into account a thorough analysis of the changes in general customary law since the 1958 codification; they are the result of legislative negotiations at UNCLOS III. Thus, although the new Convention on the Law of the Sea contains the results of a previous codification, it is a pretence to speak of the codification (Preamble, para. 7). In discussing the relation of the new Convention to the previously existing law, there were opinions expressed at the Conference that the new Convention should supersede the 1958 Conventions erga omnes. The more usual and realistic solution prevailed; it has been provided for that the law of the Sea Convention shall prevail over the 1958 Geneva Conventions only between states parties to the new Convention (Art. 311 (1)). While this provision is strictly in accordance with international law rules concerning the application of succesive treaties relating to the same subject-matter,4 the same cannot be concluded for para. 2 of Art. 311, providing:

its provisions, or at least the basic principles, reflect existing customary law. (cf. Bouchez L.J., Some Reflections on the Present and Future Law of the Sea, in: The Present State of International Law and Other Essays Written in Honour of the Centenary Celebration of the International Law Association 1873-1973, (1973) p. 144. The International Court of Justice confirmed that some of the basic articles (1-3) of the Continental Shelf Convention reflect customary law (North Sea Continental Shelf Judgment I.C.J. Reports 1969, p. 39.) Article 30 of the 1969 Vienna Convention on the Law of Treaties.

16

2 LOS CONVENTION AND CUSTOMARY LAW

This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.

The correct interpretation of this provision seems to be that the Convention shall alter the rights and obligations of States Parties which arise from other agreements incompatible with the new Convention and which do affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. By altering the rights and duties of States Parties to the Convention, the rights and duties of contracting States to such other agreements which are not parties to the new Convention could also be affected. That is why this rule is not in accordance with the principle pacta tertiis nec nocent nec prosunt5 and it gives the impression that the drafters of the Law of the Sea Convention wish to consider this instrument as a treaty of a higher rank than other treaties in the field. The rule on obligations under other conventions on the protection and preservation of the marine environment would have the same effect of predominance of the Conventions provisions (Art. 237(2):
Specific obligations assumed by States under special conventions, with respect to the protection and preservation of the marine environment, should be carried out in a manner consistent with the general principles and objectives of this Convention.

If our interpretation of the above provisions is correct, it is difficult to say now what the consequence of these unusual and unclear rules will be upon the implementation of the Convention and other agreements in the field of law of the sea.

3.

THE CONVENTION AND THIRD STATES

Subject to the considerations in the preceding paragraph, the Law of the Sea Convention is res inter alios acta for States and other entities which do not became party to it. Being an international treaty, it will have legal effects for third parties only in as far as it reflects customary international law. As has been already said, it is not our task to deal with the problem of the Conventions provisions being declaratory of general international law; we have to study the impact of the Convention and the Conference itself on customary law.

See B. Vukas, Relativno djelovanje medunarodnih ugovora (Relativity of International Treaties), (1975) pp. 62-65.

II SOURCES OF THE LAW OF THE SEA

17

The phenomenon of rules set forth in a treaty becoming binding on third States as customary rules of international law has been confirmed by scholarly writings, judicial decisions and by the Vienna Convention on the Law of Treaties (Art. 38).6 The International Court of Justice also confirmed the acceptability of such a development:
There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes one of the recognized methods by which new rules of customary international law may be formed.7

In the Courts opinion, in order to pass into the general corpus of international law, the provision concerned should be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law.8 Besides that characteristic, for such a translation of a conventional rule, the Court requires a demonstration of the wide acceptance of the new rule, which can sometimes be expressed in only a short period of time. It seems that in the Courts view acceptance by the international community would be manifested either by a very widespread and representative participation in the convention..., provided it included that of States whose interests were specially affected9 or when State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occured in such a way as to show a general recognition that a rule of law or legal obligation is involved.10 Because of the present status of the Convention, only one of the elements required by the International Court of Justice the possible fundamentally norm-creating character of the Conventions provisions could now exist. As the other two elements state practice (particularly of states non-parties) and opinio juris sive necessitatis are lacking, the method explained by the Court could create customary rules in the years following the signature and the entry into force of the Convention. However, we share the doubts of R.R. Baxter concerning the independent value of the vague term norm-creating character, when he said at the Hague Academy:
It may be that the term norm-creating is designed to evoke the familiar distinction between trait-loi and trait-contrat. However, it is submitted, with all respect to the Court, that if a rule

7 8 9 10

Sohn L.B., Cases and Other Materials on World Law, (1950) p. 1008; Fitzmaurice, G. in: UN Doc. A/CN.4/ 130, pp. 39 and 80-85; Baxter, R.R. Treaties and Custom, 129 Collected Courses of the Hague Academy of International Law (1970), pp. 57-75; Marek, K. Le problme des sources du droit international dans larrt sur le plateau continental de la mer du Nord, 6 Revue Belge de Droit International, (1970) pp. 57 and 73. North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 41. Ibid., p. 42. Ibid., p. 42. Ibid., p. 43. See also Marek, K., op. cit., pp. 58-59.

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does pass into customary international law, it is norm-creating and that the result of the process will therefore be decisive of the nature of the rule.11

Without the possibility of applying the norm-creating criterion prior to the State practice, this notion is of little help in our endeavour to study the impact of the work of the Conference and the Convention on customary law.

4.

THE CONSEQUENCES FOR CUSTOMARY LAW

The adoption of conventional rules can have various consequences for customary law. Conventional solutions can be the essence of the creation of customary rules in fields not previously covered by customary law; can provoke the creation of new customary provisions which replace existing ones; their influence may be the partial revision or amplification of existing customary rules. In some instances of modification or supplementation, it is hard to distinguish the establishment of new customary law from mere codification. Although the influence of a legislative international conference on the further development of customary law is a continuous process, the intensity of which depends upon the fate of its product the international treaty, the impact of UNCLOS III has at this very moment two distinct basic aspects: the influence already achieved, and the anticipation of the further impact of the adopted Convention. In this short report we shall deal with both aspects simultaneously, discussing only the most significant examples of such an impact; we cannot engage in a thorough systematic analysis of the impact of all the new conventional solutions on customary law. Taking into account the present stage of the Conference, and the present status of the Convention, it is important that in support of the view that this Conference has already influenced customary law, such authorities as the Special Representative of the SecretayGeneral to the Third United Nations Conference on the Law of the Sea, Bernardo Zuleta, can be quoted. As early as 1980, he wrote:
...this Conference is already exercising a significant impact on the development of the law of the sea and is undoubtedly moulding the structure of the new maritime law. In this respect the Conference is already reforming, so to speak, the law of the sea. This reform is particularly evident in certain areas of the law. For instance, there seems to be general agreement at the Conference on a breadth of twelve miles for the territorial sea and many members of the international community hold that a 12-mile territorial sea now forms part of international customary law.12

11 12

Baxter, R.R., op. cit., p. 62. See also Marek, K., op. cit., p. 58. Zuleta, B., Introduction 17 San Diego Law Review (1980), pp. 520-521.

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There are solid reasons for the conclusion that one of the main innovations in the law of the sea agreed upon at UNCLOS III the regime of the Exclusive Economic Zone already forms part of the corpus of customary law of the sea.13 There are several arguments in support of such a conclusion. More than eighty states throughout the world established an Exclusive Economic Zone after the drafting of the basic principles of that regime at the Conference; these principles are being copied in the majority of national laws on the economic zone.14 Some coastal states only proclaimed, temporarily, exclusive fishing zones, but also within the 200 miles limit. Even the majority of States having a territorial sea extending to 200 miles do not claim more rights in this area than permitted by the Exclusive Economic Zone regime.15 Specialized international agencies plan their activities taking into account the existence of the regime of the Exclusive Economic Zone. For example the Food and Agricultural Organization (FAO) elaborated a study on the necessary assistance for developing States in the exploration and exploitation of their Exclusive Economic Zones.16 Scholars from various States and representing different conceptions of the law of the sea agree on the adoption of the Exclusive Economic Zone regime in general international law.17 The establishment of that new regime in customary international law means that the possible failure of the Convention in respect of its ratification or entry into force could not have any bearing on its further existence as general law. Such a conclusion concerning the regime of the Exclusive Economic Zone necessarily means that all the basic principles constituting this regime are also part of customary law. Once we claim that the regime of the economic zone has been adopted in customary law, that means that fundamental norms concerning the rights and duties of coastal as well as other States do not depend upon the number of ratifications of the law of the Sea Convention or on the attitude towards that Convention of States non-parties. It should be more difficult to envisage the position of the international community in regard to more detailed rules if the Convention did not enter into force or were accepted by only a small number of States. Would an international court consider as obligatory upon third States the Conventions provisions

13 14

15 16 17

Cf. Zuleta, B., op. cit., p. 521. See: Department of Public Information, Press Section Reference Paper No. 18, A Guide to the New Law of the Sea... and the Third United Nations Conference on the Law of the Sea, (United Nations 1979) pp. 49-54; World Fisheries and the Law of the Sea, (FAO, 1980) p. 20. Cf. Hudson, G., Fishery and Economic Zones as Customary law, 17 San Diego Law Review (1980), pp. 678-679. Programme dassistance au developpement et a la gestion des peches dans les zones economiques, COF I/81/4 Mars 1981. On the basis of a thorough analysis of State practice Carolyn Hudson also reaches the conclusion that claims to both fishery and economic zones satisfy the prerequisites for being considered customary law. However, we cannot share her conclusion that the 1958 High Seas Convention is reconciliable with the concepts of fishery and economic zones. Hudson, C., op. cit., pp. 672 and 688-689.

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on the right of States with special characteristics (Art. 70) or the provisions on delimitation of the Exclusive Economic Zone between States with opposite or adjacent coasts (Art. 74)? We could argue yes or no. The acceptance of the specific regime of the Exclusive Economic Zone at the Conference was possible due to the compromises reached in relation to the 12-mile breadth of the territorial sea and the separation of the new regime from the high seas. The establishment of the maximum breadth of the territorial sea as 12 nautical miles at UNCLOS III cannot be considered a significant innovation in comparison with the previous state of international practice. Although some States claimed territorial seas up to 200 miles, and some maritime powers still defended the 3-mile rule, the majority of coastal states extended their territorial seas up to 12 miles, basing their decision on a wide interpretation of Art. 24(2) of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. Taking into account the adherence of States to the 12-mile limit prior to, and especially after the compromise reached at the Conference, as well as the linkage of the acceptance of that limit with the establishment of the Exclusive Economic Zone regime, it is not presumptuous to claim that the 12-mile rule today forms part of general, customary, international law.18 One consequence of the definite acceptance of the 12-mile territorial sea was the elaboration of the transit passage regime for the majority of straits used for international navigation where there exists no safe route through the high seas or the Exclusive Economic Zone. For maritime powers, the replacement of the innocent passage regime for straits with a more liberal regime was a sine qua non for their acceptance of the 12mile territorial sea. Thus, the establishment of the transit passage regime should be considered part of a package deal also including the establishment of the Exclusive Economic Zone and the 12-mile territorial sea. Nevertheless, in view of the opposition of some States bordering straits to some elements (overflight) of that genuine innovation in the law of the sea, it would be rather premature to claim that this new regime far straits is applicable in respect of all States. Some sort of confirmation of the wide acceptance of that regime by the international community, besides its adoption as part of an as yet unratified treaty, would be necessary in order to reach the conclusion that ships enjoy that regime in relation to all States. Once we have expressed doubts in respect to the general application of such UNCLOS achievements as the transit passage regime, it would be extremely difficult to claim that other amendments or innovations in the law of the sea have already been transformed into customary law. Who could claim that the unexpected decision to retain the contiguous zone and to transfer it to another area of the sea is obligatory upon all States? Why should the enchroachment upon the Common Heritage of Mankind in the form of the so-called

18

For the relevant data see in: Lucchini L., Voelckel, M. Les Etats et la mer, le nationalisme maritime, (Paris: Documentation Franaise, 1978) pp. 236-238; See also Zuleta B., op. cit., p. 521.

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Irish formula for the extension of the continental shelf regime be binding upon States Parties to the 1958 Continental Shelf Convention who decide not to ratify the new Convention? Is the regime of islands (Art. 121), which many states were striving to amend right up, to the end of the Conference negotiations, a customary regime? Our answers to all these questions are negative. Less clear is the answer in relation to archipelagic waters, where the new regime is based on the long-standing claims of archipelagic States, with no opposition at the Conference. Our hesitation in proclaiming UNCLOS solutions as customary law goes further and applies also to minor changes in areas previously regulated by customary or conventional law, unless they can be qualified as codification. For example, one might be tempted to qualify the new provisions within the territorial sea regime as a more precise formulation and systematization of existing customary law, and thus a codification. We wonder, though, whether this could be claimed for example in relation to Art. 21, which specifies subject-matters in respect of which the coastal State may or may not adopt laws and regulations, or in relation to Art. 22 on sea lanes and traffic separation schemes? Many of these changes or additions to the law existing prior to UNCLOS III await further developments to confirm their applicability erqa omnes. The majority of them are reasonable rules, based on other international agreements or practices, and they could be absorbed in customary law more easily than many other parts of the new Convention. For the time being, they are only the end products of long negotiations, expressed in the form of unratified convention provisions. The major issue dealt with by UNCLOS III, the regime of the sea-bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction (the Area) and of the resources of the Area, should also be mentioned in this survey, although the role of the Conference in respect of the Common Heritage of Mankind concept was that of codification. We are of the opinion that the principles embodied in General Assembly Resolution 2749(XXV) Declaration on Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction were already principles of customary law when UNCLOS III started. The arguments for such a conclusion are well known, although not unanimously accepted.19 In our view, prior to the elaboration and adoption of the Declaration, there was no freedom to exploit the resources of the deep sea-bed as one of the freedoms of the high seas. As there existed no human activities in those inaccessible areas, there was no need for the development of legal rules, and thus there were no international norms (conventional or customary) developed in relation to these areas. The parallel with the situation in regard to the air and outer space prior to the beginning of the use of those spaces is obvious.

19

Zuleta, B., op. cit., p. 523.

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Into that legal vacuum, the 1970 Declaration inserted a set of principles expressing the concept that the sea-bed and its subsoil were the Common Heritage of Mankind. In our view, this concept and the principles on which it is based had become general customary law prior to the start of UNCLOS III.20 In favour of that assertion, we can quote not only the impressive number of States voting in favour of the 1970 Declaration (108), but also their decision to establish an international regime on the basis of the principles of that Declaration. UNCLOS III was convened for the purpose of developing that regime. The acceptance of the principles of the Declaration in the Convention (Part XI, Section 2), with no opposition, should dissipate all suspicions in relation to the general character of these principles. The sixth preambular paragraph to the Convention can be quoted here; the States participating in the Conference expressed their desire by this Convention to develop the principles embodied in Resolution 2749(XXV) of 17 December 1970.... The above conclusions do not mean that we claim that other sections of Part XI could be considered customary law; only favourable future circumstances could lead to such a development. However, given the present state of affairs, when some States have prefered a mini-treaty solution to a general international convention, we should point out one of the principles from the Declaration, thus obligatory upon all States. We have in mind principle 9:
On the basis of the principles of this Declaration, an international regime applying to the area and its resources and including appropriate international machinery to give effect to its provisions shall be established by an international treaty of a universal character, generally agreed upon.

For the purpose of establishing that regime, UNCLOS III was convened, and the Law of the Sea Convention is the envisaged treaty of a universal character. The conclusion of any mini-treaty, endangering the universality of the Convention, is a breach of the legal obligation created on the basis of the above principle. The Group of legal experts on the question of unilateral legislation in the Group of 77 concluded in 1979:
... any unilateral act or mini-treaty is unlawful in that it violates these principles (of the 1970 Declaration), for that regime, whether provisional or definitive, can only be established with the consent of the international community as the sole representative of mankind and in conformity with the system determined by the international community.21

20

21

Such is also the conclusions of the Group of legal experts on the question of unilateral legislation in the Group of 77; UN Doc. A/CONF.62/77 in: Third United Nations Conference on the Law of the Sea, Official Records, Volume XI, p. 82. Ibid., p. 82.

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5.

THE FUTURE OF THE CONVENTION

As with many previous stages of UNCLOS III, further developments are unclear. One can only guess what the consequences of the conclusion of such a treaty will be for the decision of developed states on the signature and ratification of the law of the Sea Convention and the work of the Authority. Anyhow, it is difficult to envisage major obstacles to the early entry into force of the new Convention, at least for the majority of developing States and some of the developed countries.22 Once the Convention enters into force, the basic prerequisite for the transformation of its provisions into customary law will be fulfilled, although we have shown that some of the basic achievements of UNCLOS III have entered into general law even during the Conference. Every step in the direction of the final entry of the Convention into the body of positive treaty law (adoption, signature, accessions, ratifications) gives an impetus to the acceptability of the Conventions solutions even outside the province of treaty law. After the entry into force of the Convention, the practice of States Parties in the implementation of its provisions, as well as the attitude of non-parties, coupled with opinio juris, can produce customary law on the basis of the provisions of the Convention. Such a possible development should be verified very carefully in relation to each particular regime, institution, principle and provision. Although it is difficult to accept the criterion of norm-creating provisions in determining the creation of new customary law on the basis of conventional rules, it is obvious that not all treaty provisions would undergo such a transformation with equal ease. The radicalism of any change in comparison with the existing law would present an obstacle in such a process, and the reasonableness of a new treaty provision the main guarantee of its appeal for non-parties. Thus, for example, one can foresee with more certainty the transformation into customary law of the provisions concerning enforcement in case of pollution of the marine environment, than of the changes in the continental shelf regime. Institutional provisions, such as provisions on the creation, composition and functioning of international bodies, can never pass into customary law binding all States. The provisions of the Convention, as well as of the annexes thereto, relevant to the Authority, the Law of the Sea Tribunal or the Commission on the Limits of the Continental Shelf could be applicable to States and other entities not parties to the Convention only if they

22

We disagree with J. King Gambles conclusion that it will be years before UNCLOS III accumulates enough ratifications to enter into force (King Gamble, J. Post World War II Multilateral Treaty-Making: The Task of the Third United Nations Law of the Sea Conference in Perspective, 17 San Diego Law Review, (1980, p. 540). In our view, the majority of States that voted for the adoption of and signed the Convention (and of those that abstained) will wish to participate in the work of different bodies created under the provisions of the Convention and in all the other forms of its implementation as early as possible.

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themselves provided for such an application and if third parties agreed to submit themselves to these conventional rules. However, one of the Conventions characteristics is that it almost completely ignore States which do not become parties to it. Although this is an understandable stand by a Conference the purpose of which was to establish a charter for the oceans applicable to the whole international community, it is difficult to ignore the fact that there is no international treaty of which all States are parties. In view of that reality, the question of the rights (and duties) of States non-parties concerning the Common Heritage of Mankind which was regulated in detail in the Convention remains unsettled. In this respect, the 1970 Declarations principles, applicable to all States, seem to be limited by the Convention to States Parties. A consequence of our above conclusion, that the principles contained in the 1970 Declaration represent general customary international law, would be the necessity for the Authority to determine the situation of States who temporarily or permanently remain outside the framework of the Convention. They should have some rights in relation to the Common Heritage of Mankind, derived from the regime established in the Convention. As such States themselves choose the status of non-parties to the Convention and nonparticipants in the regime established in accordance with the Declaration, in no case do they have the right to establish particular regimes outside the Law of the Sea Convention (either by unilateral legislation or by a mini-treaty) contrary to the sea-bed regime established by UNCLOS.

Chapter 3

GENERALLY ACCEPTED INTERNATIONAL RULES AND STANDARDS*

1.

RULES OF REFERENCE IN THE LOS CONVENTION

The United Nations Convention on the Law of the Sea (LOS Convention), as well as the Geneva Conventions in an earlier stage of the development of the law of the sea, contain only the main legal norms forming the law of the sea. The LOS Convention, once it enters into force, will represent the basic, constitutional treaty of the international legal order of the oceans which, in addition, includes other treaties, customary international law, and national legislation. For this reason, the provisions of the LOS Convention often refer to other legal norms, international as well as municipal. The interdependence of Part XII of the LOS Convention (Protection of the Marine Environment) with the rest of the legal rules regulating the protection of the seas is particularly accentuated. The provisions of this part of the Convention represent the codification and progressive development based on the previously concluded treaties (e.g., the 1954 International Convention for the Prevention of Pollution of the Sea by Oil) and general international law (customary international law and general principles of law) and the principles and recommendations of the 1972 Stockholm Declaration on the Human Environment. On the other hand, the Convention itself (Article 197) establishes the duty of states to adopt additional provisions in the field:
States shall co-operate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.

Apart from the further development of international law, the LOS Convention (Article 194, paragraph 1) envisages the duty of States to take measures including the

First published in Implementation of The Law of the Sea Convention Through International Institutions, Proceedings of the 23rd Annual Conference of the Law of the Sea Institute, June 12-15, 1989, Noordwijk aan Zee, The Netherlands (Alfred H. A. Soons, ed.), published by the Law of the Sea Institute Wiliam S. Richardson School of Law, University of Hawaii, Hononlulu, 1990; published also in Zbornik Pravnog Fakulteta u Zagrebu, 39 (1989), No. 4.

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3 GENERALLY ACCEPTED RULES

adoption of appropriate national legislation in order to implement its provisions. In cases when the Convention refers to the duty of States to take legislative measures to prevent, reduce, and control pollution of the environment from different sources the terms laws and regulations are used.1 According to Timagenis, the term regulations seems to mean secondary national norms in contrast to laws denoting principal national norms.2 These two terms will probably cause no serious problems of interpretation, although they do not cover all the relevant sources of law in different internal legal systems. Be that as it may, the relation between the LOS Convention and internal law is not a subject to be discussed in this paper.

2.

INTERNATIONAL RULES AND STANDARDS: DRAFTING HISTORY AT UNCLOS III

Besides the general provision concerning the cooperation of states in formulating and elaborating international rules, standards and recommended practices and procedures (Article 197), the LOS Convention refers to the establishment and enforcement of international rules with respect to particular sources of pollution. Moreover, many provisions refer to other international rules with respect to questions connected with the protection and preservation of marine environment (safety at sea, sea lanes and traffic separation schemes, removal of abandoned or disused installations or structures, etc.). Due to the different contexts in which the Conventions provisions refer to other international rules, the drafters of the LOS Convention were not able to use a uniform terminology in that respect. In 1978 the UNCLOS Drafting Committee drew a list of terms used in the informal draft convention (the Informal Composite Negotiating Text ICNT).3 Under the heading international rules and standards twenty-one expressions used in the draft convention were classified, out of which eighteen were used in provisions directly or indirectly dealing with the protection of the marine environment.4 A multitude of terms was used in order to denote international rules relative to the prevention, reduction, and control of the marine environment to which they refer. The terms rules, standards, regulations, procedures and practices were used in different combinations and they were characterized as generally accepted, international, applicable, internationally agreed,

1 2 3 4

LOS Convention, Articles 207(1); 208(1); 210(1), 211(2), 212(1). Gregorios J. Timagenis, International Control of Marine Pollution, Volume 2 (Dobbs Ferry, New York: Oceana Publications Inc., 1980), note 44 at p. 603. Informal Composite Negotiating Text, Doc. A/CONF.62/WP.10 (15 July 1977). Drafting Committee, Informal Paper 2 (8 August 1978), A preliminary list of recurring words and expressions in the Informal Composite Negotiating Text which may be harmonized, pp. 26-30.

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27

global, regional, relevant, and specified. These adjectives were also combined in different ways; most often were used the combinations generally accepted international and applicable international. As harmonization was a proclaimed purpose in the further work of the Drafting Committee, several approaches were suggested in order to reduce the number of the words used. The English language group considered two approaches for international measures:
a) The number of different words appearing in the text could be reduced and the use of one or more of these in various articles could be harmonized; (i) There would be no need to refer both to rules and regulations in the same provision. Many preferred rules, on the understanding that the inclusion of the idea of regulations in the word rules would be made clear; (ii) In addition to one of the words in (i), it would be desirable to choose one word from among standards, practices and procedures making clear that the words deleted are deemed to be included in those retained... b) A reasonably brief term could be defined in the Convention to include rules, regulations, practices and procedures...5

Three weeks later, the coordinators of the language groups recommended that the following questions be referred to the language groups:
a) whether it was desirable that the number of different words appearing in the text should be reduced; (i) by the use of a term which could be defined in the Convention to include rules, standards, regulations, practices and procedures; (ii) by choosing one or more words from among those which now appear in the text. With respect to (ii), it has been suggested that either the word standards or norms be used, or that the word standards be used in English and the word normes and normas be used in French and Spanish. b) whether a distinction should be made between words such as rules, regulations and standards and other words such as practices and procedures.6

5 6

Drafting Committee, Informal Paper 4/Rev. 2 (5 August 1980), Some notes on the preliminary reports of the Chinese, English, French, Russian and Spanish language groups on Informal Paper 2, p. 17. Drafting Committee, Informal Paper 15/Rev. 1 (26 August 1980), Draft Recommendations of the Coordinators of the Language Groups for the purpose of Consideration in the Language Groups, p. 3.

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All the quoted questions and suggestions demonstrated the conviction of the drafters of the LOS Convention that the multitude of words used correspond to the existing variety of international measures to which the Convention refers. The quoted initiative within the Drafting Committee intended only to simplify the terminology by reducing the number of terms used. However, according to all the quoted suggestions, the terms used were to be defined in such a way as to make clear that the words deleted were deemed to be included in those retained. The eventual result of this approach was that not a single word from the ICNT was omitted in the final text of the LOS Convention and the long list of expressions with respect to international rules and standards was not simplified. On the contrary, even a new expression was inserted regarding enforcement with respect to polluting from activities in the Area (Article 215)! The varied terminology used in the rules of reference in the environmental provisions of the LOS Convention caused problems of interpretation even with the participants in the UNCLOS negotiations.7 Much worse is the position of commentators who did not have the opportunity of participing in the mostly unofficial negotiations at UNCLOS III. Thus, Alan Boyle claims that the rules of reference are with no obvious uniformity in terminology or clarity of meaning.8 However, it is not only the variety of the used terminology that causes confusion; there are cases of different expressions used with respect to the same source of pollution in different articles of the LOS Convention. Thus, stating the duties of ships during transit passage, the Convention provides that they shall
comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships. (Article 39(2)(b)). (emphasis added)

On the other hand, in Part XII with respect to pollution of ships the duty of States to establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels... has been provided for (Article 211(1)) (emphasis added). Rules and standards are the only terms used also with respect to enforcement with respect to polluting from ships (Articles 217, 218 and 220). Unnecessary differences are also created between the UNCLOS III rules and the corresponding provisions in the Geneva Conventions. Thus, e.g., the 1958 Convention on the High Seas provides that in taking measures for ships under their flag necessary to ensure safety at sea, States are required to conform to generally accepted international standards (Article 10). The corresponding provision in the LOS Convention requires

7 8

Timagenis, loc. cit. A.E. Boyle, Marine Pollution Under the Law of the Sea Convention, American Journal of International Law 79, no. 2 (April 1985): 347-372 at p. 355.

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conformity of national measures to generally accepted international regulations, procedures and practices... (Article 94(5)). Indecisiveness in drafting and arbitrariness of the final solutions is even more transparent with respect to the adjectives used to characterize the terms used for differences between the ICNT and the final text of the LOS Convention. But in the course of negotiations and in the work of the Drafting Committee many of these solutions were questioned. In August 1980 the English language group proposed the substitution of the words generally accepted for the word applicable in the references to international regulations or international rules and standards in Articles 42(1)(b), 94(4)(c), 218(1) and 219. Moreover, it was suggested that the words generally accepted be added to Articles 208(3) and 210(6) before the respective references to international rules and global rules.9 The coordinators of the language groups invited all language groups to give their views on the proposals of the English group.10 The proposals were still under consideration by the Drafting Committee at the beginning of 1981,11 but the final result was negative, and nothing has in this respect been changed in the Conventions text. Taking into account the drafting history of the expressions concerning international rules and standards it is clear that it would be a vain attempt to try to comment on all these expressions we find in the UNCLOS provisions on the protection and preservation of the marine environment. Thus, the scope of the present paper is limited to the generally accepted international rules and standards. This expression is contained in four provisions dealing with the law-making and enforcement with respect to pollution from ships in Articles 211(2), 211(5), 211(6) and 226(1)(a). In a slightly different variant (generally accepted international rules or standards (emphasis added)) we find it in Article 21(2), dealing with norms concerning design, construction, manning, or equipment of foreign ships. This difference is irrelevant; namely, the first variant is used in Article 211(6)(c) in respect to the same subject as the one dealt with in Article 21(2). Article 211 of the LOS Convention deals with international rules and national legislation to prevent, reduce and control pollution of the marine environment from vessels. It proclaims the obligation of States to establish international rules and standards for this purpose (Article 211(1)). According to this Article, States shall accomplish this duty acting through the competent international organization or general diplomatic conference (emphasis added). The intention of UNCLOS III to have only one, global

10 11

Drafting Committee, Informal Paper 4/Rev. 2, p. 17. For some other suggestions see: W. van Reenen, Rules of Reference in the new Convention on the Law of the Sea, in particular in connection with the pollution of the sea by oil from tankers, Netherlands Yearbook of International Law 12 (1981): 3-44 at pp. 10-11. Drafting Committee, Informal Paper 15/Rev. 1, p. 3. Drafting Committee, Informal Paper 18 (16 January 1981), Specific Items still under the consideration by the Drafting Committee, pp. 1-2.

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international legal order with respect to pollution from vessels is obvious, as with respect to other sources of pollution the international legislative activity of States is envisaged through competent international organizations or diplomatic conference (emphasis added). Here, with respect to pollution from vessels only general diplomatic conference is foreseen and, on the other hand, it is common knowledge that the singular used instead of competent international organizations meant the reservation of the international legislation for the International Maritime Organization (IMO).12 The confirmation of this conclusion is to be found also in Article 2 of Annex VIII (Special Arbitration) to the Convention, where it is said that the list of experts in the field of navigation, including pollution from vessels and by dumping shall be drawn and maintained by the International Maritime Organization. However, it should be borne in mind that the expression generally accepted rules and (or) standards is used also with respect to the design, construction, manning or equipment of foreign ships (Article 21(2) and 211(6)(c)). At least with respect to the manning of ships another international organization is also competent. We have in mind the International Labor Organization, whose conventions and recommendations deal with issues relevant to maritime safety and, indirectly, with the prevention of pollution (e.g., Convention (No. 147) concerning Minimum Standards in Merchant Shipping, 1976, and Recommendation (No. 155) concerning the Improvement of Standards in Merchant Shipping, 1976).13 It goes without saying that the treaties to which refer the provisions of the LOS Convention may be applied as between States Parties to this Convention once it enters into force only in accordance with its general provisions on its relation to other conventions and international agreements (Article 311). Moreover, in respect to the

12

13

See: E. Miles, On the Roles of International Organizations in the New Ocean Regime, The Law of the Sea in the 1980s, Proceedings of the Law of the Sea Institute Conference (October 20-23, 1980, Kiel, Germany): 383-445 at pp. 425 and 427; O. Rojahan, National Jurisdiction and Marine Pollution from Ships: The Future Role of IMCO Standards, Ibid., pp. 464-482 at p. 465. The exclusive competence of IMO in respect of all the questions related to navigation was proved also in respect of Art. 22(3)(a) of the Convention. Namely, the ICNT/Rev. 2 (Doc. A/CONF. 62/WP. 10/Rev. 2 of 11 April 1980) provided that in the designation of sea lanes and the prescription of traffic separation schemes the coastal State shall take into account the recommendations of competent international organizations. In its letter of 23 May 1980 (Al/B/ 1.02 CPS/TAH/aj) IMO (IMCO at the time) criticized this formulation stating that ...the nature of the problem is such that it can safely be dealt with by only one organization. IMCO has always been recognized as the competent body for this function, and it would be unfortunate if the use of the plural term organizations were to give the impression that other organizations are also expected to adopt such schemes. After this intervention, in the next version of the ICNT, the Conference changed the plural for singular (Art. 22(3)(a) of Doc. A/CONF/62/WP. 10/Rev. 3 of 27 August 1980). See also: IMO Doc. Implications of the United Nations Convention on the Law of the Sea, 1982 for the International Maritime Organization (IMO), Study by the Secretariat of IMO, Doc. LEG/MISC/1 of 28 July 1987, p. 2 (para. 5), p. 34 (para. 72). See: van Reenen, op. cit., pp. 34-36.

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performance of the duties under other conventions on the protection and preservation of the marine environment, paragraph 2 of Article 237 should be applied:
Specific obligations assumed by States under special conventions, with respect to the protection and preservation of the marine environment, should be carried out in a manner consistent with the general principles and objectives of this Convention.

Indirect reference to IMO resolved at least the problem of the legislative authority with respect to pollution from vessels. However, the terms rules and standards remain to be interpreted. Even more complicated is the task of finding a sound interpretation of the expression generally accepted, used in paragraph 2 of Article 211 with respect to rules and standards. Namely, Article 211(2) provides that laws and regulations adopted by States shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference.

3.

RULES AND STANDARDS AND THE LEGISLATIVE ACTIVITY OF IMO

The drafting history of the rules of reference and the final text of the LOS Convention caused uncertainties even in the comments of the participants at UNCLOS III. Thus, Timagenis admits:
The difference between rules and standards is not absolutely clear.14

However, Timagenis and some other commentators are not eager to engage in the analysis of the difference between the two terms.15 Van Reenen concludes that standards are a special sort of binding rule.16 He draws this conclusion from the habitual structure of IMO Conventions:
A characteristics of most of these conventions is that the substantive rules, in casu technical provisions, are laid down in annexes. In general, the rules concerned with the scope of the treaty, those regarding the legal consequences of violation of the substantive rules and the provisions on supervision are found in the main body of the treaty. It is submitted that these latter rules may appropriately be qualified as international rules, and the technical provisions as international standards.17

14 15 16 17

Timagenis, op. cit., note 44 at p. 603. See also: Rojahan, op. cit., pp. 474-480. Van Reenen, op. cit., p. 12. Ibid., p. 25.

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3 GENERALLY ACCEPTED RULES

Boyle poses the question of the distinction between rules and standards in the framework of the IMO legislative activity:
The meaning of rules as a form of potentially binding obligation is clear enough, but are standards intended to refer, by contrast, to resolutions of the International Maritime Organization (IMO) and other such non-binding instruments, or is the distinction merely descriptive of different categories of obligation?18

His answer is that standards, like rules, should be restricted to those laid down in instruments intended to be binding, as States should be allowed the freedom to make collective recommendations without their becoming instantly and indirectly a form of binding obligation.19 Under the Convention of the International Maritime Organization, IMO is entrusted with the drafting of conventions, agreements, or other suitable instruments and with the making of recommendations upon, inter alia, the encouragement of the general adoption of the highest navigation and the prevention and control of marine pollution from ships... (Article 3, Article l(a)). These constitutional rules as well as the following quotation from a paper presented by the Secretariat of IMO to UNCLOS III may leave the impression that standards are not to be found in treaty instruments adopted within the framework of the Organization, but in non-treaty instruments which do not have a binding force:
IMCOs work in the various fields within its competence consists of the preparation and adoption of Conventions and other appropriate multilateral treaty instruments in cases where governments consider that the issues involved require, or are suitable for, regulation through formal treaty provisions. Where the adoption of the treaty instruments is not considered to be either appropriate or timely in a particular case, IMCO promotes the adoption and implementation of recommendations, codes, uniform standards, recommended practices, etc. While not legally binding on governments, these recommendations, codes, etc., represent agreed international standards which governments find both acceptable and useful for incorporation, in whole or in part, in their national regulatory regimes.20

However, the instruments passed in IMO prove that standards, i.e., technical norms, are contained both in non-treaty instruments as well as in the IMO Conventions. E.g., standards are contained both in the Recommendation on International Effluent Standards

18 19 20

Boyle, op. cit., pp. 356-357. Ibid., p. 357. Work of the Inter-Governmental Maritime Consultative Organization (IMCO) Regarding the Development and Adoption of International Standards in Shipping and Related Matters, Doc. 08849 Presented by the Secretariat of IMCO, p. 2. It is interesting to note that in its title the document uses the term standards as embracing all the norms (binding and nonbinding) adopted within the framework of IMCO.

II SOURCES OF THE LAW OF THE SEA

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and Guidelines for Performance Tests for Sewage Treatment Plants (Resolution MEPC.2(VI)) as well as in Annex I (Regulations for the Prevention of Pollution by Oil) to the 1973 International Convention for the Prevention of Pollution from Ships. The particular case of IMO is just but an example of the general situation with respect to the international standards which, according to Contini and Sand, may be divided into three categories: strictly mandatory standards, non-mandatory standards, and potentially mandatory standards.21 These two scholars stress also the variety of international instruments in which standards can be incorporated:
Yet technical standards have long (indeed, since the 19th century) been a part of numerous multilateral agreements ranging from telecommunications, aviation, health and meteorology to marine resources and wildlife conservation. Under various names and titles, international standards or practices their quasi-binding force often vaguely and misleadingly couched in terms of recommendations or international legislation have emerged as a distinct type of norms, characterized by a high degree of flexibility and adaptability in line with their predominantly technical-operational objectives.22

This historical summary as well as the particular situation in IMO brings us to the conclusion that the term standards should be understood as having an extra-legal meaning of a level of quality or achievement; it can be contained both in a convention (including its annexes) as well as in a non-treaty instrument an instrument not having a binding force. The term rule, on the other hand, should be interpreted as meaning all the international norms which determine the duties and rights of States with respect to the protection of the environment. We share the interpretation of the term rule given by van Reenen:
...when word rules is used in a rule of reference, there is no possible doubt that the rules in question are rules of positive public international law, i.e., treaty rules which are in force, or rules of customary law. In addition, the word rules covers decisions of international organizations which are binding on the member states pursuant to the constitution of the organization in question, or decisions which are not binding initially but have become binding as customary law.23

The above meaning of the terms standards and rules for which we have opted, brings us to the conclusion that the two notions will in some cases overlap; i.e., in cases where

21 22 23

P. Contini, P.H. Sand, Methods to Expedite Environment Protection: International Ecostandards, American Journal of International Law 66, no. 1 (January 1972): 37-59 at pp. 47-53. Ibid., p. 40. In the same sense see: Environmental Law An In-Depth Review, UNEP Report No. 2 (1981), p. 234. Van Reenen, op. cit., p. 8.

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3 GENERALLY ACCEPTED RULES

standards have been a binding force. However, there are similar situations of vagueness and overlapping with respect to other terms used in this field. E.g., there is no clarity in the use of the terms practices and procedures.

4.

THE ENIGMA OF GENERAL ACCEPTANCE

I venture to call the expression generally accepted an enigma as it was very much so even for the IMO the organization designated as being competent with respect to pollution from vessels. In an Annex to the letter sent by C.P. Srivastava, Secretary-General of IMO to J. Alan Beesley, Chairman of the UNCLOS III Drafting Committee, the following question was posed:
In particular it would be helpful if further clarification could be given to make the distinction between the expressions generally accepted and applicable when used to refer to international rules and standards. In this connection it would be useful if it would be clearly indicated whether the term generally accepted rules and standards is intended to refer to international standards which have received sufficient international endorsement in an appropriate international forum, for example, by their adoption by the competent international body or by a diplomatic conference for generally application or, alternatively, whether rules and standards would be considered as being generally accepted only if they are contained in formal treaty instruments which are in force.24

Ignoring the problem of the distinction between rules and standards, scholars try to find a single explanation for the expression generally accepted used with respect to the IMO instruments. Daniel Vignes considers as generally accepted not only customary rules and jus cogens, but also technical and specific rules on navigation and pollution to which the international community has given a consent at the same time diffuse and general.25 Timagenis is mainly concerned with the interpretation of the term international rules itself, and he discusses the problem only in terms of treaty law. He opts for a solution in which a conventional rule could be considered as being international law, thus applicable to all States,

24 25

Letter dated 23 May 1980 (A1/B/1.02 CPS/TAH/aj). D. Vignes, La valeur juridique de certaines regies, normes ou pratiques mentionnees au TNCO comme generalement acceptees, Annuaire Franais de Droit International 25 (1979): 712-718 at p. 718.

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when the rule is ratified not only by the minimum number of States required for its entry into force but by a greater number of States, thus obtaining a wider acceptance, without, necessarily, becoming customary law.26

From his point of view, the addition of generally accepted to international rules serves only the purpose of reducing the uncertainty concerning the acceptance of an international rule.27 Van Reenen submits that the meaning of generally accepted corresponds to the criteria established by the International Court of Justice (ICJ) for determining whether certain treaty rules have become world-wide rules of customary law. He arrives also to the tentative conclusion that rules of general customary law can be based not only on treaty rules, but also on non-binding decisions of the competent international organization.28 O. Rojahan, impressed by the advantages of standard-setting with IMO over the procedure of treaty negotiation, bases his interpretation of the general acceptance test on the recognition of technical standards as practical and feasible:
...to become generally accepted, a technical standard must be carried by a consensus relating to its technological justification and economic feasibility. The test of general acceptance requires a technology-related judgment. This judgment must not be confused with the acceptance of a technical standard as legally binding...29

However, in order to become generally accepted, even according to Rojahan, a technical standard must have won the acceptance of something more than a simple majority of participating States including the major maritime States.30 The approval of technical standards may be expressed in the official adoption of a resolution dealing with technical regulations, the entry into force of technical annexes following simplified amendment procedures, the signature of a convention by a qualified majority of States or its adoption by a qualified majority.31 For Mario Valenzuela, a representative of IMO at UNCLOS III, the most reasonable interpretation is that the generally accepted rules and standards are those embodied in relevant IMO conventions in force. He bases his conclusions on the fact that these Conventions (e.g., the 1973/78 MARPOL instrument) provide stringent conditions for their entry into force (acceptance by a substantial number of States, having among them

26 27 28 29 30 31

Timagenis, op. cit., p. 605. See also pp. 606-607. Ibid., p. 607. He refers to the North Sea Continental Shelf cases; van Reenen, op. cit., pp. 11-12. Rojahan, op cit., p. 474. Ibid., p. 476. Ibid., pp. 467-478.

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3 GENERALLY ACCEPTED RULES

more than half of the tonnage of the worlds merchant fleet). This author shows a great deal of sympathy for the conclusions of K. Hakap, for whom international rules and standards having sizeable support among the maritime States most affected by their implementation could be characterized as quasi-customary law. However, Valenzuela did not dare to answer the question whether such conventions are applicable to all States, or only to those for whom they are in force.32 For Alan Boyle, as the object of the pertinent provisions of the Law of the Sea Convention is to bring about the widest possible application of international rules, the traditional freedom of States to refuse to ratify or apply relevant multilateral conventions should be limited. Thus, conventions intended to represent the international communitys most recent formulation of relevant rules and standards, should receive the ratification of enough States for their entry into force.33

5.

FINAL REMARKS

In the variety of meanings attributed to the expression generally accepted, flexible interpretations going beyond the parameters given by Article 38(1) of the Statute of the ICJ for the creation of customary law prevail. The reason for this flexibility is obvious: in order to increase the number of applicable international rules and standards for the protection and preservation of the marine environment, the rigid limits of applicable treaty law and the problems of ascertaining the existence of customary law are to be avoided. Such extensive interpretations are plausible in this case, taking into account the intentions of the drafters34 and the texts of the corresponding provisions of the LOS Convention dealing with other sources of pollution, where no extensive application was envisaged and the habitual terminology was used (intentionally agreed rules..., global and regional rules..., international rules...). However, the diversity and vagueness of the tests of general acceptance submitted by the quoted authors give an idea of the problems the international community will incur in applying the rules of reference which include the criterion of general acceptance. The reasonableness of the introduction of this new source of uncertainty in a legal order which is traditionally handicapped by the non-existence of an objective test for the establishment of rules of customary law and the newly invented notion of soft law is doubtful.

32

33 34

M. Valenzuela, IMO: Public International Law and Regulation, The Law of the Sea and Ocean Industry: New Opportunities and Restraints, Proceedings, Law of the Sea Institute Sixteenth Annual Conference (June 21-24, 1982, Halifax, Nova Scotia): 141-151 at pp. 143, 144-145, 151. See also: K. Hakap, Pollution in International Law (1981), p. 121. Boyle, op. cit., p. 356. See: Timagenis, op. cit., p. 606.

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In this perspective, the suggestion of Mario Valenzuela is both understandable and wise:
Since the Law of the Sea Convention does not clarify the interpretation of the terms generally accepted and applicable used to qualify international rules and standards, it is likely that states, either through IMO or by means of their practice at the national or regional levels, will have to determine their own interpretation.35

A recent study by the Secretariat of IMO also suggests that it would be necessary for the appropriate bodies of IMO to consider what guidelines IMO can usefully provide to States in regard of rules and regulations which are deemed to be generally accepted.36 I do agree that the appropriate bodies of IMO should indicate to the world community the level to which the IMO Conventions and IMO non-treaty instruments are formally accepted by States and applied in their practice. However, the expression generally accepted international rules and standards, and particularly its first part, require a thorough analysis and a more general answer. In this respect the already mentioned IMO study should be quoted again:
It is... to be noted that formal and authoritative interpretations of the 1982 Conventions provisions can only be undertaken by the States Parties to that Convention or, in appropriate cases, by judicial or arbitral tribunals provided for that purpose in the Convention itself.37

All the questions raised in this paper and in previous articles on this topic deserve an answer which will have a durable value with respect to the problem of the sources of international law. It would, therefore, be preferable to have an interpretation of all the questions related to the unclear expression generally accepted international rules and standards by an organ of such an authority as the United Nations International Law Commission or the International Court of Justice.

35 36 37

Valenzuela, op. cit., p. 151. See: IMO doc. LEG/MISC/1, p. 52 (para. 122). Ibid., p. 3 (para. 10).

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Chapter 4

POSSIBLE ROLE OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA IN INTERPRETATION AND PROGRESSIVE DEVELOPMENT OF THE LAW OF THE SEA*
The 1982 United Nations Convention on the Law of the Sea includes a single system of rules on the settlement of disputes between states parties concerning the interpretation or application of the Convention.1 The backbone of this system is Part XV of the LOS Convention (Settlement of Disputes) and Annexes V-VIII to the Convention (Conciliation, Statute of the International Tribunal for the Law of the Sea, Arbitration, Special Arbitration). However, there are provisions on the settlement of disputes also in other parts of the Convention and in the respective Annexes. Particularly important is Section 5 of Part XI, dealing with the settlement of disputes and advisory opinions with respect to activities in the Area (Arts. 186-191). The approach to the settlement of disputes of the Third United Nations Conference on the Law of the Sea was different from the one adopted by the 1958 UN Conference on the Law of the Sea. Namely, the states drafting the 1958 Geneva Conventions on the Law of the Sea did not impose a unique system of disputes settlement in respect of all the four Conventions they were adopting. A general system was contained in the Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes, to which all states parties to any of the four Geneva Conventions could become parties.2 Thus the Protocol could apply only to disputes including states bound both by the relevant Geneva Convention and the Optional Protocol. In addition to the Optional Protocol, specific settlement of disputes provisions were included only in the Convention on Fishing and Conservation of the Living Resources of the High Seas.3 States parties to a dispute concerning the interpretation or application of the LOS Convention are free to agree to settle the dispute by any peaceful means of their own choice.4 The means provided for in the Convention are applied only when no settlement

*
1 2 3 4

First published in Order for the Oceans at the Turn of the Century, The Fridtjof Nansen Institute, (Davor Vidas and Willy streng, eds.), Kluwer Law International, The Hague/London/Boston, 1999.
For the text of the Convention, see: The Law of the Sea, United Nations Convention on the Law of the Sea, UN Pub. Sales No. E.83.V.5, 1983. UNTS, Vol. 450, pp. 169ff. Arts. 9-12, text in UNTS, Vol. 559, pp. 285ff. Art. 280 of the LOS Convention.

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4 ITLOS AND THE PROGRESSIVE DEVELOPMENT OF THE LAW OF THE SEA

has been reached by recourse to the means chosen, and the agreement between the parties does not exclude any further procedure.5 The LOS Convention itself obliges states parties to a dispute to proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.6 They may also agree to submit the dispute to a conciliation procedure.7 A dispute where no settlement has been reached by recourse to the mentioned means, shall be submitted at the request of any party to the dispute to a court or tribunal.8 In addition to the International Court of Justice, the Convention envisages the establishment of a new institution the International Tribunal for the Law of the Sea, and it provides rules for the establishment of two types of arbitral tribunals.9 States parties are entitled to choose one or more of these means.

1.

INTERPRETATIVE ROLE OF THE TRIBUNAL

The role of the Tribunal as well as that of the ICJ and the arbitral tribunals is the settlement of disputes concerning the interpretation or application of the Convention. In addition to this competence, the ICJ and ITLOS have also the jurisdiction of giving advisory opinions. This competence of the ICJ, although not mentioned in the LOS Convention, has to be admitted even in the field of the law of the sea on the basis of the general competence of the Court.10 Advisory opinions in respect of the activities in the Area, given by the Seabed Disputes Chamber of ITLOS, are provided for in the LOS Convention itself.11 The formulation used to describe the competence of ITLOS the settlement of disputes concerning the interpretation and application of the Convention is equal to the wording used in respect of the settlement of disputes in the mentioned 1958 Optional Protocol, and to other treaties concluded on the basis of the drafts prepared by the International Law Commission.12 However, the role of the judicial bodies in the settle-

5 6 7 8

9 10 11 12

Ibid., Art. 281. Ibid., Art. 283(1). Ibid., Art. 284. Ibid., Art. 286. However, not all the disputes shall necessarily be submitted to one of the compulsory procedures entailing binding decisions. The Convention excludes some categories of disputes from the obligatory submission to the courts or tribunals (Art. 297), and it permits to every state party to declare that it does not accept these procedures in respect of three other categories of disputes (Art. 298). See also Mensah, chapter 6 in this book. Ibid., Art. 287 and Annexes VI-VIII. Art. 96 of the UN Charter and Arts. 65-68 of the Statute of the Court. Art. 159(10) and Art. 191 of the LOS Convention. Art. I of the Protocol; see also other treaties concluded on the basis of the ILC drafts in: The Work of the International Law Commission, fourth edition, UN Pub. Sales No. E.88.V.1, 1988, pp. 189, 212, 241, 259, 279, 291, 320, 340, 356 and 384.

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ment of disputes in UN practice is sometimes defined differently. Thus, for example, in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the competence of the ICJ covers disputes...relating to the interpretation, application or fulfilment of the present Convention.13 Whatever the precise definition of the role of a judicial body in settling a dispute, the crux of its role is to resolve the dispute between the parties on the basis of a correct interpretation of the applicable legal rules. Therefore, the distinction between the interpretation and application of a treaty, is in my view artificial. The parties to a dispute are not interested in the interpretation of the rules of a treaty if the interpretation does not concern the application of the treaty. They will submit the case to a judicial body only in order to protect their own rights and interests, hoping that the interpretation given by the court or tribunal will impose the application of the treaty according to their expectation. If the settlement of disputes leaves the impression, at least at first sight, of two different and separate duties of the court/tribunal settling disputes concerning the interpretation or resolving disputes relative to the application of the Convention the task of giving advisory opinions is unambiguous. The Tribunal gives its opinion on legal questions arising within the scope of the activities of the Assembly or the Council of the International Seabed Authority.14 Taking into account the powers and functions of these two bodies, it is obvious that ITLOS may be asked to give an advisory opinion on different decisions they have to take, including the elaboration of rules, regulations and procedures concerning the activities in the Area, the approval of plans of work, etc. Although such a generalisation may prove not to be adequate in some specific cases, I would venture to claim that interpretation of the Convention will be the main purpose of the request for advisory opinions, while in the settlement of disputes interpretation plays a subsidiary role. The main purpose of the settlement of every dispute is to evaluate the claims and acts of the parties on the basis of the Convention. The evaluation of the positions and deeds of the parties in the light of the Convention is the main problem; the interpretation of the Convention itself is to be undertaken to the extent the circumstances of the case require. It comes as no surprise that the role of the Tribunal in the interpretation of the LOS Convention is at the centre of everyones attention. However, the interpretative role of the Tribunal, both in disputes as well as advisory opinions, is not limited only to this instrument. It encompasses all other agreements conferring jurisdiction on the Tribunal,15 as well as the entire corpus of legal rules it applies. According to Article 293, paragraph 1 of the Convention, a court or tribunal having jurisdiction under this Section shall apply

13 14 15

Art. IX; UNTS, Vol. 78, pp. 277ff. Art. 191 of the LOS Convention. See ibid., Art. 21 of Annex VI.

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4 ITLOS AND THE PROGRESSIVE DEVELOPMENT OF THE LAW OF THE SEA

this Convention and other rules of international law not incompatible with this Convention. In respect of the interpretation of the LOS Convention, it is necessary to point out that the Tribunal is entitled to interpret not only the substantive rules on the law of the sea but also the procedural, organisational provisions contained in the Convention, including those regulating the jurisdiction, organisation and procedure of the Tribunal itself. Article 16 of its Statute expressly invites the Tribunal to frame rules for carrying out its functions and, in particular, to lay down rules of procedure. The Rules of the Tribunal, adopted on 28 October 1997,16 undoubtedly contain provisions which can be characterised as meaning an interpretation, a clarification of the concise and sometimes vague provisions of the Convention, including the Statute of the Tribunal. Article 138 of the Rules is one of the provisions that could be considered as such an interpretation of the Convention. Article 21 of the Statute confirms the jurisdiction of the Tribunal in respect of all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal. The Tribunal has interpreted this provision as not excluding the possibility that on the basis of such an agreement related to the purposes of the Convention, the Tribunal be required to give an advisory opinion. Thus, the Rules of the Tribunal do not limit its advisory opinions only to those concerning activities in the Area, which are the only ones expressly mentioned in the Convention. The interpretation of the Tribunal procedure is not given only in the already adopted Rules; it will constantly be undertaken in the course of the Tribunals work. In my opinion, an example in this sense is contained in the Order of 11 March 1998, made at the request of St. Vincent and the Grenadines for provisional measures in respect of its dispute with Guinea in the M/V Saiga case.17 The Tribunal had to interpret some of the provisions concerning provisional measures contained in Article 290 of the Convention, which mentions only the prescription of provisional measures. However in addition to one prescribed provisional measure, the Tribunal addressed some recommendations to the parties. Article 95 of the Rules requires the submission by the parties of reports on their compliance with the prescribed provisional measures. The Tribunal requested the submission of an initial report not specifying whether the parties should report only on their compliance with the prescribed provisional measure, or also on the follow-up to the recommendations. On 29 April 1998 the Agent for St. Vincent and the Grenadines

16 17

ITLOS, Rules of the Tribunal, ITLOS/8. ITLOS, Year 1998, 11 March 1998, The M/V Saiga (No. 2) (St. Vincent and the Grenadines v. Guinea), Request for provisional measures, Order.

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reported on the unsuccessful endeavours of the government of that state to find an arrangement with Guinea pending the final decision, as recommended by the Tribunal.18

2.

INTERPRETATION OF THE LOS CONVENTION

There is almost no treaty or international rule the application of which does not require a certain level of interpretation. There are many reasons why the provisions of the LOS Convention necessitate more interpretation than an average treaty. This brief chapter can only list the main reasons without further elaboration. the unusual methods of work at UNCLOS III (mostly informal negotiations, very often restricted only to some delegations; drafts presented by the Chairmen of the Main Committees and the President of the Conference, which were almost untouchable in the subsequent negotiations; the package deal, which linked the solutions adopted for the territorial sea, straits and the exclusive economic zone, and other compromises which also resulted in vague solutions and provisions); the complexity of the final text of the LOS Convention; the changes in the political and economic realities since the conclusion of UNCLOS III; the adoption of the 1994 Agreement relating to the Implementation of Part XI of the Convention19; the adoption of the 1995 Agreement for the Implementation of the Provisions of the LOS Convention relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks20; the conclusion of many other instruments in the field of the law of the sea on a global, regional and sub-regional basis; and the adoption of new national legislation.

In such a situation everyone has doubts concerning the exact meaning or scope of some of the provisions of the LOS Convention. Clarifications very often cannot be obtained either by the participants at UNCLOS III or by various commentators. In this brief chapter it is not possible to review, or even list, the numerous problems in the interpretation of various solutions and rules contained in the Convention. Two,

18 19

20

Letter of the Commissioner for Maritime Affairs of St. Vincent and the Grenadines to the Registrar of the ITLOS, of 29 April 1998. Text in: The Law of the Sea, Official Text of the United Nations Convention on the Law of the Sea of 10 December 1982 and the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 with Index and excerpts from the Final Act of the Third United Nations Conference on the Law of the Sea, UN Pub. Sales No. E.97.V.10, 1997, pp. 215ff. UN doc. A/CONF.164/37.

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4 ITLOS AND THE PROGRESSIVE DEVELOPMENT OF THE LAW OF THE SEA

which may be relevant to coastal states in every sea, but particularly in those narrow, enclosed or semi-enclosed seas, will be mentioned here. The first problem concerns the situation created by the omission from the LOS Convention of any rule on the delimitation of the contiguous zone between states with opposite or adjacent coasts.21 The rule contained in Article 24, paragraph 3 of the 1958 Convention on the Territorial Sea and the Contiguous Zone was not incorporated into the LOS Convention and it has not been replaced by any other rule in the new Convention. The problem of the delimitation of the contiguous zone was raised on several occasions at UNCLOS III, and there was no public decision of the competent bodies of the Conference not to draft and adopt a rule on the delimitation of the contiguous zone.22 Such a rule would have been more necessary in 1982 than in 1958, due to the fact that the contiguous zone is no longer defined as a zone of the high seas and the addition of a new field of control of the coastal state in its contiguous zone. Under the LOS Convention only the coastal state is entitled to control traffic of archaeological and historical objects found on the seabed of its contiguous zone. Taking into account this exclusive competence of the coastal state, the delimitation of the contiguous zone of the states with opposite or adjacent coasts becomes more important than before, when some argued that the contiguous zones of two or more coastal states should not necessarily be delimited. According to such views, coastal states could exercise their competencies with respect to customs, fiscal, immigration or sanitary regulations in the same marine area, which each of them considered their own contiguous zone.23 It would be interesting to hear from an international court or tribunal what is the result of the application of Article 311, paragraph 1 of the LOS Convention in this case. Should the rule that the LOS Convention prevails, as between the states parties, over the Geneva Conventions, be interpreted as the non-applicability in their relations of the delimitation rule from the 1958 Geneva Convention? Or, should this rule continue to be applied, as the LOS Convention only prevails over the Geneva Convention, but does not contain a different provision on the delimitation of the contiguous zone meaning there is no reason for the non-applicability of the 1958 rule? The second problem I will mention has recently been ably analysed by Alex Oude Elferink.24 It concerns the consequences of the poorly drafted paragraph 3 of Article 121, which denies rocks which cannot sustain human habitation or economic life of their own the right to have an exclusive economic zone or a continental shelf. This rule

21 22 23 24

Art. 33 of the LOS Convention contains all the rules on the contiguous zone, except the rule on the archaeological and historical objects on the seabed of the zone, which is contained in Art. 303(2). See B. Vukas, The LOS Convention and Sea Boundary Delimitation, in B. Vukas (ed.), Essays on the New Law of the Sea (Zagreb: University of Zagreb, Faculty of Law, 1985), pp. 156-164. Ibid., pp. 155-156, 157 and 159. A.G. Oude Elferink, Clarifying Art. 121(3) of the Law of the Sea Convention: The Limits Set by the Nature of International Legal Processes, Boundary and Security Bulletin, Vol. 6, 1998, pp. 58-68.

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was formulated at UNCLOS III, on the basis of a Romanian working paper submitted to the Committee on the Peaceful Uses of the Seabed and Ocean Floor beyond the Limits of National Jurisdiction in 1973, when Romania proposed that islets and small islands, uninhabited and without economic life, which are situated on the continental shelf of the coast, do not possess any of the shelf or other marine spaces of the same nature.25 A slightly different proposal was repeated by the same state at the Second Session of UNCLOS III,26 and a similar draft article was proposed by Turkey.27 Although the idea of the division of islands in respect of their right to maritime zones, and the introduction of the vague criteria concerning human habitation or economic life, were heavily criticised in the Second Committee of the Conference,28 the original Romanian ideas were maintained in the final text of the Convention. All the discussions at UNCLOS III in public meetings, the reconstruction of the preparatory work of Article 121 done by the UN Division for Ocean Affairs and the Law of the Sea,29 and the similar efforts of outstanding commentators,30 do not reveal either the majority of states supporting that provision, or the real meaning of the inappropriate expressions used in Article 121, paragraph 3. (In its final version, the article states: Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.) Be that as it may, the terms used in that rule raise a number of questions: Can a lighthouse be considered as sustaining human habitation? Does economic life necessarily include production of food? Does this expression mean economic activities which would make the people inhabiting the rock self-sufficient? What is the relationship between the size of the rock and the two conditions in paragraph 3 of Article 121? The last question I borrow from Oude Elferink: Is the reference to or between human habitation and economic life to be interpreted as being conjunctive or disjunctive?31 Finally, we should turn to some examples of interpretation offered by the first case before the Law of the Sea Tribunal the M/V Saiga case. In its Judgement of 4 December 199732 the Tribunal had to interpret Article 292 of the LOS Convention dealing with the prompt release of vessels and crews, taking particularly into account the applicab-

25 26 27 28

29 30 31 32

UN doc. A/AC.138/SC.II/L.53. UN doc. A/CONF.62/C.2/L.53. UN doc. A/CONF.62/C.2/L.55. Official Records of the Third United Nations Conference on the Law of the Sea, Vol. II, UN Pub. Sales No. E.75.V.4, Summary records of meetings, Second Committee, 39th meeting, paras. 29-81; 40th meeting, paras. 1-58. The Law of the Sea, Regime of Islands, Legislative History of Part VIII (Art. 121) of the United Nations Convention on the Law of the Sea, UN Pub. Sales No. E.87.V.11, 1988. S.N. Nandan, Sh. Rosenne and N.R. Grandy (eds.), United Nations Convention on the Law of the Sea, 1982: A Commentary, Vol. III (Dordrecht: Martinus Nijhoff, 1996), pp. 326-339. Oude Elferink, Clarifying Art. 121(3), p. 59. ITLOS, Year 1997, 4 December 1997, The M/V Saiga (St. Vincent and the Grenadines v. Guinea), Judgment.

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4 ITLOS AND THE PROGRESSIVE DEVELOPMENT OF THE LAW OF THE SEA

ility of Article 73 concerning the enforcement of laws and regulations of the coastal state. In doing so, the Tribunal accepted the interpretation according to which bunkering of fishing vessels is considered as an activity ancillary to fishing. Therefore, the vessel detained for having violated the laws prohibiting bunkering of fishing vessels should be promptly released upon the posting of reasonable bond or other security. Moreover, the Tribunal decided that the ship and its crew had to be released, although a bond or other security had been neither posted nor offered or required. On 20 February 1998 the parties agreed to submit the merits of the case to the Tribunal. According to the views of the parties, the Tribunal shall have to express its opinion on a wide range of issues relating to the regime of the exclusive economic zone. As it appears, the most important will be the interpretation of this regime in respect of bunkering of foreign fishing vessels in the exclusive economic zone of a third state. The question is whether such an activity can be classified as an independent economic activity, or is part of the freedom of navigation available to foreign vessels in all economic zones.

3.

THE TRIBUNAL AND THE PROGRESSIVE DEVELOPMENT OF THE LAW OF THE SEA

The Law of the Sea Tribunal cannot play a role in the progressive development of the law of the sea in the sense this term has been referred to in Article 13, paragraph 1(a) of the UN Charter, and subsequently interpreted by the Statute of the International Law Commission and the Commission itself.33 However, this does not mean that the Tribunal cannot contribute to the development of international law; it only means that its contribution must be done in a way appropriate to a judicial organ. Commenting on the contribution of the ICJ, its President, Stephen Schwebel says that
its contributions to the development of international law are inherently different from the process of codification and progressive development of international law by such bodies as the International Law Commission or by international conventions.34

On the basis of paragraph 1 of Article 293 ITLOS applies the LOS Convention and other rules of international law not incompatible with this Convention, as do the ICJ

33

34

Art. 16 of the Statute of the ILC. The drafters of the Statute conceived progressive development as a conscious effort towards the creation of new rules of international law, whether by means of the regulation of a new topic or by means of the comprehensive revision of existing rules. The Work of the International Law Commission, p. 13. S.M. Schwebel, The Contribution of the International Court of Justice to the Development of International Law, paper presented at The Hagues 750th Anniversary International Law Conference, The Hague, Legal Capital of the World, 4 July 1998, p. 3.

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and the arbitral tribunals listed in the Convention. The Tribunal cannot change any of these rules, but its judgements, orders and advisory opinions could be a source of inspiration for the adoption of new conventional rules, and a contribution to the crystallisation of new customary norms in the field of the law of the sea and in other domains of international law. Moreover, the general and vague language of some of the provisions of the LOS Convention brings the role of the Tribunal in the settlement of certain particular disputes close to the development of the law of the sea. Thus, for example, in disputes concerning the delimitation of the exclusive economic zone and the continental shelf between states with opposite or adjacent coasts due to the quite useless paragraph 1 of Articles 74 and 83, respectively there is almost nothing to interpret or apply. In light of the vague instructions contained in this provision, there is ample space for the creative role of the competent courts and tribunals.

4.

CONCLUSION: FUTURE TASKS

I would like to close this short discussion by listing some more general questions which should be clarified through the activity of the Law of the Sea Tribunal. These could all be characterised as matters of interpretation or clarification of the law of the sea; for the most part, they have arisen as the Law of the Sea Convention begins to be applied to actual situations: the application of the rule that the LOS Convention shall prevail, as between states parties, over the 1958 Geneva Conventions;35 the determination of the relation of the LOS Convention with other law of the sea conventional rules in the light of the confusing provisions on the subject in the Convention;36 the characterisation of some of the institutions, principles and rules of the law of the sea as customary international law; the possibility of classifying some of the law of the sea principles and rules as jus cogens, i.e., as peremptory norms of international law; and the determination, to the extent possible and desirable, of the delimitation between the law of the sea and other parts of international law, such as environmental law, air and space law, or demilitarisation, to name a few.

35 36

Art. 311(1) of the LOS Convention. See ibid., Art. 311(25) and Art. 237.

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Chapter 5

THE LAW OF THE SEA CONVENTION AND THE LAW OF TREATIES*

1.

INTRODUCTION

1. As the United Nations Convention on the Law of the Sea (LOS Convention) is considered one of the most important, most complex and most extensive treaties ever concluded, it is not surprising that also from the point of view of the law of treaties it contains many interesting solutions.1 Although some of them may be unusual, vague and/or confusing, they all have been adopted in the interest of achieving a successful result at the Third United Nations Conference on the Law of the Sea (UNCLOS III). Yet, these results were not satisfactory for all States. The most important proved to be the dissatisfaction of industrialized countries with the provisions on the exploration and exploitation of the international sea-bed area (Area) and, except Iceland, they desisted from ratifying the Convention. Thus, there was a danger that the Convention enters into force only on the basis of the ratifications of developing States. This would have prevented the correct application of the entire legal order of the oceans as conceived at UNCLOS III. Such an outcome after twenty years of United Nations activities in revising the law of the sea was disliked by both the developing as well as developed countries. Therefore, in 1990 they engaged in negotiations, which after four years resulted in the Agreement relating to the implementation of Part XI of the LOS Convention.2 The adoption of the 1994 Agreement made possible the participation in the Convention of industrialized States. The Convention entered into force on 16 November 1994, and as of 1 April 1998 it has 125 States parties. The Agreement entered into force on 28 July 1996, and it has 86 parties.3

First published in Liber amicorum Gnther Jaenicke Zum 85. Geburtstag, (Volkmar Gtz, Peter Selmer, Rdiger Wolfrum, eds.), Springer, Berlin/Heidelberg/New York/Barcelona/Hongkong/London/ Mailand/Paris/Singapur/ Tokio, 1998.
UNCLOS III, Official Records, Vol. XVII, 151 et seq., (Doc. A/CONF.-62/122). Law of the Sea Bulletin, Special Issue IV, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, 16 November 1994. Status of the LOS Convention of 10 December 1982 and the Agreement relating to the implementation of Part XI of the Convention, adopted by the General Assembly on 28 July 1994; information received from Internet: http://www.un.org/Depts/los.

1 2 3

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5 LOS CONVENTION AND THE LAW OF TREATIES

2. In this brief study dedicated to Professor Gnther Jaenicke, one of the most distinguished founding fathers of the LOS Convention, we can not deal with all the interesting provisions of the LOS Convention relevant to the law of treaties, and mostly contained in art XVII Final Provisions. All the topics usually treated at the end of an international treaty are contained in Part XVII. It contains interesting solutions the participants at UNCLOS III deemed appropriate for the Charter of the Ocean they drafted. An appropriate scrutiny of all the provisions on signature, ratification, accession, entry into force, reservations and exceptions, declarations and statements, amendments, denunciation, etc., would require a whole monograph. That is why we will limit our research to some of the outstanding features of the international instruments which are the result and consequence of UNCLOS III: The LOS Convention itself, the Final Act of UNCLOS III and the 1994 Agreement relating to the implementation of Part XI of the LOS Convention. Although these instruments do not possess the same legal nature, and are not adopted at the same time, they represent an integral whole.

2.

SOURCES OF THE LAW TREATIES

3. Before dealing with any particular law-of-treaties question, it is indispensable to clarify which are the sources of the law of treaties applicable to the LOS Convention and the related instruments. In addition to customary international law and general principles of law, the only other possible sources are the two codification conventions: the 1969 Vienna Convention on the Law of Treaties4 and the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.5 Customary international law has been developed primarily on the basis of and for inter-State treaties. However, as it has been proved in the course of the conclusion of the Vienna Conventions on the Law of Treaties, the majority of its rules are applicable also to treaties concluded between other subjects of international law. The 1969 Vienna Convention applies to international agreements concluded between States in written form and governed by international law (article 2 para. 1 lit. a), while the 1986 Convention applies to international agreements governed by international law and concluded in written form (i) between one or more States and one or more international organizations, or (ii) between international organizations (article 2 para. 1 lit. a). Both Conventions affirm that the rules of customary international law will continue to govern questions not regulated by their provisions.6

4 5 6

UNTS Vol. 1155 No. 18232. ILM 25 (1986), 543. Eighth preambular paragraph of the 1969 Convention; fifteenth preambular paragraph of the 1986 Convention.

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4. However, it has to be pointed out at the outset that the status of the two Vienna Conventions is not the same. The 1969 Convention entered into force on 27 January 1980, and there are 84 States parties (21 May 1998) to the Convention.7 On the other hand, the 1986 Convention has not yet entered into force.8 Therefore, on the basis of its article 4 Non-retroactivity of the present Convention, its application to all the mentioned relevant instruments on the law of the sea is excluded:
Without prejudice to the application of any rules set forth in the present Convention to which treaties between one or more States and one or more international organisations or between international organisations would be subject under international law independently of the Convention, the Convention applies only to such treaties concluded after the entry into force of the present Convention with regard to those States and those organisations (emphasis added).

Thus, the rules of the 1986 Convention are applicable to the already concluded treaties only in so far as they reflect customary international law. While the direct application of the 1986 Convention is eliminated due to the fact that it is not yet in force, the applicability of the 1969 Convention has to be tested on the basis of the time of its entry into force and the subjects of international law which are parties for the mentioned law of the sea instruments.

3.

PARTICIPATION IN UNCLOS III

5. Before the commencement of the Conference, the United Nations General Assembly invited only States to participate in UNCLOS III.9 Interested inter-governmental and non-governmental organizations as well as the United Nations Council for Namibia were invited to participate in the Conference as observers.10 In the course of the Conference some associated States and territories which only enjoyed full internal self-government recognized by the United Nations as well as national liberation movements were also invited to attend the sessions of the Conference.11

7 8 9 10 11

http://www.un.org./Depts/Treaty. Ibid. See para. 1 of A/RES/3067 (XXVIII) of 16 November 1973. See paras 8 and 9 of A/RES/3029 (XXVII) of 18 December 1972 and para. 8 of A/RES/3067 (XXVIII), see note 9. UNCLOS III, Official Records, Vol. I, 165 et seq.; A/RES/3334 (XXIX) of 17 December 1974. See also paras 10 and 11 of the Final Act of UNCLOS III, Doc. A/CONF.62/121 of 27 October 1982.

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However, on March 6, 1980, the Conference decided to grant Namibia, represented by the UN Council for Namibia, the status of a participant in UNCLOS III.12 On April 30, 1982, in the voting for the adoption of the Convention, not only States, but also Namibia took part. Furthermore, some of the entities participating in the Conference as observers have also been allowed to sign, ratify (formally confirm, in the case of international organisations) or accede to the Convention. According to article 305, the right to become party to the Convention has been granted to: Namibia (represented by the UN Council for Namibia); associated States and territories which enjoy full internal self-government and which have competence over the matters governed by the Convention, including the competence to enter into treaties in respect of those matters; international (inter-governmental) organizations to which its member States have transferred competence over matters governed by the Convention, including the competence to enter into treaties in respect of those matters.13 Some of the entities belonging to these categories signed (UN Council for Namibia, Cook Islands, Niue, European Community) and the Cook Islands, Namibia and Tonga have even ratified the LOS Convention. The 1994 Agreement is open to all those categories of entities listed in the LOS Convention (article 3). Namibia is no more specially mentioned as in the meantime it became an independent State. For the time being, Cook Islands and Tonga are parties to the Agreement. 6. Taking into account all these facts, it is obvious that the LOS Convention as well as the 1994 Agreement are international agreements concluded between States and other subjects of international law to which, according to its article 3, the 1969 Vienna Convention on the Law of the Treaties, does not apply. However, the same article provides:
The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law ... shall not affect: ... (c) the application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties.

Notwithstanding this possibility, the application of the 1969 Vienna Convention to the relations of States as between themselves in respect of the LOS Convention raises some doubts which are caused by article 4 of the Vienna Convention providing that ... the

12

13

The decision was taken upon A/RES/34/92 of 13 December 1975. UNCLOS III, Official Records, Vol. XIII, 4. See also para. 12 of the Final Act of UNCLOS III in: United Nations, The Law of the Sea, Official Text of the United Nations Convention on the Law of the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea, 161. Arts 305 para. 1, 306 and 307 of the LOS Convention and article 1 of Annex IX to the Convention (Participation by International Organizations).

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Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States. The first problem of the interpretation of article 4 has been commented upon by several authors: is the Vienna Convention applicable only to treaties concluded exclusively by States with regard to which the Vienna Convention has entered into force? Has the phrase such States at the end of article 4 to be interpreted as meaning all such States? For OConnel and Thirlway the Vienna Convention will govern those treaties which are concluded by States all of whom are bound by the Convention.14 Contrary to this interpretation of article 4 as a general participation clause (clausula si omnes), Vierdag is of the opinion that the Convention does not itself preclude its application to the treaties, only some of whose parties are parties to the Convention.15 This view was expressed also by Blix, the representative of Sweden, a State co-sponsor of the proposal which subsequently became article 4 of the Convention.16 As it has already been said, article 3 lit. c permits the application of the Convention only to relations of some of the parties (States) to a treaty as between themselves, in the case of different subjects of international law being parties to the same treaty. It would, therefore, be inconsistent to adopt a general participation clause in the case when only States conclude a treaty, and not all of them are parties to the 1969 Vienna Convention. Such a clause would render the application of the Vienna Convention to multilateral treaties almost impossible. The participation in a treaty of only one State non-party to the Vienna Convention or the denunciation of the Convention by a former party would make the Vienna Convention inapplicable to a multilateral treaty. Vierdag is correct in claiming that such an interpretation of article 4 could be qualified as unreasonable under article 32 of the Convention, as they would be almost prejudicial to the object and purpose of the Convention.17 7. Independently of the doctrine which is concerned with the possible general participation clause interpretation, some delegates at the Conference on the Law of Treaties pointed to another vagueness in article 4: the restriction of the application of the Convention to treaties which are concluded after the entry into force of the Vienna Convention. Their worries were caused by the fact that conclusion under Part II, section I of the Convention comprises several stages in establishing a treaty: from the drawing

14 15

16 17

D.P. OConnel, International Law, Vol. 1, 1970, 205; H. Thirlway, International Customary Law and Codification, 1972, 108. E.W. Vierdag, The Law Governing Treaty Relations between Parties to the Vienna Convention on the Law of Treaties and States Not Party to the Convention, AJIL 76 (1982), 786. In the same sense: J. Sinclair, The Vienna Convention on the Law of the Treaties, 1983, 9; J. King Gamble Jr./M. Frankowska, The Significance of Signature to the 1982 Montego Bay Convention on the Law of the Sea, ODILA 14 (1984), 126. United Nations Conference on Law of the Treaties (UNCLT), Official Records, Second Session, (A/CONF.39/ 11/Add. 1), 166 et seq. Vierdag, see note 15, 785.

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up and adoption of the text of a treaty to the consent to be bound by it. A State has concluded a treaty when it has passed all these stages and has consented to be bound by the treaty, i.e. when it becomes a contracting State or party in the sense of article 2 para. 1 lit. f and 2 para. 1 lit. g of the Convention.18 Pinto, the delegate of Ceylon pleaded It would be better to speak of the establishment of the text of a treaty as the point of reference for application of the Convention.19 Since the notion of the conclusion of a treaty had not been defined in the Convention, for the Swiss delegate Bindschedler it remained ambiguous; he therefore suggested to replace this notion in article 4 by that of signature or ratification.20 There were no reactions from other delegations to these comments and warnings, and the term concluded, without any further precision, remained in the final text. The application of article 4 will not cause problems in cases where all the stages of the conclusion of a treaty were undertaken after the entry into force of the Vienna Convention. On the contrary, its application to acts already performed by a State before the entry of the Convention into force with regard to that State, would be a violation of the general rule on non-retroactivity of treaties, contained in article 28 of the Vienna Convention.
Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.

The logical consequence of this principle should be the application of the 1969 Vienna Convention only in respect to those acts relating to the conclusion of a treaty performed by a State after the entry into force of the Convention with regard to this State. This conclusion is relevant in the case of the LOS Convention, is the Vienna Convention entered into force only on 27 January 1980 (only in respect of 35 States), i.e. in the course of the negotiations at UNCLOS III. At the time of adoption of the LOS Convention (30 April 1982), the Vienna Convention was in force only in respect of 42 participants in UNCLOS III; on the date the LOS Convention was opened for signature (10 December 1982), 43 States were bound by the Vienna Convention, and on the last day the LOS Convention was opened for signature (9 December 1984), the number of parties to the Vienna Convention increased to 44. At the moment of its entry into force (16 November 1994), 50 States parties to the LOS Convention were parties to the 1969 Vienna Convention, and at the end of 1997 (23 December), 62 States were party to both Conventions.21 Any of these stages of the conclusion of the LOS Convention cannot be governed by

18 19 20 21

See P. Reuter, Introduction au droit des traits, 1972, 64-65. UNCLT, Official Records, Second Session, 319, para. 27. See also Pintos intervention at 338, para. 6, ibid. Ibid. at 330, para. 10. See notes 3, 7 and 8.

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the provisions of the Vienna Convention (relative to full powers, adoption and authentication, signature) in respect of any State which became party to the Vienna Convention after the completion of a particular stage of conclusion. 8. On the basis of the above analysis, our conclusion is that as far as the LOS Convention is concerned, the 1969 Vienna Convention is applicable to the relations of States parties to the Vienna Convention as between themselves. However, the Vienna Convention governs only the acts of a State performed in the conclusion of the LOS Convention after the entry into force of the Vienna Convention for this particular State. The facts that the 1969 Vienna Convention entered into force only in 1980 and that it still is not in force for the majority of the parties to the LOS Convention, considerably reduce its applicability even to the relations between States themselves. 9. The fact that only the 1969 Vienna Convention partially applies to the LOS Convention, does not mean that the results of the codification and progressive development of the law of treaties do not have a great significance for the relations between all the different subjects of international law parties to the LOS Convention. The drafting of the 1986 Vienna Convention demonstrated that the international community does not hesitate to apply to treaties concluded by other subjects of international law rules originally developed in respect of treaties concluded between States, except in the case where the specific nature of these subjects requires the elaboration of special rules. Thus, the 1986 Vienna Convention is a replica of the 1969 Convention, with the changes and addenda required for the specific characteristics of international organizations. Moreover, many of the rules contained in the Vienna Conventions represent customary international law applicable to international agreements concluded between all the subjects of international law. This has been confirmed in article 3 lit. b of both Vienna Conventions, which confirm the applicability of some of the rules set forth in the Conventions on the basis of international law independently of these Conventions. Having in mind the general applicability of the solutions contained in the 1969 Vienna Convention, even in the perspective of admitting the participation of other entities besides States, UNCLOS III abundantly used the solutions contained in this Convention while drafting the preamble and the final clauses of the LOS Convention. Thus, the following was said in the basic document on the subject, prepared by the Secretariat of the Conference:
References are made in the foot-notes to various provisions of the Vienna Convention on the Law of the Treaties, done at Vienna on 23 May 1969. That Convention is not yet in force ... but on many points it represents the views of States as to the existing law.22

22

Doc. A/CONF.62/L.73 in: UNCLOS III, Official Records, Vol. VI, 125, para. 4. See also: B.H. Oxman, The Third United Nations Conference on the Law of the Sea: The Eighth Session (1979), AJIL 74 (1980), 33.

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The entry into force of the 1969 Vienna Convention only reinforces the opinion that the solution it embodies represents general customary international law.

4.

THE CONTEXT OF THE LOS CONVENTION

10. As already mentioned, the results of UNCLOS III are incorporated in two instruments: the LOS Convention and the Final Act of UNCLOS III. The first was adopted on 30 April 1982 and the second on 24 September 1982. Both instruments were opened for signature on 10 December 1982. The Final Act was signed by 144 entities entitled to become party to the Convention under its article 305, and five entities with observer status at the Conference. In the two years the Convention was opened for signature, it was signed by 159 States and other entities entitled to become party.23 The text of the Convention comprises the preamble, the operative part and nine Annexes.24 Article 318 of the Convention makes clear that these Annexes form its integral part. Seven Annexes and an Appendix (listing the observers that participated at sessions of the Conference) are added to the Final Act.25 Annex I itself comprises four resolutions.26 These four resolutions, according to para. 42 of the Final Act, are forming an integral whole with the Convention; they were adopted already with the Convention itself, i.e. on 30 April 1982. The reason for this linkage was the fact that all these resolutions contain provisions in different ways complementing the system established by the Convention.

23 24

25

26

United Nations, Law of the Sea Bulletin, 6 (1985), 5. Annex I: Highly Migratory Species; Annex II: Commission on the Limits of the Continental Shelf; Annex III: Basic Conditions of Prospecting, Exploration and Exploitation; Annex IV: Statute of the Enterprise; Annex V: Conciliation; Annex VI: Statute of the International Tribunal for the Law of the Sea; Annex VII: Arbitration; Annex VIII: Special Arbitration; Annex IX: Participation by International Organizations. For the contents of Annex I to the Final Act see note 26; Annex II: Statement of Understanding concerning a specific method to be used in establishing the outer edge of the continental margin; Annex III: Tribute to Simn Bolvar the Liberator; Annex IV: Resolution expressing gratitude to the President; the Government and the officials of Venezuela; Annex V: Tribute to the Amphictyonic. Congress of Panama, Annex VI: Resolution on development of national marine science, technology and ocean service infrastructures; Annex VII: Resolution expressing gratitude to the Prime Minister, Foreign Minister and Deputy Prime Minister, the Government and officials of Jamaica. Some U.N. publications do not reflect correctly the decision concerning the adoption of this resolution, taken at the 192nd meeting of the Plenary on 9 December 1982. UNCLOS III, Official Records, Vol. XVII, 132, para. 230; ibid., 139 et seq. (Doc. A/CONF.62/121); The Law of the Sea, see note 12, 173-174. Resolution I: Establishment of the Preparatory Commission for the International Seabed Authority and for the International Tribunal for the Law of the Sea; Resolution II: Governing preparatory investment in pioneer activities relating to polymetallic nodules; Resolution III: (on the rights of non-self-governing territories); Resolution IV: (entitling national liberation movements which participated in UNCLOS III to sign the Final Act).

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11. Resolution I annexed to the Final Act represented the definite decision of the Conference to establish the Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea. After its adoption, the only remaining condition for the commencement of the work of the Preparatory Commission was the signature or accession to the Convention by 50 States. Signatories to the Convention were members of the Commission, while signatories of the Final Act could only participate in the deliberations of the Commission as observers; they were not entitled to participate in the taking of decisions.27 In accordance with the above provisions, the Preparatory Commission started its activities in 1983, and it remained in existence until the conclusion of the first session of the Assembly.28 Thus, its existence was ended in 1995, when the first session of the Assembly of the International Sea-Bed Authority was concluded. The Preparatory Commission is referred to in the Convention itself and it is incorporated in the system of exploration and exploitation of the Area. The rules, regulations and procedures drafted by the Preparatory Commission shall apply provisionally pending their formal adoption by the Authority ... (article 308 para. 4).29 On the other hand, the Authority and its organs shall act in accordance with resolution II relating to the preparatory investment and with decisions of the Preparatory Commission taken pursuant to that resolution (article 308 para. 5). This last quotation shows that the provisions of the Convention and resolution II really form an integral whole regarding the exploration and exploitation of the Area. This resolution not only complements the system established by the Convention, but in some respects it is considered even to have amended the Conventions provisions.30 The application of resolution II begun after the establishment of the Preparatory Commission and the results achieved in the twelve years of its work can be considered as a normative addition to the Convention. For all its characteristics, it is not surprising what Tullio Treves concludes about resolution II:
bien quil ait t adopt en tant que rsolution, it ne semble pas y avoir de doute que la nature juridique de ce document est celle dun vritable accord international conclu en forme simplifie. Cela ressort du contenu de la rsolution no. 2 qui prvoit des droits et des obligations pour les Etats qui sont lis par elle.31

27 28 29 30 31

Final Act, Resolution I, paras 1 and 2. Ibid., para. 13. See also article 11 para. 3 lit. c of Annex IV to the Convention Statute of the Enterprise. See T. Treves, La protection des investissements prparatoires et la rsolution no. 2 de la Confrence sur le Droit de la mer, AFDI 28 (1982), 855. Ibid., 854.

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He finds an additional argument in favour of the obligatory nature of resolution II in its link with resolution I; this last instrument, as all others creating preparatory organs of international organizations, certainly is an international obligatory instrument.32 In respect of both resolutions I and II, Daniel Vignes is also of the opinion that they contain obligatory norms and that they possess the character of an international conventional act.33 12. Resolution III represents a decision of UNCLOS [III] that provisions concerning rights and interests under the Convention shall be implemented for the benefit of the peoples of territories which have not attained full independence or other self-governing status recognized by the United Nations and territories under colonial domination. The interests and needs of peoples who have not attained full independence or other selfgoverning status are expressly mentioned in article 140 para. 1 of the Convention, defining the principle that the activities in the Area shall be carried out for the benefit of mankind as a whole. In accordance with resolution III, the interests and needs of the peoples of these territories should be also taken into account in the application of some other provisions of the Convention, e.g. in the distribution of the payments and contributions with respect to the exploitation of the continental shelf beyond 200 nautical miles (article 82 para. 4). Be that as it may, it is obvious that resolution III also represents a permanent component of the international legal order established by the LOS Convention. 13. Resolution IV literally contains only the permission for national liberation movements, which participated in the Conference as observers, to sign the Final Act. The consequence of the signature is determined by the Convention itself: observers who have signed the Final Act and who are not entitled to become parties to the Convention shall have the right to participate in the Authority as observers, in accordance with its rules, regulations and procedures (article 156 para. 3). Moreover, they had the right to be observers in the Preparatory Commission (Final Act, Annex I, resolution I para. 2). 14. All these substantive and permanent links of the Convention and the four resolutions contained in Annex I to the Final Act, adopted together with the Convention, bring us to the conclusion that the provisions contained in these resolutions have not a value of mere recommendations or of any form of soft law: they were conceived as obligatory rules for all the participants in UNCLOS III and the parties to the LOS Convention. Moreover, contrary to the Convention, whose application depended upon its entry into force, the application of the major part of these resolutions did not depend on any event subsequent to their adoption on 30 April 1982 and the signature of the two instruments on 10 December 1982. Thus, all these resolutions are binding decisions for the participants

32 33

Ibid., 855. D. Vignes Notes sur la terminaison des travaux de la IIIme Confrence sur le droit de la mer et sur la porte des textes adopts Montego Bay le 10 dcembre 1982, AFDI 28 (1982), 803.

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in an international conference. In this no mans land between the law of the treaties and the law relating to international conferences (Johnson),34 we venture to suggest that these four resolutions are to be considered international agreements. Although concluded in a specific, simplified form, they contain all the main elements required for international agreements: (a) they are concluded between subjects of international law; (b) they manifest that the intent of these subjects was to create legal rights and obligations; (c) they are governed by international law.35 There is abundant authority in favour of the claim that the form given to the conclusions of international conferences is of no significance for determining whether a particular instrument constitutes in substance an international agreement or not.36 A passage in the advisory opinion given by the Permanent Court of International Justice in the Austro-German Customs Rgime case has been interpreted as supporting this view:
From the standpoint of the obligatory character of international engagements, it is well known that such engagements may be taken in the form of treaties, conventions, declarations, agreements, protocols or exchanges of notes.37

As far as the specific form of resolution is concerned, international practice also offers examples of its use in the conclusion of international agreements.38 15. The four resolutions contained in Annex I are not the only parts of the Final Act having a substantial link with the LOS Convention. Annex II contains the Statement of Understanding concerning a specific method to be used in establishing the outer edge of the continental margin, which is a substantive addendum to article 76 of the Convention and as such it must be taken into account by the Commission on the Limits of the Continental Shelf in its recommendations concerning the establishment of the outer edge of the continental margins in the southern part of the Bay of Bengal.39 Therefore, although not adopted together with the Convention (as the four resolutions in Annex I to the Final Act), but five months later with the entire text of the Final Act it is obvious that the Statement of Understanding also forms an integral whole with the LOS Convention. From the above conclusions concerning the four resolutions, it follows that the Statement of Understanding should also be considered an international agreement. John

34 35

36

37 38 39

D.H.N. Johnson, The Conclusions of International Conferences, BYIL 35 (1964), 1. Cf: article 2 para. 1 lit. a of both Vienna Conventions. See also: Johnson, see note 34, 3-4 and 30-31; A.D. McNair, The Law of Treaties, 1961, 3-4; Ch. Rousseau, Droit International Public, Vol. I, 1970, 63; Reuter, see note 18, 39-45. Johnson, see note 34, 5. See also commentary of the International Law Commision (ILC) on its definition of the terms treaty and treaty in simplified form, in: ILCYB 1962, Vol. II, 161-163; 1966, Vol. II, 188189. PCIJ, Series A/B, No. 41, 47. See D.P. Myers, The Names and Scope of Treaties, AJIL 51 (1957), 574. See G.H. Hackworth, Digest of International Law, Vol. V, 1943, 33-35. See article 3 para. 1 lit. (a) of Annex II to the LOS Convention.

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King Gamble Jr. and Maria Frankowska, who are of the opinion that the Final Act in general has some characteristics of a treaty and that it created legal rights and obligations, in respect of the Statement of Understanding separately stress that it has many of the characteristics of a treaty.40 16. Even not all the remaining parts of the Final Act are a mere report on the history of UNCLOS III. Annex VI comprises the Resolution on development of national marine science, technology and ocean service infrastructures. The Resolution embodies several recommendations of the Conference to all the Member States of the United Nations and to international organizations. The remaining four Annexes contain resolutions expressing gratitude, paying tribute to personalities, governments or historic events. However, one of the references to the events at UNCLOS III comprised in the Final Act deserves to be mentioned in the context of this article. Namely, para. 38 of the Final Act, refers to the decision taken in the informal plenary of the Conference at the resumed tenth session concerning the seats of the International Sea-Bed Authority and the International Tribunal for the Law of the Sea. As correctly stated in the Final Act, the informal plenary decided that its decision should be incorporated in the revision of the draft of the Convention; and that the introductory note to that revision should record the requirements agreed upon when the decision concerning the two seats was taken (A/CONF. 62/L.78). The requirements recorded in the introductory note to document A/CONF.62/L.78 are the following:
It should be noted that the decision on the seats of the Authority and the Tribunal were taken by the informal plenary subject to the requirement that the States specified should have ratified the Convention by the time of its entry into force and should remain parties to it thereafter.41

It could be said that para. 38 of the Final Act merely refers to a decision of the participants in UNCLOS III, the results of which have been incorporated in the LOS Convention itself: article 156 para. 4 in relation to the seat of the Authority, and article 1 para. 2, of Annex VI to the Convention in relation to the seat of the Tribunal. However, by signing the Final Act, which contains reference to the decision on the seats, the signatories of the Final Act, once more confirmed the decision of the informal plenary in the form of a written international agreement. It has to be stressed that they consented to both elements of that decision: the choice of the seats (Jamaica/Hamburg) and the requirement that the States specified should have ratified that Convention by the time of its entry into force and should remain parties to it thereafter. However, only the first part of the agreement the names of the sites have been incorporated in the Convention. 17. The above overview brings us to the conclusion that the Final Act (including its Annexes) does not have a unique legal nature. It consists of different kinds of texts;

40 41

King Gamble/Frankowska, see note 15, 122, 138 and 141. Introductory note to Doc. A/CONF.62/L.78 in: UNCLOS III, Official Records, Vol. XV, 176.

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(a) the report on UNCLOS III; (b) international agreements, mostly concluded in the form of resolutions; (c) expressions of gratitude and admiration; (d) recommendations to States and international organizations. The parts of the Final Act of UNCLOS III possessing the characteristics of conventional law are most relevant for the LOS Convention, as they form an integral whole with the Convention. As we have demonstrated above, so intrinsically linked with the Convention are not only the four resolutions contained in Annex I, which have been so qualified by the Final Act itself (para. 42). However, not only the parts of the Final Act which can be considered conventional law are important for the interpretation or application of the LOS Convention. All the elements of the Final Act compose the context of the LOS Convention and they serve these purposes. Namely, according to article 31 par. 2, of the 1969 Vienna Convention on the Law of Treaties the context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

5.

RELATION OF THE LOS CONVENTION TO OTHER TREATIES

18. The relation of the LOS Convention to the rest of the law of the sea remains a complex problem even if we limit our analysis only to its relationship to other treaties in the field. Its initial relation to customary international law was determined by its drafters, who claimed that in the Convention they achieved the codification and progressive development of the law of the sea (seventh preambular paragraph). Thus, in their opinion, the Convention represents a codification of customary international law, to which new solutions have been added. It is clear that twenty years after the drafting of the Convention, which has already accumulated 125 ratifications/accessions, and has considerably influenced domestic law (not only of States parties), the majority of the rules that represented innovations at the time of UNCLOS III, can nowadays be considered general customary international law (e.g. the rgime of achipelagic States, the transit passage rgime, the rules on the protection and preservation of the maritime environment, etc.). 19. The general provisions on the relation of the LOS Convention to other conventions and international agreements are contained in article 311, included in its Part XVII

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5 LOS CONVENTION AND THE LAW OF TREATIES

(Final Provisions).42 In fact, only paras 2-4 are of a general nature; others deal with the relation of the LOS Convention to particular treaties (para. 1), or with special questions (paras 5 and 6). Para. 5 confirms what is obvious from the preceding provisions in the Convention; the relation of specific parts/provisions of the Convention to other treaties in the field has been dealt with by other articles in the Convention:
This article does not affect international agreements expressly permitted or preserved by other articles of this Convention.

Those other articles of the Convention are to be considered lex specialis in relation to paras 2-4 of article 311. One of such provisions is to be found in Part III dealing with straits used for international navigation.43 Article 35 lit. c provides that nothing in this Part affects the legal rgime in straits in which passage is regulated in whole or in part by longstanding international conventions in force specifically relating to such straits. 20. A very important special provision on the relation of the LOS Convention to other conventions is contained in article 311 itself. Namely, its para. 1 provides that:
This Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958.

In respect of this relation three main views were expressed at UNCLOS III: (a) the new Convention should supersede the Geneva Conventions, as they are outmoded and inadequate; (b) changes should be adopted in the manner of application of the Geneva Conventions so as to avoid incompatibility with the new Convention and the need for abrogation of the Geneva Conventions; (c) co-existence along the lines of article 30 para. 4, of the 1969 Vienna Convention on the Law of Treaties should be allowed between the 1958 Conventions and the LOS Convention.44 The solution adopted in article 311 para. 1, is based on article 30 of the 1969 Vienna Convention concerning the application of successive treaties relating to the same subjectmatter. However, it expressly deals only with the relations between States parties to the LOS Convention who are also party to the Geneva Conventions. The solution that the LOS Convention prevails over the Geneva Conventions is based on article 30 paras 3

42

43 44

For unknown reasons the provisions on the relation of the LOS Convention to other treaties use the terms conventions, agreements, and international agreements, avoiding the generic term treaties, used by the 1969 Vienna Convention (article 2 para. 1 lit. (a)). See also: article 51 para. 1, article 74 para. 4; article 83. para. 4; arts 125, 197, 237 and 282. UNCLOS III, Informal Group paper-Doc. FC/7 (Presidents note, informal plenary on final clauses) of 9 August 1979, 2, para. 6. See also: N.S. Skourtos, Legal Effects for Parties and Non-Parties: The Impact of the Law of the Sea Convention, in: M.H. Nordquist/J.N. Moore (eds), 1994 Rhodes papers Entry into Force of the Law of the Sea Convention, 1995, 190-191.

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and 4 of the Vienna Convention, according to which the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. Thus, if there is any contradiction between the provisions of the Geneva Conventions and the LOS Conventions, the later shall be applied. A problem may arise in explaining the applicability of a provision of the Geneva Conventions which has not been replaced by another rule in the LOS Convention. It is a question, for example, whether the non-existence in the LOS Convention of a rule on the delimitation of the contiguous zone between States with opposite or adjacent coasts renders article 24 para. 3, of the 1958 Convention on the Territorial Sea and the Contiguous Zone inapplicable as between States parties to the LOS Convention.45 It has to be stressed that the necessity of delimiting the contiguous zones of neighbouring States has under the LOS Convention been reinforced by the coastal States control in relation to the archeological and historical objects on the sea-bed within its contiguous zone (article 303 para. 2), and that there was no explicit and clear decision of UNCLOS III not to have a rule on the delimitation of the continguous zone.46 Although article 311 para. 1 does not mention the relations between States parties to both the LOS Convention and the Geneva Conventions, and States parties only to the Geneva Conventions, the rejection of the abrogation of the Geneva Conventions at UNCLOS III, and the text of para. 1 contain an implied answer to this problem. It has to be based on article 30 para. 4 lit. b of the 1969 Vienna Convention:
When the parties to the later treaty do not include all the parties to the earlier one: ... (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

Taking into account the impressive number of 125 States parties to the LOS Convention, it may seem that the applicability of the 1958 Geneva Conventions is not a very important issue, as none of the Geneva Conventions has more than 62 States parties. However, it is interesting to note that comparing the lists of States parties to the LOS Convention and the Geneva Conventions, we discover that there is a considerable number of States parties to each of the Geneva Conventions which are not parties to the LOS Convention. Thus, there are 18 States parties to the Convention on the Territorial Sea and the Contiguous Zone, 22 parties to the Convention on the High Seas, 13 parties to the Convention on Fishing and Conservation of the Living Resources of the High Seas and 18 parties

45 46

See T. Treves, Rflexions sur quelques consquences de lentre en vigueur de la Convention des Nations Unies sur le droit de la mer, AFDI 40 (1994), 852. See B. Vukas, The LOS Convention and Sea Boundary Delimitation, Essays on the New Law of the Sea, Prinosi za poredbeno proucavanje prava i medunarodno pravo, 18 (1985) 21, 156-164.

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to the Convention on the Continental Shelf which have not become parties to the LOS Convention.47 The reasons for not becoming parties to the LOS Convention are not known in respect of all of the States parties to the Geneva Conventions. However, it is well known that some of them have problems in accepting various provisions of the LOS Convention. As this Convention is a unique instrument, covering the items dealt with by all the four Geneva Conventions, the problem a State may have with only some of the provisions of the LOS Convention, could prevent it to become party to this overall Charter of the Oceans. This is why it could be expected, for a long time to come, that there will be States parties to one or more Geneva Conventions, which will not become parties to the LOS Convention. 21. While in respect of the 1958 Geneva Conventions article 311 of the LOS Convention follows the principles of the 1969 Vienna Convention concerning the application of successive treaties relating to the same subject-matter (article 30), it claims priority of the LOS Convention in relation to all other agreements concluded by the States parties to this Convention. It pretends to play the role similar to the one of article 103 of the United Nations Charter. Namely, the promise that the rights and obligations of States parties which arise from other agreements shall not be altered, concerns only agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention (para. 2). The LOS Convention thus pretends to prevail over all other agreements in the field: rights and obligations of States parties to the LOS Convention arising from other agreements may be altered by the LOS Convention if they are not compatible with the Convention or they affect the rights or obligations of other States parties to the LOS Convention.48 The practical consequence of this provision is the duty of States parties of the LOS Convention to apply all their conventional obligations in accordance with this Convention or, when this is not possible, not to apply them at all. Article 311 para. 2, does not distinguish agreements concluded exclusively among States parties to the LOS Convention and agreements between parties and States non party to the LOS Convention, it disregards the principle pacta tertiis nec nocent nec prosunt (article 34 of the 1969 Vienna Convention). 22. Similarly to the clumsy manner in which para. 2 establishes priority of the Convention over all other agreements, para. 6 tries to construct the jus cogens nature of the principle of common heritage of mankind:

47 48

Multilateral Treaties Deposited with the Secretary General, Status as at 31 December 1996, 1997, Doc. ST/ LEG.SER.E/15, 831-849 and information received form Internet: http/www.un.org/Depts/los. See Skourtos, see note 44, 141-142.

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State Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof.

While the second part of para. 6 is a valid obligation undertaken by the States parties, the first part, as a treaty provision, could have only a symbolic, political effect. Namely, by undertaking not to amend one of the principles/articles of the Convention, States parties cannot be prevented from doing the contrary in the future. As long as this duty remains only as a treaty provision, it can be amended by a common decision of the States parties. The impossibility of changing the principle set forth in article 136 would be realistic only if it could be characterized as a peremptory norm of general international law. However, the qualification of the principle of common heritage of mankind as jus cogens invokes the question of other principles being recognized as peremptory norms, such as the freedom of the high seas; the access of land-locked States to and from the sea; the reservation of the high seas for peaceful purposes, etc. 23. Contrary to the vague innovative paras 2 and 6, paras 3 and 4 of article 311 deal with the future agreements of States parties to the LOS Convention in accordance with the standard rules of the law of treaties. They permit to two or more States parties to the LOS Convention to conclude agreements modifying or suspending the operation of the LOS Convention, applicable solely to the relations between them, under the following conditions: (a) such agreements must not relate to provisions derogation from which is incompatible with the effective execution of the object and purposes of the LOS Convention; (b) such agreements shall not affect the application of the basic principles embodied in this Convention; (c) the provisions of such agreements must not affect the enjoyment by other States parties of their rights or the performance of their obligations under the Convention; (d) States parties intending to conclude such an agreement shall notify the other States parties through the depository of this Convention of their intention to conclude the agreement and of the modification or suspension for which it provides. The conditions set forth for the conclusion of the agreements envisaged in article 311 paras 3 and 4 are based on article 41 of the 1969 Vienna Convention.

6.

THE LOS CONVENTION AND THE 1994 AGREEMENT

24. From the point of view of the law of the treaties, the 1994 Agreement relating to the implementation of Part XI and its relation to the LOS Convention represents a somewhat strange finale of the codification and progressive development of the law of the sea in the frame of the United Nations. As already mentioned, fearing the entry into force of the LOS Convention only for developing States, both developing and developed States accepted the idea of amending

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5 LOS CONVENTION AND THE LAW OF TREATIES

the results of UNCLOS III in a way which would make possible the participation in the LOS Convention also of developed States. In the course of the negotiations 1990-1994 on the amendments to the system adopted for the Area at UNCLOS III, several ideas were advanced concerning the mechanisms for the adoption of the final results of the negotiations. The main dilemma was whether formally to amend the Convention, or to find a way for the adoption of amendments without formally intervening in the text of Part XI.49 This second option prevailed, and a title was given to the 1994 Agreement which does not state its exact purpose. Namely, the Agreement does not deal with the implementation of Part XI as it is formulated in the LOS Convention, but it mostly contains additions to the provisions of Part XI and rules which temporarily or permanently substitute those from Part XI. In fact, article 2 para. 1, of the Agreement reveals the essence of the relationship between the two treaties:
The provisions of this Agreement and Part XI shall be interpreted and applied together as a single instrument. In the event of any inconsistency between this Agreement and Part XI, the provisions of this Agreement shall prevail (emphasis added).

The inconsistencies so conditionally and modestly mentioned in this provision were the main reason for concluding the Agreement. Thus, for example, the creation of a new organ of the Authority, the Finance Committee,50 can not be qualified as a possible inconsistency between Part XI and the Agreement. This can also be said for the provision on the performance by the Secretariat of the functions of the Enterprise,51 and the provision that as a general rule, decision-making in the organs of the Authority should be by consensus.52 Taking into account all the provisions of the Agreement, the purpose of which is that all the States parties to the LOS Convention become parties to the Agreement, and which do not offer the possibility of becoming party of the Agreement without being party to the Convention (arts 4-7), it becomes clear that the relationship between the Convention and the Agreement corresponds to the one envisaged in article 30 para. 3, of the 1969 Vienna Convention concerning the application of successive treaties relating to the same subject-matter:
When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminate or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.

49 50 51 52

See D.H. Anderson, The Mechanisms for Adjusting Part XI and their Relation to the Implementation Agreement in: Nordquist/Moore, see note 44, 89-97. Section 9 of the Annex to the Agreement. Para. 1, Section 3 of the Annex to the Agreement. Para. 2, Section 3 of the Annex to the Agreement.

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25. Unfortunately, in this brief study we could not analyse the real impact of the provisions of the Agreement for Part XI. Only such a scrutiny could demonstrate to what an extent the provisions of the 1994 Agreement serve to the implementation of Part XI, and which of them represent real amendments to Part XI and Annexes III and IV to the Convention. Yet, whatever conclusions we could reach in this respect, it can not be denied that it was only the adoption of the Agreement that made possible the universal participation in the LOS Convention and the establishment of the institutions it provides for: the International Sea-Bed Authority (in 1994), the International Tribunal for the Law of the Sea (in 1996) and the Commission on the Limits of the Continental Shelf (in 1997).

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Chapter 6

DROIT DE LA MER ET DROITS DE LHOMME*

1.

INTRODUCTION

Je dois avouer que le sujet de mon intervention ce colloque ne relve pas de mon choix propre. Je lai accept au lieu dun autre que jaimais encore moins. Mon problme avec ce sujet provient de deux caractristiques de ce domaine du droit international. Tout dabord, la majorit des rgles du droit de la mer concerne au moins indirectement les droits de lhomme. Comme la constat un auteur amricain, on mentionne souvent comme des sujets diffrents des droits de lhomme lexploitation des ressources naturelles et la protection de lenvironnement marin.1 Mais, si on se rappelle que le droit international et le droit interne de beaucoup de pays proclament le droit de la personne humaine la protection centre la faim, le droit des peuples au dveloppement et le droit de lindividu un environnement lui assurant une vie saine, alors on se rend compte quune grande partie du droit de la mer se trouve de fait automatiquement lie aux droits de lhomme. Autre aspect de mon problme: cest que dans le droit de la mer je ne trouve pas une opposition accentue entre les intrts et les droits de lindividu et ceux des Etats et de la communaut internationale. Cest peut-tre cause de cela que jai toujours eu une certaine sympathie pour ce domaine du droit international. Comme dans tous les domaines du droit international, la majorit des rgles juridiques sont adresses aux Etats. Prenons quelques exemples: larticle 62, paragraphe 1, de la Convention sur le droit de la mer oblige lEtat ctier favoriser une exploitation optimale des ressources biologiques dans la zone conomique exclusive.2 Larticle 210, paragraphe 1 demande aux Etats dadopter des lois et rglements afin de prvenir, rduire et matriser la pollution du milieu marin par immersion. A la base de ces rgles, les questions

Publi pour la premire fois dans La Mditerrane et le droit de la mer laube du 21e sicle, Actes du colloque inaugural de la Association Internationale du Droit de la Mer, Naples, 22 et 23 Mars 2001, (sous la direction de Giuseppe Cataldi), Bruylant, Bruxelles, 2002.
B.H. Oxman, Human Rights and the United Nations Convention on the Law of the Sea, in Politics, Values and Functions, International Law in the 21st Century, Essays in Honour of Professor Louis Henkin, Martinus Nijhoff Publishers, The Hague/London/Boston, 1997, p. 379. Le droit de la mer, Texte officiel de la Convention des Nations Unies sur le droit de la mer et de ses annexes accompagn dun index, Nations Unies, New York, 1984.

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suivantes se posent: quest-ce qui pourrait dpasser lexploitation optimale des ressources biologiques de la zone conomique exclusive?; quest-ce qui pourrait mettre en danger le milieu marin par limmersion de dchets? Oui, il se peut que ce soient les Etats, surtout en ce qui concerne la pollution des mers par immersion. Or, le milieu marin est galement constamment dgrad par lindustrie, par des installations et diffrentes activits qui ne sont pas entreprises ou contrles par les Etats. Ce sont prcisment les personnes physiques et diffrentes catgories de personnes morales qui menacent lenvironnement marin. Avec la disparition des Etats dits socialistes, les structures tatiques ne sont plus quindirectement coupables de la surexploitation des ressources biologiques. Mais, il est par ailleurs trs difficile de trouver des pcheurs qui tiennent compte de la survie des stocks de poisson. Cest seulement grce aux arrangements internationaux et au contrle des organes tatiques que ne disparaissent pas les stocks de certaines espces. Le lien presque naturel entre lhomme, la mer et lordre juridique pour les mers et les ocans a t encore renforc par la troisime Confrence sur le droit de la mer et par le rsultat principal de ladite Confrence la Convention des Nations Unies sur le droit de la mer. Cette rvision du droit de la mer avait t entreprise a la fin de la dcolonisation, lpoque dune certaine domination du Tiers Monde aux Nations Unies, o, nonobstant la guerre froide, lespoir de pouvoir tablir des relations internationales plus humaines avait t cr. Le prambule de la Convention sur le droit de la mer contient plusieurs principes qui confirment latmosphre qui rgnait au moment de la convocation de la troisime Confrence des Nations Unies sur le droit de la mer. A ct des intrts des Etats, on tentait de mettre en relief les intrts des peuples, des nations, de lhumanit tout entire. Dans dautres parties de la Convention et dans lActe final de la Confrence, il tait tenu compte des intrts des peuples nayant pas accd la pleine indpendance ou un autre rgime dautonomie reconnu par les Nations Unies, des intrts des territoires sous domination coloniale et de ceux des mouvements de libration nationale. Le maintien de la paix, la justice et le progrs pour tous les peuples du monde avaient t mis en avant comme les motifs principaux de la convocation de la Confrence.3 Les Etats participants la Confrence avaient exprim leur conviction que lordre juridique pour les mers et les ocans tabli par la nouvelle Convention contribuait la mise en place dun ordre conomique international juste et quitable dans lequel il serait tenu compte des intrts et besoins de lhumanit tout entire et, en particulier, des intrts et besoins spcifiques des pays en dveloppement4 Un des lments essentiels pour la ralisation de ce but tait la proclamation des fonds marins au-del des limites de la

3 4

Prambule, premier considrant. Prambule, cinquime considrant.

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juridiction nationale comme patrimoine commun de lhumanit.5 Finalement, les participants la Confrence exprimaient leur conviction que la codification et le dveloppement progressif du droit de la mer raliss dans la Convention contribueront au renforcement de la paix, de la scurit, de la coopration et des relations amicales entre toutes les nations, conformment aux principes de justice et dgalit des droits, et favoriseront le progrs conomique et social de tous les peuples du monde ....6 On trouve dans la Convention dautres principes et rgles qui devraient assurer une vie pacifique de lhumanit, dchire dune manire permanente tout au long de son histoire. Dans ce sens, on a adopt le principe daprs lequel la haute mer est affecte des fins pacifiques7 et la Zone des fonds marins au-del des limites de la juridiction nationale est ouverte lutilisation des fins exclusivement pacifiques par tous les Etats.8 A ct de ce principe qui sapplique aussi la zone conomique exclusive,9 les dispositions gnrales de la Convention contiennent le principe de lutilisation des mers a des fins pacifiques, qui sapplique a la Convention tout entire:
Dans lexercice de leurs droits et lexcution de leurs obligations en vertu de la Convention, les Etats Parties sabstiennent de recourir la menace ou lemploi de la force contre lintgrit territoriale ou lindpendance politique de tout Etat, ou de toute autre manire incompatible avec les principes du droit international noncs dans la Charte des Nations Unies.10

Il nous reste prsent voir certaines dispositions de la Convention sur le droit de la mer qui sappliquent directement aux droits de lhomme.

2.

SECURIT DES PERSONNES EN MER

En ce qui concerne la navigation, lactivit maritime la plus ancienne, il y a plusieurs dispositions dans la Convention dont le but est de protger la vie et la scurit des personnes en mer. Les rgles principales dans ce sens sont contenues dans larticle 94, qui traite des obligations de lEtat du pavillon. Cet article numre plusieurs mesures que lEtat du pavillon doit prendre pour assurer la scurit en mer. Ces mesures concernent la construction et lquipement du navire, la composition, les conditions de travail

5 6 7 8 9 10

Rsolution de lAssemble gnrale des Nations Unies 2749 (XXV) du 7 dcembre 1970; prambule, sixime considrant. Prambule, septime considrant. Article 88. Article 141. Article 58, paragraphe 2. Article 301.

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et la formation des quipages, lemploi des signaux, le bon fonctionnement des communications et la prvention des abordages.11 Outre ces mesures qui devraient assurer la scurit en mer, la Convention oblige les Etats et leurs navires prter assistance a quiconque est trouv en pril en mer.12 Les Etats ctiers sont tenus de faciliter la cration et le fonctionnement dun service permanent de recherche et de sauvetage adquat et efficace pour assurer la scurit maritime et arienne.13 Lapplication de cette rgle, qui se trouve dans la partie consacre la haute mer, est tendue aussi la zone conomique exclusive.14 Mais, lobligation de prter assistance existe aussi dans les autres parties de la mer. La Convention permet au navire qui traverse la mer territoriale dun pays tiers de sarrter et de mouiller si cela simpose dans le but de porter secours des personnes, des navires ou des aronefs en danger ou en dtresse.15 Le souci de protger des personnes en milieu marin, autrefois limit la navigation, stend aussi aux activits nouvelles en mer. Larticle 146 de la Convention requiert que des mesures ncessaires soient prises en vue dassurer une protection efficace de la vie humaine dans les activits menes dans la Zone. LAutorit internationale des fonds marins doit adopter a cette fin des rgles, rglements et procdures appropris pour complter le droit international existant.

3.

REPRESSION DE LESCLAVAGE

Aprs plusieurs sicles dun engagement sans rserve dans le commerce des esclaves provenant dAfrique, au XIXe sicle, les grandes puissances europennes ont progressivement accept de prendre des dispositions pour labolition de cette activit. Les diplomaties de ces pays, se considrant les seuls Etats civiliss, ont t engages plusieurs dcennies durant dans une activit qui a abouti ladoption dune disposition claire concernant linterdiction du transport desclaves. On trouve le rsultat de ces ngociations larticle 99 de la Convention sur le droit de la mer:
Tout Etat prend des mesures efficaces pour prvenir et rprimer le transport desclaves par les navires autoriss battre son pavillon et pour prvenir lusurpation de son pavillon cette fin. Tout esclave qui se rfugie sur un navire, quel que soil son pavillon, est libre ipso facto.

11 12 13 14 15

Article Article Article Article Article

94, 98, 98, 58, 18,

paragraphe paragraphe paragraphe paragraphe paragraphe

3. 1. 2. 2. 2.

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Sil existe de srieuses raisons de souponner quun navire tranger se livre au transport desclaves, il est ainsi permis un navire de guerre, qui croise en haute mer ou dans une zone conomique exclusive dun pays tiers, darraisonner ce navire.16

4.

PROTECTION DE LA LIBERT INDIVIDUELLE ET DE LINTGRIT DE LA PERSONNE HUMAINE

Dans lexercice de sa souverainet dans la mer territoriale et de ses droits souverains dans la zone conomique exclusive, lEtat ctier peut prendre des mesures qui sont ncessaires pour assurer le respect du droit international et de ses lois et rglements concernant les ressources biologiques quil a adopts conformment la Convention.17 Mais, la Convention contient certaines rgles qui limitent ces mesures de lEtat ctier en ce qui concerne lindividu. Ces restrictions sont expresses en ce qui concerne la zone conomique exclusive: Les sanctions prvues par lEtat ctier pour les infractions aux lois et rglements en matire de pche dans la zone conomique exclusive ne peuvent comprendre lemprisonnement ... ni aucun autre chtiment corporel. Mais, cette disposition, quon trouve au paragraphe 3 de larticle 73, permet que les Etats concerns conviennent autrement, cest--dire quun arrangement concernant les pcheries dun Etat ou dun groupe dEtats dans une zone conomique pourrait permettre lEtat ctier demprisonner les pcheurs trangers. Nanmoins, aucune exception de la sorte nest permise en ce qui concerne les chtiments corporels. Cette conclusion est base moins sur la formulation peu claire de larticle 73, paragraphe 3, que sur ma conviction que mme les Etats concerns ne peuvent pas se mettre daccord pour autoriser lapplication de chtiments corporels, qui sont, selon moi, interdits par le ius cogens gnral.18 Une restriction similaire est contenue aussi dans les dispositions concernant la protection du milieu marin. En cas dinfraction des normes internationales et nationales commises par des navires trangers, seules des peines pcuniaires peuvent tre infliges. Mais, cette disposition, ne prvoyant pas dexception en ce qui concerne les infractions commises au del de la mer territoriale,19 permet dappliquer dautres peines sil sagit dun acte dlibr et grave de pollution commis dans la mer territoriale.20 Partout o linfraction est commise et quels que soient lintention et le niveau de la pollution, la Convention demande que, dans le droulement des poursuites engages en vue de rprimer des infractions pour lesquelles des peines peuvent tre infliges, les

16 17 18 19 20

Article 110, paragraphe 1 b). Article 21, paragraphe 1 d); article 73, paragraphe 1. Voy. aussi: Oxman, op. cit., pp. 391392. Article 230, paragraphe 1. Article 230, paragraphe 2.

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droits reconnus de laccus soient respects.21 Pour tenter dinterprter la signification de cette dernire phrase elliptique, il convient de partager lopinion du Professeur Oxman selon laquelle cette phrase impose linterdiction de la discrimination lgard de tout accus dans lapplication du droit interne de lEtat ctier tout comme dans lapplication des normes pertinentes du droit international.22 Les rgles sur la prompte mainleve de limmobilisation du navire et prompte libration de son quipage sont des dispositions qui ne protgent pas seulement les diffrents intrts conomiques, mais aussi les droits de lhomme des membres de lequipage. Lorsque les autorits dun Etat Partie la Convention ont immobilis un navire battant pavillon dun autre Etat Partie en raison dune violation allgue des rgles relatives aux ressources biologiques ou la protection du milieu marin, la Convention prvoit la prompte mainleve de limmobilisation du navire et la prompte libration de son quipage des le dpt dune caution ou autre garantie financire.23 Le sjour forc et prolong dans le port dun Etat tiers peut dans certaines circonstances maladie, problmes familiaux, relations de travail violer les droits fondamentaux des membres de lquipage. Les affaires concernant la prompte mainleve traites par le Tribunal international du droit de la mer dmontrent que, outre dautres considrations, le Tribunal a tenu compte des conditions de lquipage et de son capitaine.24 Dans lAffaire du Monte Confurco, les parties taient divises sur le point de savoir si le capitaine du navire se trouvait en tat darrestation. Le Tribunal a demand quil soit precd sa mise en libert.25

5.

NOTIFICATION LTAT DU PAVILLON

Nonobstant le fait que les gouvernements en gnral ne sont pas trop proccups par la protection des droits de leurs citoyens, la situation est souvent diffrente quand les droits de leurs citoyens ou dautres personnes sous leur autorit sont viols par des Etats tiers. En consquence, les dispositions demandant que, dans certaines situations, lEtat du pavillon soit inform sur le sort des membres de lquipage de son navire peut aider au traitement correct des personnes concernes. LEtat ctier doit, si le capitaine le demande, notifier toute mesure prise dans lexercice de sa juridiction pnale dans sa mer territoriale un agent diplomatique ou un fonctionnaire consulaire de lEtat du pavillon.

21 22 23 24

25

Article 230, paragraphe 3. Oxman, op. cit., p. 399. Article 73, paragraphe 2; article 220, paragraphes 6 et 7; article 226, paragraphe 1; article 292. Tribunal international du droit de la mer, Affaire du navire Saiga (Saint-Vincent-et-les-Grenadines c. La Guine), Arrt du 7 dcembre 1997; Affaire du Camouco (Panama c. France), Arrt du 7 fvrier 2000; Affaire du Monte Confurco (Seychelles c. France), Arrt du 18 dcembre 2000. Tribunal international du droit de la mer, Affaire du Monte Confurco, paragraphe 90.

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LEtat ctier doit aussi faciliter les contacts entre cet agent ou fonctionnaire et lquipage du navire.26 Si un navire tranger a commis une infraction des rgles relatives la protection du milieu marin dans la mer territoriale, lEtat ctier est tenu de notifier sans retard lEtat du pavillon les mesures prises dans le cadre des poursuites.27 LEtat ctier nest pas tenu de notifier seulement les mesures prises dans la mer territoriale. Il doit aussi notifier lEtat du pavillon les mesures prises ainsi que les sanctions qui seraient prononces dans le cas dune saisie ou immobilisation dun navire tranger en raison de violations des rgles relatives aux ressources biologiques dans la zone conomique exclusive.28 Cet Etat doit aussi notifier lEtat du pavillon et tout autre Etat concern toutes les mesures prises a lencontre des navires trangers en application des dispositions de la Convention relative la protection du milieu marin.29

6.

PROTECTION DE LA SANT

La Convention contient certaines rgles dont le but est de protger la sant de la population de lEtat ctier. Parmi les questions sur lesquelles lEtat ctier peut adopter des lois et rglements relatifs au passage inoffensif, la Convention prvoit aussi la prvention des infractions aux lois et rglements ... sanitaires ... de lEtat ctier.30 Dans sa zone contigu, lEtat ctier peut exercer les contrles ncessaires en vue de prvenir les infractions ces lois et rglements sanitaires sur son territoire ou dans sa mer territoriale ou en vue de rprimer les infractions ces mmes lois et rglements.31 La Convention contient aussi des normes contre le trafic illicite des stupfiants et des substances psychotropes. Les Etats Parties sobligent cooprer la rpression de ce trafic auquel se livrent des navires naviguant en haute mer.32 Dans ce but, tout Etat qui a de srieuses raisons de penser quun navire battant son pavillon se livre au trafic illicite des stupfiants peut demander la coopration dautres Etats pour mettre fin ce trafic.33 Il nest pas permis au navire de guerre tranger ayant de srieuses raisons de souponner quun navire se livre au trafic illicite de stupfiants dexercer le droit de visite.34 Malheureusement, le droit de visite nest pas accord non plus aux navires de

26 27 28 29 30 31 32 33 34

Article Article Article Article Article Article Article Article Article

27. par. 3. 231. 73, par. 4. 231. 21, par. 1 (h). 33, par. 1. 108, par. 1. 108, par. 2. 110, par. 1.

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6 DROIT DE LA MER ET DROITS DE LHOMME

guerre trangers par des traits spcialiss contre le trafic des stupfiants conclus aprs la Convention sur le droit de la mer.35

7.

DROIT EN MATIRE DE PROCDURE

Le contenu des dispositions que nous venons de passer en revue dmontre clairement que lapplication des droits de lhomme dans le droit de la mer dpend des Etats: de lEtat ctier, de lEtat du pavillon et des Etats du pavillon des navires des Etats tiers. La Convention ne mentionne quune seule situation o lindividu, la personne physique, peut engager une procdure judiciaire pour la protection de ses droits. La personne qui est partie un contrat relatif aux activits dans la Zone dispose du droit de sadresser la Chambre pour le rglement des diffrends relatifs aux fonds marins du Tribunal international du droit de la mer.36 Une autre disposition permettant que dautres sujets et non lEtat portent une demande concernant les droits de lhomme devant une juridiction internationale, est constitue par la rgle concernant la prompte mainleve de limmobilisation du navire ou prompte libration de son quipage. La demande de mainleve ou de mise en libert peut tre faite non seulement par lEtat du pavillon, mais aussi en son nom.37 Elle peut tre faite par un reprsentant officiel de lEtat, par le capitaine du navire ou par son propritaire, mais toujours avec lautorisation de lEtat du pavillon.38

8.

CONCLUSION

En concluant son analyse dtaille sur les droits de lhomme et le droit de la mer, le professeur Oxman crivait:
It is unlikely that the UN Convention on the Law of the Sea, or the law of the sea more generally, will be accorded a central role in the history of the international law of human rights. But the foregoing review suggests that it may be deserving of more than a footnote. How much

35

36 37 38

Voy.: Article 17, paragraphe 3, de la Convention des Nations Unies contre le trafic illicite de stupfiants et de substances psychotropes, Vienne, 20 dcembre 1988, RGDIP, Vol. 93, 1989, p. 720 et s.; Article 6 de lAccord relatif au trafic illicite par mer, mettant en uvre larticle 17 de la Convention des Nations Unies contre le trafic illicite de stupfiants et de substances psychotropes, Strasbourg, 31 janvier 1995, RGDIP, Vol. 99, 1995, p. 212 et s. Article 187 (c). Article 292, paragraphe 2. Center for Oceans Law and Policy, University of Virginia, United Nations Convention on the Law of the Sea, A Commentary, Vol. V, M.H. Nordquist, Editor-in-chief, S. Rosenne, L.B. Sohn; Volume Editors, Martinus Nijhoff Publishers, Dordrecht, Boston, London, 1988, p. 70 et s.

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more may well depend on the way in which it is implemented in the years to come and, in that respect, the attention it receives by those most interested in the development and protection of human rights.39

Une des premires dcisions du Tribunal international du droit de la mer confirme cette prvision de lexpert amricain. En interprtant les rgles traditionnelles sur le droit de poursuite et en examinant lusage de la force lors de 1arraisonnement du navire Saiga, le Tribunal a dclar que les considrations dhumanit doivent sappliquer dans le droit de la mer, comme dans les autres domaines du droit international.40

39 40

Oxman, op. cit., p. 404. Tribunal international du droit de la mer, Affaire du navire Saiga, (no 2), (Saint-Vincent-et-les-Grenadines c. La Guine), Arrt du 1 juillet 1999, par. 155.

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IV DELIMITATION OF MARITIME AREAS

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Chapter 7

THE LOS CONVENTION AND SEA BOUNDARY DELIMITATION*

1. It is obvious that a comprehensive treaty containing the codification and progressive development of such a vast and complex area of international law like the contemporary law of the sea cannot satisfy all States, and that the legislative technique at international conferences does not allow the elaboration of international instruments as legislative masterpieces. Nevertheless, 157 States have, by their signatures, confirmed their opinion that the LOS Convention is an appropriate instrument to serve as a basis of the international legal order for the seas and oceans; they have also thereby confirmed their readiness to submit the Convention to their national procedures for ratification. Contrary to this view of the vast majority of the international community, some States have not signed the Convention because of their fears that it does not fit their national interests. These interests are in some cases hardly discernible. In others, the advanced interests serve to hide the real reasons for rejecting the Convention which, although not always recognized, are: the belief that the Convention provisions better serve the cause of an unfriendly neighbour; the incompatibility of the Convention with national economic or military interests; the conviction that the Convention does not sufficiently take into account the specific geographic or historic characteristics of a State (or group of States). In some instances, however, it is the general mistrust of international law, and not of the content of specific solutions inserted in the Convention, that prevent its acceptance. Besides these subjectively-based reproaches to the LOS Convention, it must be admitted that some of its solutions are vague (e.g. navigation of warships), that many provisions are of a purely hortatory character (e.g. some provisions on the protection and preservation of the marine environment) and that the solution of some questions has been neglected (e.g. military uses of the sea). One of the subjects the solution of which has caused a lot of criticism is the sea boundary delimitation. In the final stages of the Conference (in 1981) E.D. Brown went so far as to state:

First published in Essays on the New Law of the Sea, Prinosi za poredbeno proucavanje prava i medunarodno pravo, Pravni fakultet Sveucilita u Zagrebu, Institut za medunarodno pravo i medunarodne odnose, (Budislav Vukas, ed.), Volume XVIII No. 21, Zagreb, 1985.

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Both as regards the criteria of delimitation and the settlement of delimitation disputes, it must be said that the provisions of the Draft Convention are abominably bad.1

2. The extension of the limits of existing maritime zones under the sovereignty, sovereign rights and jurisdiction of the coastal States (territorial sea, contiguous zone, continental shelf) and the creation of new zones (exclusive economic zone, archipelagic waters), as well as the ever-increasing dependence upon the sea and its natural resources, have immensely increased the importance of the delimitation of maritime zones between States with opposite or adjacent coasts. The establishment of new independent States has also contributed to the complexity of the problem of maritime delimitation.2 The purpose of this article is to analyse the provisions of the LOS Convention concerning delimitation and to see to what extent they provide a useful and workable basis for determining maritime boundaries between States. Our research will take into account: a) the substantive provisions on the delimitation of the territorial sea, the exclusive economic zone and the continental shelf of neighbouring States; b) the problem caused by the omission of any rule concerning the delimitation of the contiguous zone; c) the provisions on the settlement of delimitation disputes.

1.

TERRITORIAL SEA

3. Territorial sea is the only maritime zone concerning which the rule on delimitation between opposite or adjacent States at UNCLOS III remained almost unchanged, as compared to the 1958 Geneva codification. Although several proposals were advanced both in the Sea-Bed Committee and at the beginning of the Conference,3 in Caracas the problem of the delimitation of the territorial sea was not often raised in discussion. As in relation to other zones, Greece defended the supremacy of the median line principle, while Turkey (supported by Iraq) pleaded for the application of the equitable principles.4

1 2

E.D. Brown, Delimitation of offshore areas hard labour and bitter fruits at UNCLOS III, Marine Policy, Vol. 5, No. 3, 1981, pp. 172-184, at p. 181. E.J. Manner, Some Basic Viewpoints on Delimitation of Marine Areas between Neighbouring States, The Frontier of the Seas The Problems of Delimitation, Proceedings of the 5th International Ocean Symposium, November 26-27, 1980, The Japan Shipping Club, Tokyo, Japan, pp. 7-17, at p. 7; S.P. Jagota, Maritime Boundary, RCADI, Vol. 171, 1981-II, pp. 81-224, at p. 89. See some characteristic proposals: China, A/AC.138/SC,II/L.34, 16 July 1973, Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction, Vol. III, General Assembly, Official Records: Twenty-eighth Session, Supplement No. 21 (A/9021), 1973, p. 71; Turkey, A/CONF.62/C.2/L.9, 15 July 1974, UNCLOS III, Official Records, Vol. III, p. 188; Greece, A/CONF.62/C.2/L.22, 25 July 1974, ibid., pp. 200-201. See the interventions in the Second Committee: Turkey, UNCLOS III. Official Records, Vol. II, p. 104; Greece, ibid., p. 111; Iraq, ibid., p. 115.

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Main trends, a working paper prepared after the Second Session of the Conference (October, 1974) contained alternatives reflecting characteristically different proposals.5 However, the first draft of the future Convention, the Informal Single Negotiating Text (ISNT), adopted Article 12 of the 1958 Convention on the Territorial Sea and the Contiguous Zone (Art. 13 of ISNT), as had been suggested by the United Kingdom.6 4. Although the delimitation provisions were to become one of the hard-core issues of the Conference, the delimitation of the territorial sea was not seriously debated between the partisans of the median line and the supporters of equitable principles. In the opinion of L. Caflisch, this was because the International Court of Justice in the North Sea Continental Shelf cases stated that the distorting effects of lateral equidistance lines under certain conditions of coastal configurations are comparatively small within the limits of territorial waters, although they increase gradually in step with the distance from the coast.7 The reopening of this question was mentioned only from time to time as a threat by the equitable-principles States: they wanted to balance the adoption of the median line criterion in the territorial sea delimitation rule with the priority of the equitable principles regarding the delimitation of the exclusive economic zone and the continental shelf. Thus, Article 12, paragraph 1, of the 1958 Geneva Convention became Article 15 of the LOS Convention. The first sentence of Article 15 is identical to the corresponding part of Article 12 of the 1958 Convention. Agreement remains the first means for the delimitation of the territorial sea between States whose coasts are opposite or adjacent; if there is no contrary agreement, the two States are entitled to extend their territorial sea to the median line. The substance of the second sentence in the two Conventions is also the same: the provision contained in the first sentence will not be applied where it is necessary by reason of historic title or other special circumstances to delimit the territorial sea differently. However, on the basis of a suggestion by the Yugoslav delegation, the Chairman of Negotiating Group 7, Judge Manner (Finland) proposed two drafting changes in the second sentence of Article 15, which clarified the relation between the two sentences.8

5 6 7

Doc. A/CONF.62/C.2/WP.1, 15 October 1974, Provision 21, Formulae A-D, UNCLOS III, Official Records, Vol. III, p. 107, at p. 111. Doc. A/CONF.62/WP.8/Part II, 7 May 1975, UNCLOS III, Official Records, Vol. IV, p. 152, at p. 154; the proposal of the United Kingdom, A/CONF.62/C. 2/L.3, 3 July 1974, ibid., Vol. III, p. 183. North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3, at pp. 18 (para. 8) and 37 (para. 59); L. Caflisch, Les zones maritimes sous juridiction nationale, leurs limites et leur dlimitation, in D. Bardonnet, M. Virally, Le nouveau droit international de la mer, Paris, Pedone, 1983, pp. 35-116, at p. 47. In the opinion of the Yugoslav representative, the literal interpretation of the second sentence of Article 12, paragraph 1 of the 1958 Geneva Convention in fact led to the inapplicability of the whole of paragraph 1 if the conditions of the second sentence were satisfied, and not only to the inapplicability of the first sentence, the real intention of the drafters. That is why he suggested to replace The provisions of this

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These were included already in the first revision of the Informal Composite Negotiating Text (ICNT/Rev.1) in 1979, and remained in the final text of Article 15.9 5. UNCLOS III has changed nothing substantial in the provision on the delimitation of the territorial sea. Neither has it clarified the content of this provision: the terms historic title and special circumstances remain as vague and obscure as before. But, having concluded that nothing has been changed in this provision, one should not ignore the changes in the LOS Convention related to that rule. a) Article 15 is the only delimitation provision in the LOS Convention that mentions the median line as a delimitation criterion. What are the consequences of the fact that the median line is no longer a criterion for the delimitation of the contiguous zone and the continental shelf, as it was under Article 24 of the Convention on the Territorial Sea and the Contiguous Zone and Article 6 of the Convention on the Continental Shelf? In our view, the decision of States participating in UNCLOS III to retain the old provisions on the delimitation of the territorial sea confirms their conviction about the adequacy of that norm. On the basis of that decision, one could easily claim the customary nature of that rule. The fact that the provisions on the delimitation of other maritime zones have been changed does not affect the rule on the delimitation of the territorial sea. Quite the contrary: the nonexistence of any rule on the delimitation of the contiguous zone and the vagueness and emptiness of the delimitation formula for the exclusive economic zone and the continental shelf (para. l of Art. 74 and 83) suggest a reference to the content of Article 15 also in relation to these maritime zones (see below pp. 194 and 199). Moreover, a link between the delimitation of the territorial sea and that of the exclusive economic zone and the continental shelf is further suggested by the identical paragraph 4 of Articles 74 and 83.
Where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone/continental shelf shall be determined in accordance with the provisions of that agreement.

paragraph at the beginning and this provision at the end of the second sentence. (This authors notes of the meeting of Negotiating Group 7 held on the 20 April 1978). Nobody opposed the commentaries and suggestions of Yugoslavia. In fact, in his suggestions dated 27 April 1978 (doc. NG7/9), the Chairman of the Negotiating Group suggested the replacement of the two disputed phrases by The above provision and therewith. He repeated them in his Informal Suggestions of 2 May 1978 (doc. NG7/11), as well as in his Report at the end of the first part of the Seventh Session, on 17 May 1978 (doc. NG7/21). Consequently, these two drafting amendments were included in the next draft the ICNT/Rev.l (Doc. A/CONF.62/ WP.10/Rev.1, 28 April 1979, Art. 15). The final text of Article 15 reads: Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.

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Finally, the scope of the application of the provision on the delimitation of the territorial sea has been broadened in the new Convention: it now also applies to the delimitation of the territorial sea in the case of two neighbouring archipelagic States.10 b) Disputes arising out of the interpretation or application of Article 12 of the 1958 Convention on the Territorial Sea and the Contiguous Zone are submitted to a compulsory settlement of disputes system only if the parties to the dispute, besides being parties to the Convention, are parties to a separate treaty: the 1958 Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes. Disputes concerning the interpretation or application of Article 15 of the LOS Convention shall be submitted to the settlement of disputes procedures contained in the LOS Convention itself (Part XV). This, in our view, will facilitate the conclusion of agreements on delimitation and will encourage States to avoid disputes. States will be more inclined to renounce the strict application of the median line in cases of some exceptional conditions of coastal configuration and, furthermore, to not invoke, special circumstances if they have nothing to do with the delimitation in a certain area; historic title will not be claimed if it had no recognition by neighbouring States in the past.

2.

CONTIGUOUS ZONE

UNCLOS I

6. The draft articles on the law of the sea prepared by the International Law Commission in 1956 did not provide any provision on the delimitation of the contiguous zone. Article 66 contained only a general rule on the extension of the contiguous zone and a provision on the control of the coastal State.11 Commenting on Article 66 of the Commissions Report, the Government of Norway stressed the necessity of making clear that the control may not be exercised in waters which are closer to the baseline of another State than to the baseline of the State exercising the control...12 At UNCLOS I the delegation of Yugoslavia proposed the addition to Article 66 of a provision concerning the delimitation of the contiguous zone between opposite or adjacent States:
The delimitation of this zone between two States the coasts of which are opposite each other at a distance less than the breadth of their territorial seas and contiguous zones, or between two adjacent States, is constituted, in the absence of an agreement, by the median line every

10 11 12

See Caflisch, op. cit., pp. 52-53. Report of the International Law Commission, General Assembley, Official Records: Eleventh Session, Supplement No. 9 (A/3159), pp. 11 and 39. Doc. A/CONF.13/5, 23 October 1957, p. 70.

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point of which is equidistant from the nearest points on the baselines from which the breadths of the territorial seas of the two States are measured13

The Yugoslav proposal, introduced in the First Committee by N. Katicic, was adopted without any discussion by 52 votes to 3, with 19 abstentions.14 Warned by the Drafting Committee of some inconsistencies between the text of the adopted Yugoslav proposal and that of Article 12, paragraph 1 on the delimitation of the territorial sea,15 the First Committee decided to revise Article 66, paragraph 3 in accordance with Article 12. The following revised text of Article 66, paragraph 3 was adopted by 24 votes to 6, with 9 abstentions:
Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its contiguous zone beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of the two States is measured.16

When reported to the Plenary, the First Committees text of Article 66 failed to obtain the required two thirds majority, obviously because of the content of the first two paragraphs (40 votes to 27, with 9 abstentions).17 The Plenary adopted a United States proposal18 (60 votes to none, with 13 abstentions) containing a different text for paragraphs 1 and 2, but the same paragraph 3 (on delimitation) as the First Committees Report.19 7. The acceptance of the (amended) Yugoslav proposal for the delimitation of the contiguous zone may be considered a natural consequence of the adoption of the same options for the delimitation of the territorial sea. However, there is a difference between Articles 24 and 12 of the Convention on the Territorial Sea and the Contiguous Zone: agreement between the two States and the median line are the only criteria for the delimitation of the contiguous zone, while in relation to the delimitation of the territorial sea these criteria shall not be applied if there are historic titles or other special circumstances prevailing.20

13 14 15 16 17 18 19 20

A/CONF.13/C.1/L.54, 26 March 1958 (Incorporating A/CONF.13/C.1/L.54/Corr.1/Rev.1), UNCLOS I. Official Records, Vol. III, p. 226. Ibid., pp. 91 and 182. A/CONF.13/C.1/L.167, 24 April 1958, ibid., p. 257. Ibid., pp. 198-199. UNCLOS I, Official Records. Vol. II, p. 40. A/CONF.13/L.31, 24 April 1958, ibid., p. 126. Ibid., p. 40. The only State which had a reservation concerning to paragraph 3 of Article 24 was Venezuela; the United Kingdom and the United States objected to that reservation; Multilateral Treaties in respect of which the Secretary-General Performs Depositary Functions, List of Signatures, Ratifications, Accessions, etc. as at 31 December 1979 (ST/LEG/SER.D/13), pp. 568, 570 and 571.

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In view of the developments at UNCLOS III and the situation created by the omission from the LOS Convention of any rule on the delimitation of the contiguous zone, it is interesting to quote the explanations of two delegations at UNCLOS I regarding the negative vote they cast in relation to the Yugoslav proposal. The Argentinian delegate, Mr. Ledesma, stated that he considered that the contiguous zone, being part of the high seas, should not be subject to any delimitation;21 Sir Gerald Fitzmaurice (United Kingdom), according to the Official Records, added that the delimitation of a zone of the high seas presupposed the existence of exclusive rights in that zone; he saw no reason for delimiting a zone in which the coastal State exercised rights of control only.22
UNCLOS III

8. In the course of the preparations for UNCLOS III India proposed a text for the contiguous zone article which contained no provision on the delimitation of the contiguous zone between States with opposite or adjacent coasts.23 At the Second Session of the Conference the Eastern European States proposed for the article on the contiguous zone a text identical to Article 24 of the Geneva Convention, including the provision on delimitation.24 Introducing the proposal, the representative of the German Democratic Republic said that the rules on delimitation contained in article 24 of the 1958 Geneva Convention had stood the test of practice...;25 no delegation contradicted this assertion.26 The proposed provision on the delimitation of the contiguous zone was included in the main trends which have emerged from the proposals of States27 (Provision 49), but never in the drafts of the Convention prepared by the Chairmen of the Second Committee, the Collegium or the Conference itself. 9. There has never been a convincing explanation for the omission of the rule on the delimitation of the contiguous zone, at the Conference although some States did question the soundness of such a solution. The only article by article examination of the Second Committees Parts of the Convention was performed on the basis of the ISNT28 during the Fourth Session of the Conference and it was only then that the pro-

21 22 23

24 25 26 27 28

UNCLOS I, Official Records, Vol. III, p. 199. Ibid., p. 199. Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction, Vol. IV, General Assembly, Official Records: Twenty-eighth Session, Supplement No. 21 (A/9021), p. 47; UNCLOS III, Official Records, Vol. II, p. 121. Doc. A/CONF.62/C.2/L.27, 27 July 1974, UNCLOS III, Official Records, Vol. III, p. 205. Ibid., Vol. II, p. 234. Ibid., pp. 234-235. Doc. A/CONF.62/C.2/WP.1 (Introduction). Doc. A/CONF.62/WP.8/Part II.

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vision on the delimitation of the contiguous zone was mentioned by various delegations. States in favour of maintaining the contiguous zone regime (Italy, India, Sudan, Greece, Belgium, Cyprus, Bangladesh, Tunisia, Zaire, Nicaragua, Western Samoa, Algeria, Togo) pleaded for the inclusion of such a provision in the Convention, together with some other delegations who suggested the contiguous zone be eliminated from the new Convention in view of the new developments concerning the extension of the coastal States rights (Switzerland, Yugoslavia). The only State which expressly denied the usefulness of a delimitation provision was the Netherlands. The Dutch delegation saw no necessity for the existence of the contiguous zone once the territorial sea was extended to 12 nautical miles. The specific reason for opposing a delimitation rule, however, was expressed at the Sixth Session in 1977: the characteristics of the contiguous zone render unnecessary its delimitation between adjacent or opposite States, as the competences of both States can be exercised in the area where their respective contiguous zones overlap. The majority of delegations in favour of a delimitation provision supported Article 24, paragraph 3, of the 1958 Geneva Convention (India, Sudan, Belgium, Yugoslavia, Cyprus, Western Samoa). Whilst Italy and Greece believed the method of delimitation should be the median line, Turkey and Bangladesh insisted that the provision on the delimitation of the contiguous zone should be drafted in accordance with the provision on the delimitation of the exclusive economic zone of States having opposite or adjacent coasts, while Nicaragua was of the opinion that the rules on delimitation should be identical for all maritime zones. Opposed to the exclusive use of the median line were also Togo and Algeria, the latter suggesting the application of the equity principle. Zaire gave priority to agreement as a method of delimitation.29 No result was concluded from these suggestions and the new draft the Revised Single Negotiating Text (RSNT) appeared without a provision on the delimitation of the contiguous zone.30 Once again, at the Sixth Session in 1977, the question of the delimitation of the contiguous zone was raised (Cyprus) in the Consultative Group of the Second Committee.31 The Chairman of the Committee, A. Aguilar, did not say why the delimitation provision had been excluded from the ISNT, but explained that it had been omitted from the RSNT (prepared by himself) because several delegations opposed such a rule. That Statement was not correct in view of what really happened when article 33 of the ISNT was discussed at the Fourth Session when only the Netherlands expressly opposed the delimitation rule. This time only the delegations from Cyprus and Peru demanded the

29 30 31

This authors notes, taken at the informal meetings of the Second Committee on the 29 and 30 March 1976, and of its Consultative Group on delimitation on 1 July 1977. Doc. A/CONF.62/WP.8/Rev.1/Part II, 6 May 1976, UNCLOS III, Official Records, Vol. V, p. 151. This authors notes, taken at the informal meetings of the Second Committee Consultative Group on delimitation on 17 and 20 June, and 1 July 1977.

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inclusion of a provision on delimitation; however, the Netherlands was again against such a provision. According to the procedure at that stage of the Conference, it was obvious that there was no sufficient support for the inclusion of a provision dealing with the delimitation of the contiguous zone in the next draft the Informal Composite Negotiating Text (ICNT).32 At the Seventh Session (May, 1978), Yugoslavia based its opposition to the retention of the contiguous zone inter alia on the omission of any rule on delimitation which could, it believes, result in disputes concerning the extension of the contiguous zones of opposite and adjacent States. This argument was supported by the delegations of El Salvador and Turkey.33 During the first part of the Eighth Session (March, 1978), the delimitation of the contiguous zone was mentioned in Negotiating Group 7. The representative from Israel, Sh. Rosenne, did not deem a provision on that question necessary as, in his opinion, the contiguous zone of two States could overlap. In opposition to this, the delegations of Cyprus and Pakistan stressed the need for a provision on delimitation.34 Although, as Chairman of the Negotiating Group, Judge Manner did naturally not express his own private opinion on the issue, he did personally support the inclusion in the Convention of a provision on the delimitation of the contiguous zone on the basis of Article 24, paragraph 3, of the Geneva Convention.35 At subsequent sessions, during the exhausting negotiations on the delimitation of the exclusive economic zone and the continental shelf, delimitation of the contiguous zone has never been publicly mentioned. Consequently, Article 33 of the LOS Convention does not contain any provision on the delimitation of the contiguous zone. Such a result of the Conference, together with the non-accessibility to all the preparatory work of the Convention, requires an explanation of the real reasons for and consequences of this curious omission /E.D. Brown/.36 10. The old argument, advanced by Sir Gerald Fitzmaurice at UNCLOS I and repeated by some delegations at UNCLOS III, that there is no reason for delimiting a zone of the high seas in which coastal States exercise no exclusive rights, but only rights of control,37 has nowadays lost any significance. The contiguous zone is no longer defined as a zone of the high seas, as it was in Article 24, paragraph 1, of the Geneva Conven-

32 33 34 35 36 37

Doc. A/CONF.62/WP.10, 15 July 1977, UNCLOS III, Official Records, Vol. VIII, p. 1. This authors notes from the informal meeting of the Second Committee held on 1 May 1978. This authors notes from the informal meetings of the Negotiating Group 7 held on 26 and 30 March 1979. See Panel Discussion on the Impact of Delimitation, The Frontier of the Seas The Problems of Delimitation..., pp. 72-73, at p. 73. Brown, op. cit., p. 173; see also H. Dipla, Le rgime juridique des les dans le droit international de la mer, Paris, Presses Universitaires de France, 1984, pp. 142 and 229. In this sense T. Treves, La Convenzione delle Nazioni Unite sul diritto del mare del 10 dicembre 1982, Milano, Giuffr, 1983, note 13 at p. 30.

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tion (Art. 33, para. 1 of the LOS Convention). This change in its definition is indispensable, as in the majority of cases the contiguous zone will be a part of the exclusive economic zone. The second change is even more important: in addition to the competences enumerated in Article 33, paragraph 1, the coastal State has now been endowed with the right to control traffic of objects of an archeological and historical nature found on the sea-bed of its contiguous zone (Art. 303, para. 2). It is inconceivable that the coastal States right, mentioned in Article 303, could be exercised by more than one State, for that right is of an exclusive nature. As the contiguous zone will most often be part of the exclusive economic zone in the future, the question is posed of whether the provision on the delimitation of the economic zone suffices also for the delimitation of the contiguous zone. The answer would have to be negative, as there will probably be States willing to establish their contiguous zone, but not an exclusive economic zone. If a State does not claim an exclusive economic zone, or if her economic zone is narrower than her contiguous zone, the problem may arise of the delimitation of her contiguous zone with maritime zones of the neighbouring State (territorial sea, contiguous zone, exclusive economic zone or the continental shelf). Even if both the contiguous zones and the exclusive economic zones of the neighbouring States overlap, the boundaries of these two different maritime zones should not always coincide. The relevant provision on the delimitation of the exclusive economic zone (Art. 74, para. 1), which will be analysed later, provides that the delimitation shall be effected by agreement on the basis of international law in order to achieve an equitable solution. We concur with the opinion that an equitable solution for the delimitation of the exclusive economic zone could be based on considerations irrelevant for the delimitation of the contiguous zones.38 An opposing view is expressed by S.P. Jagota, Vice-Chairman of the delegation from India the State which, in the Sea-Bed Committee, proposed the contiguous zone article without a delimitation provision:
The SNT made no reference to delimitation of the contiguous zone, presumably because this would be covered by the principles applicable to the delimitation of the exclusive economic zone.39

In view of the events at UNCLOS III, one must agree with L. Caflisch that mere negligence is not a satisfactory explanation for the omission of the delimitation rule, the more plausible explanation being the reluctance of the delegations to create additional problems for the already complex negotiations on the delimitation of the exclusive economic zone

38 39

Caflisch, op. cit., pp. 56-57. Jagota, op. cit., p. 174.

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and the continental shelf.40 One should not exclude the influence of the Chairman of the Second Committee, A. Aguilar, here. The Head of the delegation from Venezuela, a State that persistently warred at the Conference against the application of the medianline principle, could not have been happy with yet another rule (besides the one concerning the territorial sea) based on that principle. 11. Having concluded that a need exists for a rule on the delimitation of the contiguous zone, the question arises whether, once the LOS Convention enters into force, there will be a legal vacuum concerning that question, or whether States will have to conform to certain international rules. For the relations among States Parties only to the 1958 Convention on the Territorial Sea and the Contiguous Zone and their relations with States Parties to the LOS Convention, the answer is clear: Article 24, paragraph 3 of the 1958 Convention will continue to be applied (on the basis of Art. 311 of the LOS Convention). As concerns the relation between States Parties to the LOS Convention, the answer depends upon the conclusion concerning the real reason for the omission of any delimitation provision from the new Convention. If we conclude that there was an express decision at UNCLOS III not to have any rule on the delimitation of the contiguous zones because no need to delimit the overlapping contiguous zones of neighbouring States was acknowledged, then there would be no room for either the application of Article 24, paragraph 3 of the Geneva Convention or any customary rule (based on Art. 24, para. 3, or any other) between States parties to the LOS Convention. If, on the contrary, the conclusion is that the mentioned omission was not caused by a clear decision of the Conference that a delimitation provision was not necessary, but by other, incidental reasons (negligence, fear from complicating the solution of a hard-core issue, etc.), then existing conventional and customary provisions on delimitation of the contiguous zone could be applied even between States Parties to the LOS Convention. As the record of the Conference on that issue leaves no doubt concerning the plausibility of this latter conclusion, Article 24, paragraph 3 of the Geneva Convention may be applied to States which are parties to both the Geneva Convention and the LOS Convention. Article 311, paragraph 1 of the LOS Convention does not exclude the application of the Geneva Convention between its States Parties, but only gives priority to its own provisions (This Convention shall prevail...). Thus, for a question not resolved by the LOS Convention, even between States Parties to this Convention, a rule contained in the 1958 Geneva Convention can be applied.41

40 41

Caflisch, op. cit., pp. 55-56. In this sense see J. Evensen, The Delimitation of Exclusive Economic Zones and Continental Shelves as Highlighted by the International Court of Justice, The New Law of the Sea, Selected and Edited Papers of the Athens Colloquium on the Law of the Sea, September 1982, edited by Ch. L. Rozakis and C. A. Stephanou, Amsterdam, New York, Oxford, North-Holland, 1983, pp. 107-154, at pp. 146-147.

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12. Moreover, it is our view that the principles contained in Article 24, paragraph 3 of the 1958 Convention shall be applicable to all States Parties to the LOS Convention and not only to those among them which are also Parties to the Geneva Convention. Namely, the States Parties to the LOS Convention have agreed that matters not regulated by this Convention continue to be governed by the rules and principles of general international law (eighth operative paragraph of the Preamble). Delimitation of the contiguous zone is such a matter(s) not regulated by this Convention and the provision of Article 24, paragraph 3 of the Geneva Convention does contain principles of general (customary) international law. Notwithstanding the scarce application of this rule in the practice of States, because of the rare cases of delimitation of the contiguous zone, and the reluctance of UNCLOS III to include it in the new Convention, we reach such a conclusion primarily because of the close link between the contiguous zone and the territorial sea. The validity of the principles on the delimitation of the territorial sea of neighbouring States contained in Article 12 of the Geneva Convention has been confirmed by Article 15 of the new Convention, and the same principles have to determine the delimitation of the contiguous zone a rgime at sea in which the coastal State exercises control in order to prevent and punish infringements of its laws and regulations within its territorial sea (or territory).42 It was precisely because of the close link between the problems of delimitation of the territorial sea and the contiguous zone that the Yugoslav proposal for Article 24, paragraph 3, of the 1958 Geneva Convention, basing the delimitation of both regimes upon the same main criteria, was accepted by such a vast majority at UNCLOS I. 13. In relation to the delimitation of the contiguous zone one more question remains to be answered. Is the LOS Conventions settlement of disputes system applicable also to disputes concerning the delimitation of the contiguous zone? Contrary to C.P. Econo-

42

In this sense Z. Periic, Spoljni morski pojas u buducoj konvenciji o pravu mora, JRMP, Vol. 26, Nos. 1-3, 1979, pp. 135-144, at p. 142. Professor Nakamura says: In so far as the contiguous zone is interpreted to be further seaward expansion of the coastal States authority in its land territory and territorial sea, the principle of its delimitation should be devised in line with that of the territorial sea, K. Nakamura, The Delimitation of Sea Areas and the Partition of Resources, The Frontier of the Seas The Problems of Delimitation..., pp. 58-64, at p. 63. See also Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 246, at p. 302 (para 120). An interesting example of the connection between the delimitation of the territorial sea and the contiguous zone is provided by the Convention between France and Spain on the Delimitation of the Territorial Sea and the Contiguous Zone in the Gulf of Gascogne (Gulf of Biscay), signed in Paris on the 29 January 1974 (ST/LEG/SER.B/19, pp. 395-396). As the agreed line at present delimits the territorial sea of one State (France) from the territorial sea and the contiguous zone of the other (Spain), the following is a provision for possible changes in the future: Il est convenu que, dans lventualit o lEspagne tendrait douze milles la largeur de sa mer territoriale, la ligne MPQ deviendrait la ligne de partage des mers territoriales respectives des deux Etats. (Art. 3).

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mides,43 we are of the opinion that it is not. Our answer is negative because the settlement of disputes system (Part XV of the Convention) applies to any dispute concerning the interpretation or application of this Convention... (Art. 279 and 286). As delimitation of the contiguous zone is not a matter covered by the Convention, neither the general provisions (Part XV, Section 1) nor the compulsory procedures entailing binding decisions (Section 2) or the optional exceptions to the applicability of Section 2 (Art. 298, para.1/a/) are applicable to the disputes concerning delimitation of the contiguous zone.

3.

EXCLUSIVE ECONOMIC ZONE AND CONTINENTAL SHELF

14. The long and different discussions at UNCLOS III concerning the provisions on the delimitation of the exclusive economic zone and the continental shelf were characterized by the confrontation of two groups of States with conflicting views: the so-called proequidistance and pro-equity States. We have no intention here to enter either into an analysis of the arguments of the two groups or into a review of their protracted negotiations; we shall only try to evaluate the final result of the Conferences efforts in this field: Article 74 (Delimitation of the exclusive economic zone between States with opposite or adjacent coasts) and Article 83 (Delimitation of the continental shelf between States with opposite or adjacent coasts) of the LOS Convention. The content of the two articles is identical and they consist of four paragraphs.
PARAGRAPH

1 DELIMITATION AGREEMENT

15. The authors of several drafts of the LOS Convention (ISNT, RSNT, ICNT) tried to follow the example of the 1958 codification: to draw up a normative provision enumerating the relevant criteria for the final delimitation of the exclusive economic zone and the continental shelf between adjacent or opposite States.44 The persistent opposing views of the two groups of States, notwithstanding the notable chairmanship of Judge Manner, rendered that goal unattainable. As the primacy of the agreement was not controversial, there was some hope at one time that by reducing the role of other criteria (equitable principles, median or equidistance line, relevant circumstances), and by saying that the agreement had to be in conformity with international law (ICNT/Rev. 2),45

43 44

45

C.P. Economides, The Contiguous Zone, Today and Tomorrow, The New Law of the Sea..., pp. 69-81, at p. 76. For the chronology of the negotiations, see Continental Shelf (Tunisia/Libyan Arab Jamahirya), Judgment, dissenting opinion of Judge Oda, I.C.J. Reports 1982, pp. 234-247 (paras. 131-147); Jagota, op. cit., pp. 165-192; Caflisch, op. cit., pp. 92-96. Doc. A/CONF.62/WP.10/Rev.2, 11 April 1980. See also the Report of the Chairman on the Work of the Negotiating Group 7, doc. A/CONF.62/L.47, pp. 2-3, paras. 4 and 7 (2).

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the text of paragraph 1 could command the support of all interested States. This optimism proved to be unfounded as the two groups continued in their efforts to affirm the equitable principles and the median or equidistance line. However, in August 1981 the two groups accepted the suggestion of the President of the Conference, T.T.B. Koh (Singapore), based on the requirement that delimitation be effected by agreement on the basis of international law. It has been added that international law, for this purpose, is to be found in Article 38 of the Statute of the International Court of Justice and that the purpose of every delimitation agreement is to achieve an equitable solution.46 16. What were the reasons for accepting the formula proposed by the President? In our view, it was the conviction of both groups of States that it was impossible to have a formula for paragraph 1 entirely favourable to one group whilst not making the delimitation provision unacceptable for the other.47 The ICNT formula48 was not acceptable for the equidistance group, and the equitable principles group protested vigorously against the Manner formula inserted in ICNT/Rev.2.49 Having reached such an impasse, and wishing to show some progress at the Conference at the time of the US policy review, the majority of States belonging to both groups accepted the vague, but for their interests apparently harmless Koh formula.50 Or as stated by Judge Oda:
It could be pointed out that Articles 74/83 of the draft convention on the Law of the Sea from a catchall provision that ought to satisfy both, and that is indeed its merit. Given, however, the difficulty of deriving any positive meaning from these provisions, it would seem that the satisfaction must be essentially of a negative kind, i.e., pleasure that the opposing school has not been expressly vindicated.51

46

47 48

49

50 51

Paragraph 1 of Article 74 and 83 reads as follows: The delimitation of the exclusive economic zone/ continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution, A/CONF.62/WP.11, 27 August 1981. Continental Shelf (Tunisia/Libyan Arab Jamahirya), Judgment, dissenting opinion of Judge Evensen, I.C.J. Reports 1982, p. 281 (para 4). The delimitation of the exclusive economic zone/continental shelf between adjacent or opposite States shall be effected by agreement in accordance with equitable principles, employing, where appropriate, the median or equidistance line, and taking account of all the relevant circumstances. A/CONF.62/WP.10. The delimitation of the exclusive economic zone/continental shelf between States with opposite or adjacent coasts shall be effected by agreement in conformity with international law. Such an agreement shall be in accordance with equitable principles, employing the median or equidistance line, where appropriate, and taking account of all circumstances prevailing in the area concerned. A/CONF.62/WP.10/Rev.2. See B.H. Oxman, The Third United Nations Conference on the Law of the Sea: The Tenth Session (1981), AJIL, Vol. 76, No. 1, 1982, pp. 1-23, at pp. 14-15. Continental Shelf (Tunisia/Libyan Arab Jamahirya), Judgment, dissenting opinion of Judge Oda, I.C.J. Reports 1982, p. 246 (para. 143).

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Be that as it may, instead of having a normative provision, we are today in possession of a more or less empty formula (Judge Gros). Some are of the opinion that the effect of this formula is a status quo in relation to the previously existing law (L. Caflisch, H. Dipla),52 but Judge Gros claims that:
All the gains represented by the legal edifice of 1958, the 1969 Judgment and the 1977 Decision, have thus been destroyed by the effect of those two articles of the 1982 Convention, which take no account of that jurisprudence and efface it by the use of an empty formula.53

In 1982 not even the International Court of Justice itself expressed a positive opinion concerning the formula contained in paragraph 1 of Articles 74 and 83:
In the new text, any indication of a specific criterion which could give guidance to the interested States in their effort to achieve an equitable solution has been excluded.54

However, when the 1981 formula became the final text of the Convention, a Chamber of the I.C.J. pointed to a more positive aspect of the same provision:
Although the text is singularly concise it serves to open the door to continuation of the development effected in this field by international case law.55

17. Though extremely concise, the final formula of paragraph 1 will obviously cause problems of interpretation; some have already been indicated in the declarations of States at the Conference or pointed out by the doctrine and international judicial decisions. Controversies relate to the particular elements constituting paragraph 1 (agreement, international law, equitable solution) as well as to the mutual relation of these elements. Agreement The meaning and content of the duty of neighbouring States to effect delimitation by agreement has recently been explained and elaborated by the International Court of Justice in the Delimitation of the Maritime Boundary in the Gulf of Maine Area case:
No maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States. Such delimitation must be sought and effected by means

52 53 54 55

Caflisch, op. cit., pp. 97-99; Dipla, op. cit., p. 221. Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, dissenting opinion of Judge Gros, I.C.J. Reports 1984, p. 365 (para. 8). See also Oxman, op. cit., pp. 14-15; Jagota, op. cit., p. 190. Continental Shelf (Tunisia/Libyan Arab Jamahirya), Judgment, I.C.J. Reports 1982, p. 49 (para. 50). Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 294 (para. 95).

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of an agreement, following negotiations conducted in good faith and with the genuine intention of achieving a positive result.56

The reproach that for-obliging States to conclude agreements on delimitation paragraph 1 is contrary to the principle of conventional freedom,57 does not take into account the ratio legis of this obligation: to prevent unilateral decisions on delimitation. One has to agree with Judge Oda, that the effect of the provision that delimitation should be effected by agreement is merely to confirm that a general rule for the conduct of interState relations is applicable to the subject of delimitation.58 In the Delimitation of the Maritime Boundary in the Gulf of Maine Area case, the I.C.J. made it clear that the principle that any delimitation must be effected by agreement between the States concerned may be executed either by the conclusion of a direct agreement or, if need be, by some alternative method, which must, however, be based on consent.59 Furthermore, in the opinion of the Court, the principle that delimitation must be effected by agreement is a principle already clearly affirmed by customary international law, a principle which is undoubtedly of general application, valid for all States and in relation to all kinds of maritime delimitation.60 International Law The meaning of the term international law as referred to in Article 38 of the Statute of the International Court of Justice should not cause major problems. Although Article 38 in its entirety has been mentioned, only its first paragraph refers to international law. Paragraph 2 deals with the power of the Court to decide ex aequo et bono, and thus is of no relevance in relation to the agreement that has to be concluded between the neighbouring States on the basis of international law.61 Besides the traditional dilemmas concerning Article 38, paragraph 1 of the Statute, in view of the role played by the I.C.J. and international arbitration in the settlement of recent cases concerning maritime boundaries, the question may be asked whether in this field the role of judicial decisions amounts to something more than a subsidiary means for the determination of rules of law.62 The answer should be negative,63

56 57 58 59 60 61 62

63

Ibid., p. 299 (para. 112); see also p. 292 (para. 87). See Caflisch, op. cit., p. 100; Dipla, op. cit., pp. 221 and 225. Continental Shelf (Tunisia/Libyan Arab Jamahirya), Judgment, dissenting opinion of Judge Oda, I.C.J. Reports 1982, p. 246 (para 144). I.C.J. Reports 1984, p. 292 (para. 89). Ibid., pp. 292-293 (para. 90). See Caflisch, op. cit., pp. 102-103; Evensen, op. cit., p. 118. Treves claims that the reference to international law denotes, in the first place the body of criteria resulting from the entirety of the agreements on delimitation and of international judicial decisions..., Treves, op. cit., p. 34. See also Caflisch, op. cit., p. 97 and note (171). See Evensen, op. cit., pp. 117-118. The I.C.J., called into the Gulf of Maine case to ascertain the principles and rules of international law which govern the subject of maritime delimitation, referred only to conventions and international custom (Art. 38, para. 1(a) and (b) of its Statute), I.C.J. Reports 1984, p. 290 (para. 83). One should agree with Caflisch that the general principles of law recognized by civilized nations (Art.

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although it is only the empty and vague formula of paragraph 1 of Articles 74 and 83 of the LOS Convention that opens the door to a creative interpretation of the existing law and offers the possibility of influencing the development of customary law. More controversial will be the content of applicable international law (treaties and custom) referred to by Article 38 of the Statute. S.P. Jagota studied a sample of 75 agreements on maritime boundaries whose provisions will be a source of general or particular international law binding on the parties to those treaties; their provisions may be evidence of existing customary law, or may crystalise the emerging custom on the point, or may be the source of development of custom in that direction.64 His analysis showed that in 65 agreements the boundary line was a median or equidistance line (true, simplified or modified), but he did not draw any conclusion concerning customary law.65 Anyway, there will be fewer problems in finding international rules on the delimitation of the continental shelf a problem dealt with extensively by State practice and international tribunals than rules concerning the delimitation of the exclusive economic zone, a new problem.66 Thus, in the opinion of L. Caflisch and H. Dipla, Article 6 of the 1958 Convention on the Continental Shelf will continue to be applied between States party to that Convention, an assertion strengthened by Article 311 of the LOS Convention, according to which the new Convention prevails over the Geneva Conventions, but does not terminate them (para. 1), and the provision that Article 311 does not affect international agreements expressly permitted or preserved by other articles of this Convention (para. 5).67 One of the possible interpretations of the empty formula of paragraph 1 in relation to applicable international law was indicated by A. Aguilar at the Eleventh Session of the Conference, and was one of the reasons for the negative vote cast by Venezuela in relation to the LOS Convention:
In the absence, then, of particular conventions the rules expressly recognized in general international conventions by the States parties to a dispute would necessarily apply, and, if those conventions contained a provision similar to article 15 of the draft Convention, it could be argued that, for lack of any other substantive provision, the criterion established in that regulation would apply by analogy not only to the delimitation of the territorial sea but also to the delimitation of the exclusive economic zone and the continental shelf.68

64 65 66 67 68

38, para. 1(c) of the Statute) cannot play an important role in this field; Caflisch, op. cit., note (171) at p. 97. Jagota, op. cit., p. 104. Ibid., p. 131. Brown, op. cit., pp. 181-182; Caflisch, op. cit., 98-99; Dipla, op. cit., pp. 224-225. Caflisch, op. cit., pp. 97 (and note (172)) and 104; Dipla, op. cit., p. 220. Doc. A/CONF.62/SR.158 (Provisional), p. 5.

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Equitable Solution The goal of delimitation effected by agreement on the basis of international law is to achieve an equitable solution. Thus, as the International Court of Justice warned, it is not a question of applying any existing international rule, but only those which are appropriate to bring about an equitable result....69 The vagueness of the term equitable solution is best expressed by Judge Jimnez de Archaga in his separate opinion on the Judgment of the I.C.J. in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case:
This text does not place geographical limits nor does it qualify in any other way the equitable solution which is to be achieved of a dispute concerning the delimitation of the continental shelf between States with opposite or adjacent coasts.70

18. More controversial than the scope of the particular elements is their mutual relation within the formula contained in paragraph 1 of Articles 74 and 83. The content of all the provisions on delimitation in this very Convention and those in the 1958 Geneva Convention, as well as the negotiating record of paragraph 1, clearly show that priority is to be given to the agreement. This being so, the only limit to the contractual freedom of the States concerned in stipulating an agreement could be a jus cogens rule imposing some criteria of delimitation. As judicial practice and UNCLOS III have proved, there is no such jus cogens in the field of delimitation of maritime boundaries. Thus, any agreement concluded between the States concerned, and valid in accordance with the law of treaties, satisfies the requirements of paragraph 1. The existence of international law, as referred to in Article 38 of the Statute of the International Court of Justice and the duty to achieve an equitable solution will surely be taken into account in the negotiations of such an agreement, but whatever the relation of the final content of the agreement with applicable international rules and equity, the agreement will be valid. This is true also for an agreement the States involved in a delimitation dispute should reach after a conciliation commission has presented its report, although they have an obligation to negotiate an agreement on the basis of that report (Art. 298, para. 1 /a//ii/). The report should help them in their negotiations; it provides the basis for an agreement, but the States concerned are free to reach the agreement on quite different terms. If the States concerned are unable to reach an agreement, and the case is, in accordance with paragraph 2 of Articles 74 and 83, brought before international courts, tribunals or commissions, the content of paragraph 1 has to be interpreted in a different way.

69 70

I.C.J. Reports 1982, p. 49 (para. 50). Ibid., p. 104 (para. 17). See also the dissenting opinion of Judge Oda, Ibid., pp. 246-247 (para. 144) and Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, dissenting opinion of Judge Gros, I.C.J. Reports 1984, p. 377 (para. 27).

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101

Contrary to the States themselves, the international bodies are obliged to apply to the dispute international law, as referred to in Article 38 of the Statute of the International Court of Justice (except if they are asked to decide ex aequo et bono). In applying international law, they too shall have to achieve an equitable solution.71 19. The wording of paragraph 1 of Articles 74 and 83 being identical, it is often asked whether the boundary of the exclusive economic zones and the continental shelves of two neighbouring States should necessarily coincide. As the States concerned are free to delimit their maritime zones by agreement, they are entitled to determine a separate boundary for the water column from the one agreed upon for the sea-bed, and in some instances there will exist justified reasons for doing so.72 If there are two separate boundaries, the exclusive economic zone (consisting of the sea-bed and its subsoil, the superjacent waters and the air space) will be divided and the continental shelf of one State covered by the waters belonging to the exclusive economic zone of the other State(s). Different boundaries for the water column and the sea-bed in some cases already exist,73 and by requesting the I.C.J. to determine the course of the single maritime boundary that divides the continental shelf and fisheries zones in the Gulf of Maine, Canada and the United States have shown that they did not exclude the possibility of the Court determining two different boundaries.74 In the case of the Island of Jan Mayen the Conciliation Commission suggested the establishment of a sea-bed zone of joint exploitation for Norway and Iceland, part of which is situated under the exclusive economic zone of Iceland as determined by the 1980 Agreement of the two States.75 Although respecting the freedom of States to negotiate different boundaries, and the occasionally serious reasons for doing so, we share the view of those who advocate the delimitation of a single boundary for both the exclusive economic zone and the continental

71

72 73

74 75

K.M. Ioannu, Some Preliminary Remarks on Equity in the 1982 Convention on the Law of the Sea, The New law of the Sea..., pp. 97-106, at p. 104. As paragraph 1 of Article 74 and 83 refers to Article 38 of the I.C.J. Statute in general, Degan indicates the possibility that an international court or tribunal, asked to decide a case and not finding adequate rules based on the sources of international law (para. 1 of Art. 38), may decide a case ex aequo et bono, V.- . Degan, Kriteriji razgranicenja morskih prostranstava izmedudrava, Uporedno pravo i pomorska kupoprodaja, No. 100, 1983, pp. 43-84, at pp. 79-80. See also Caflisch, op. cit., p. 101, Dipla, op. cit., 221-222. See Evensen, op. cit., p. 145; Degan, op. cit., p. 80. Treaty Between the Independent State of Papua New Guinea and Australia Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, including the Area Known as Torres Strait, and Related Matters, Sydney, December 18, 1978, ILM, Vol. 18, No. 2, 1979, p. 291. Article II of the Special Agreement of 29 March 1979, I.C.J. Reports 1984, p. 253. See also Treves, op. cit., p. 15. Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Commission on the Continental Shelf area Between Iceland and Jan Mayen, ILM, Vol. 20, No. 4, 1981, p. 797. See also R.R. Churcill, Maritime delimitation in the Jan Mayen area, Marine Policy, Vol. 9, No. 1, 1985, pp. 16-38.

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shelf.76 The result of different boundaries could be, for example, an artificial island, structure or installation fixed in the sea-bed and its subsoil under the jurisdiction of one State, which will have to operate under the control of another State having jurisdiction over the water column. It is equaly difficult to conceive the distribution of jurisdiction of the neighbouring States in relations to the protection of the marine environment or scientific research, as well as in regard to sovereign rights to economic exploration and exploitation activities.77 20. Although the same provision applies to the delimitation of both opposite and adjacent coasts, different international rules can be applied in the boundary delimitation of States with adjacent and opposite coasts. Paragraph 1 of Articles 74 and 83 is a flexible framework permitting the application of different solutions to different kinds of situations; extreme flexibility and vagueness are the main characteristics of this provision.
PARAGRAPH

2 SETTLEMENT OF DISPUTES

21. Since the first draft the ISNT this paragraph has remained unchanged. The purpose of this provision is to clarify that problems in reaching an agreement on delimitation after a reasonable period of time become disputes concerning the interpretation or application of the Convention which have to be resolved by applying the procedures provided for in Part XV of the Convention. It is possible that the explicit reference to the settlement of disputes procedures in relation to the delimitation of the exclusive economic zone and the continental shelf, and the absence of such a provision concerning the delimitation of the territorial sea (Art. 15), cause different interpretations and problems in the application of Part XV to delimitation disputes.78 The condition of a lapse of a reasonable period of time should not cause problems of interpretation: as the first procedure for the settlement of any dispute under Part XV is an exchange of views between the parties (Art. 283), there is no substantive difference between the resort to that dispute settlement procedure and the initial contacts between the parties, the purpose of which is the conclusion of the delimitation agreement. As has already been stated. It is only in the application of the procedures for the settlement of a disputed delimitation, rather than in the conclusion of agreements between the concerned States, that international law and equitable solution, although not defined in the Convention itself, shall play a major role.

76

77 78

See Continental Shelf (Tunisia/Libyan Arab Jamahirya), Judgment, I.C.J. Reports 1982, dissenting opinion of Judge Jimnez de Archaga, pp. 101-102 (para. 56), dissenting opinion of Judge Evensen, pp. 288 (para. 10) and 319 (Conclusions). See also Caflisch, op. cit., pp. 99-100; Treves, op. cit., p. 34. See Caflisch, op. cit., p. 100. Ibid., pp. 109-110.

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PARAGRAPH

3 PROVISIONAL ARRANGEMENTS

22. Contrary to paragraph 2, the content of paragraph 3 on interim measures was changed several times. Paragraph 3 of the ISNT contained a rule entitling States, pending agreement, to extend their exclusive economic zones (continental shelves) to the median or equidistance line. The concept of paragraph 3 was changed in the RSNT: instead of supplying a criterion for the provisional delimitation, it obliged the States concerned, pending agreement or settlement, to make provisional arrangements. In the drawing up of such arrangements States were required to take into account the criteria for final delimitation enumerated in paragraph 1 of Articles 62 and 71 of the RSNT. The final text of paragraph 3 was already inserted in ICNT /Revision 2, in April 1980. Under this provision, States have two obligations in the transitional period pending agreement: to make every effort to enter into provisional arrangements of a practical nature, and not to jeopardize or hamper the reaching of the final settlement. Any reference to delimitation criteria has been deleted, and the statement made that provisional arrangements shall be without prejudice to the final delimitation. The final text of paragraph 3 can be better understood with the help of the statements and reports of the Chairman of Negotiating Group 779 who suggested the compromise, albeit through a somewhat clumsy and vague formula.80 23. The term provisional arrangements should be interpreted as meaning arrangements agreed upon between the States concerned, to regulate their economic and other activities. According to some delegations, such arrangements may contain the establishment of so-called white or grey zones.81 As paragraph 3 of Articles 74 and 83 of the ICNT provided that States concerned shall make provisional arrangements, Judge Manner was of the opinion that this formulation was not clear enough as it seemed to cover both unilateral and agreed arrangements.82 The final formulation is more specific. It is based on a joint proposal by India, Iraq and Morocco, defining provisional arrangements as of mutual restraint or mutual accomodation.83 Consequently, the final text speaks of making efforts to enter into arrangements, which cannot be interpreted as meaning unilateral arrangements. The requirements that provisional arrangements shall not jeopardize or hamper the reaching of the final settlement and that they shall be without prejudice to the final delimitation should not, in our view, be understood as limiting the freedom of the States concerned in choosing the content of such arrangements. The main consequence of the

79 80 81 82 83

Doc. NG7/21, 17 May 1978; NG7/23, 12 September 1978; NG7/24, 14 September 1978; NG7/26, 26 March 1979; NG7/27, 27 March 1979 and NG7/39, 20 April 1979. Doc. NG7/45, 22 August 1979, p. 3 and A/CONF.62/L.47, 24 March 1980, Annex. Doc. NG7/21, p. 2; NG7/23; NG7/26, pp. 2-3. Doc. NG7/26, p. 3. Doc. NG7/32, 5 April 1979.

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quoted phrases is that neither of the parties is entitled to base its claims, in the final delimitation, on such arrangements. As some delegations advocated the inclusion of a provision obliging States to agree on provisional arrangements, and others were in favour of a rule only encouraging the conclusion of such arrangements,84 Judge Manner had to propose a compromise solution. While this formula (shall make every effort) would in some municipal laws represent a true legal obligation, in international law its legal effects are dubious. 24. On the basis of paragraph 3, provisional arrangements should be entered into throughout the whole delimitation process which, in some cases, may consist of several different stages. States should enter into provisional arrangements: a) during the initial negotiations of a delimitation agreement; b) pending the report of the conciliation commission; c) during the negotiations of an agreement on the basis of the report. If the delimitation dispute has been submitted to a procedure entailing binding decision, the role of provisional arrangements under paragraph 3 will in principle be substituted by provisional measures which a court or tribunal may prescribe (Art. 290).85 However, any court or tribunal is entitled to prescribe a provisional arrangement under paragraph 3 as an appropriate provisional measure.
PARAGRAPH

4 PREVIOUS AGREEMENTS

25. The provision contained in this paragraph is probably one of those which will cause problems of interpretation and application, a consequence not only of its vague content, but also of the fact that this provision was neglected in the UNCLOS III negotiations. This provision has its origin in a working paper containing certain basic principles on an economic zone and on delimitation submitted by the delegations from Australia and Norway to the Sea-Bed Committee.86 Paragraph 2 of that paper, among other rules on delimitation, contained the following provision:
(b) Where there is an agreement between the States concerned, questions relating to the delimitation of their (economic zones patrimonial seas) and their sea-bed areas shall be determined in accordance with the provisions of that agreement.

Although originally proposed in a document on the rgime of the economic zone, this provision was in the Main trends included only in the provisions on the delimitation

84 85 86

NG7/26, p. 2. Caflisch, op. cit., p. 112. Doc. A/AC.138/SC.II/L.36, Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction. Vol. III, General Assembly, Official Records: Twenty-eighth Session, Supplement No. 21 (A/9021), 1973, pp. 77-78.

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of the continental shelf (Provision 83).87 In better concordance with the Australo-Norwegian suggestion was the solution of R. Galindo-Pohl, Chairman of the Second Committee in 1975 included in the article of the ISNT dealing with the delimitation of the exclusive economic zone (Art. 61, para. 6) as well as in the article on the delimitation of the continental shelf (Art. 70, para. 6).88 These two ISNT paragraphs did not undergo any change in subsequent drafts and became paragraph 4 of Articles 74 and 83 of the LOS Convention.89 26. The main problem of this provision is the determination of what is really meant by the term agreement in force between the States concerned. Presumably, we run no risk if we conclude that the aim of the drafters was an agreement concerning delimitation. But what agreement? Two answers are possible, though neither are properly satisfactory. a) Taking into account the structure and the wording of Articles 74 and 83, it may seem logical at first glance that the agreement in force refers to the agreement mentioned in paragraphs 1-3 of each of these Articles. But the consequence of such an interpretation would deprive paragraph 4 of any sound meaning. It would in fact suggest that the purpose of this provision is to state that questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of the agreement delimiting this very continental shelf. If this interpretation were correct, it would be very difficult to find in this provision anything more than a mere pleonasm, as there does not seem to be any real difference between delimitation and questions relating to delimitation. Perhaps this was to be a confirmation of the duty of States to perform delimitation agreements in good faith and in their entirety. But, was it necessary to reaffirm here these general principles of the law of treaties? If the wish of the drafters was to say something more about the consequences of the delimitation agreement for the relations of States with opposite or adjacent coasts (e.g. concerning their co-operation), they should have done so in much clearer terms. b) According to the second interpretation, the agreement in force is not that mentioned in paragraph 1, but another on the delimitation of maritime zones in force between the same two States.90 Such an interpretation could be based on the original proposal for that provision. Namely, in suggesting provisions concerning the delimitation of a new zone of the waters, the sea-bed and the subsoil thereof,91 Australia and Norway proposed delimitation criteria which in the 1958 Geneva Conventions provide for the

87 88 89

90 91

See provisions 82-84 and 116-117 in doc. A/CONF.62/C.2/WP.1. A/CONF.62/WP.8/Part II. It reads: Where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone/continental shelf shall be determined in accordance with the provisions of that agreement. Degan is of the opinion that Article 74, paragraph 4 had in view the already existing agreements on the delimitation of the continental shelf, Degan, op. cit., pp. 72 and 80. Paragraph 1(b) of doc. A/AC.138/SC.II/L.36.

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delimitation of the territorial sea and the continental shelf.92 Thus, it is plausible that they suggested a concordance between all the agreements on the delimitation of maritime zones between two neighbouring States. However, the situation regarding the delimitation articles of the LOS Convention is different from the one envisaged by the Australo-Norwegian working paper. While the criteria for the delimitation of the territorial sea (Art. 15) are the same as in the 1958 Convention, in relation to the continental shelf a new formula has been adopted (Art. 83, para. 1). The same new formula has been adopted also for the new rgime the exclusive economic zone (Art. 74, para. 1). Nevertheless, in the majority of cases it would be natural that new agreements on the delimitation of the exclusive economic zone or the continental shelf are concluded in accordance with existing agreements on the delimitation of other maritime zones between the same opposite or adjacent States. Thus, on the basis of this second interpretation, paragraph 4 could serve a useful purpose in facilitating the delimitation of opposite or adjacent States between which a delimitation agreement already exists.

4.

SETTLEMENT OF DELIMITATION DISPUTES

27. The inclusion of an obligatory system of disputes settlement in the LOS Convention is one of the major innovations and improvements of the law of the sea attained at UNCLOS III. However, in relation to disputes concerning sea boundary delimitations, the scope of this innovation has been radically reduced as a concession to States opposed to any obligatory procedure of dispute settlement.93 Disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitations of the territorial sea, the exclusive economic zone and the continental shelf are one of the categories of disputes in relation to which States may make exceptions to the applicability of compulsory procedures entailing binding decisions (Art. 298). A State may declare that it does not accept any one, or more, of such procedures provided for in Section 2 of Part XV (International Tribunal for the Law of the Sea, International Court of Justice, arbitral tribunal, special arbitral tribunal). 28. What then remains of the Conventions settlement of disputes system to be applied to boundary delimitation disputes in relation to States which have made a declaration excluding all the procedures provided for in Section 2? First of all, States cannot exclude the application of Section 1 of Part XV (which includes the obligation to exchange views between parties, and the application of conciliation). Furthermore, by excluding the

92 93

Paragraph 2(d) of doc. A/AC.138/SC.II/L.36. Caflisch, op. cit., p. 111; V. Ibler, Sistem mirnog rjeavanja sporova, Prinosi za poredbeno proucavanje prava i medunarodno pravo, Vol. 15, No. 17, 1982, pp. 260-281, at pp. 274-275.

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application of Section 2, a State automatically thereby accepts the submission of disputes to compulsory conciliation: any party to a dispute with a State which has made a declaration is entitled to submit the matter to conciliation under Annex V, Section 2 to the Convention. However, obligatory conciliation is waived when disputes have arisen prior to the entry into force of the Convention and when they necessarily involve the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory (Art. 298, para. 1/a//i/). Although obligatory conciliation does not entail a binding decision, obligations of States are the report of the conciliation commission are twofold: a) they have to negotiate an agreement on the basis of that report, and b) if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree (Art. 298, para. 1/a//ii/). These two obligations are defined by E.D. Brown as pactum de contrahendo.94 There is another limitation to the whole procedure envisaged for sea boundary disputes: it does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties (Art. 298, para. 2/a//iii/). 29. Declarations excluding the application of procedures provided for in Section 2 may be made at the time of signature, ratification or accession or at any time thereafter (Art. 298, para. 1).95 However, it seems that the submission of a dispute to a court or tribunal marks the end of the period in which the possibility of making a declaration existed:
A new declaration, or the withdrawal of a declaration, does not in any way affect proceedings pending before a court or tribunal in accordance with this article, unless the parties otherwise agree. (Art. 298, para. 5)

The main problem which may be encountered by the conciliation commission in applying the above provisions relates to their temporal scope.96 The obligation to submit disputes to conciliation applies only when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties (Art. 298, para. 1/a/i/). It is unclear: a) for whom

94 95

96

Brown, op. cit., p. 181. Several States made declarations excluding the application of all the procedures entailing binding decisions: Byelorussian SSR, German Democratic Republic, Ukrainian SSR, USSR upon signature, and Egypt upon ratification; Law of the Sea Bulletin, Office of the Special Representative of the Secretary-General for the Law of the Sea, No. 1, September 1983, pp. 30-31; No. 3, March 1984, p. 15. Brown, op. cit., p. 181.

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the Convention has to be in force, b) how the date when the dispute may be considered to have arisen is to be determined, and c) what a reasonable period of time is.

5.

CONCLUSIONS

30. Any effort to evaluate the result of UNCLOS III concerning sea boundary delimitation is confronted with the problem of a criterion for such an evaluation. Once the Convention enters into force and more agreements on delimitation are concluded and judicial decisions rendered, an evaluation of the impact of the Convention could be more reliable. For the time being it is only possible to analyse to what extent the new provisions on sea boundary delimitation correspond to the intention of the Conference to achieve codification and progressive development of the law of the sea (seventh operative paragraph of the Preamble to the Convention). On the basis of the above analysis, the results of the efforts of the Conference in this field can be summarized as follows: a) The provisions on the delimitation of the territorial sea, with minor stylistic changes, reproduce the rules laid down in the 1958 Convention on the Territorial Sea and the Contiguous Zone. b) The omission of any rule on the delimitation of the contiguous zone between States with opposite or adjacent coasts has opened the way to different interpretations concerning the reasons and consequences of such a departure from the 1958 Geneva codification. c) Instead of establishing more precise criteria for the delimitation of the continental shelf on the basis of experience in the application of the Geneva Convention on the Continental Shelf, UNCLOS III has produced an empty formula referring to existing international law, which can be of little help to States and international tribunals. d) The same formula as for the continental shelf has been adopted for the delimitation of the new maritime zone under the jurisdiction of the coastal States the exclusive economic zone. The uselessness of such a solution here is even more apparent, as the LOS Convention is the first multilateral international treaty providing rules on the exclusive economic zone. For this reason reliable criteria for all future delimitations of this zone would have been invaluable. e) During the transitional period pending agreement on the delimitation of the exclusive economic zone and the continental shelf, States concerned are invited to make every effort to enter into provisional arrangements of a practical nature. The effectiveness of this provision is doubtful and one should not regret that it has not been duplicated in the delimitation of the territorial sea. f) The rule concerning the determination of the questions relating to the delimitation of the exclusive economic zone and the continental shelf in accordance with previous

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agreements will probably, due to its vagueness, be a source of future delimitation disputes rather than an asset in forthcoming delimitations. g) Disputes concerning the interpretation or application of the provisions relating to sea boundary delimitations are one of the categories of disputes in respect to which States may exclude the application of compulsory procedures entailing binding decisions. Taking into account the characteristics of the Conventions substantive provisions on delimitation, it is doubtful whether it would have been wiser to force States to adopt the integral disputes settlement system for disputes concerning delimitation too. Do these elements of the delimitation package deal deserve to be defined as codification and progressive development of the law of the sea? From a technical point of view all these provisions leave much to be desired and, to some extent, even create confusion in regard to applicable international law by reducing and eliminating some of the existing norms (delimitation of the contiguous zone and the continental shelf). Nevertheless, they were the only attainable result of the Conferences efforts to resolve this hard-core issue; being the result of the political will of States participating at UNCLOS III (with few exceptions), they represent codification and progressive development of the law of the sea, although not very successfully. This being so, States will have to employ all their tolerance and political wisdom in order to avoid any damaging effects resulting from the meagre results of UNCLOS III in the field of sea boundary delimitation.

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V NATURAL RESOURCES OF THE SEA

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Chapter 8

THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA AND THE PROTECTION OF THE LIVING RESOURCES OF THE SEA*
1. The codification and the progressive development of international rules on the protection and preservation of the marine environment are one of the major achievements of the Third United Nations Conference on the Law of the Sea (UNCLOS III). These rules are mainly contained in Part XII of the new United Nations Convention on the Law of the Sea, opened for signature at Montego Bay (Jamaica), on 10 December 1982. The purpose of this short paper is not to analyse all the Conventions provisions on the protection and preservation of the marine environment, but only those relating to the protection of the living resources of the sea. 2. Some of the general principles on the protection and preservation of the marine environment, contained in Section 1 of Part XII, do not relate only to the fight against the pollution of the seas. Thus, the general obligation of States to protect and preserve the marine environment, codified in art. 192, is applicable to all activities in the marine environment; the same can be claimed for the principle embodied in art. 193:
States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.

Art. 196, para. 1 goes beyond the definition of pollution contained in art. 1, para. 1(4) of the Convention. Namely States have been obliged to take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control, or the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant and harmful changes thereto. Finally, art. 194, para. 5 is also worth mentioning in this context. The drafters of the Convention have stated that the measures taken in order to prevent, reduce or control pollution shall Include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.

First published in Yugoslavia: Legal Framework, Social, Political and Economic Aspects, (Josip Kregar, Ivan imonovic, eds.), Narodne novine, Zagreb, 1989. The present text represents a lecture its author was invited to deliver at a meeting of the European Council of Environmental Law.

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3. Having determined as our main task the analysis of the Conventions provisions on the protection of marine life, we have first of all to review all the various regimes at sea, in which the rights of coastal and all other States have been stated in different terms. If the solutions reached at UNCLOS III are compared with previously existing customary and conventional law, we notice that many changes and innovations have been adopted in relation to our topic. Some of them can be qualified as a more precise formulation and systematization of existing customary law, which means codification, while others represent the further development or revision of the existing rules, thus the progressive development of that part of the law of the sea. 4. As with the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, the new overall Convention on the Law of the Sea does not contain substantial rules on the regime of internal waters. This area is mentioned only incidentaly, mainly for the purpose of its delimitation along with the territorial sea. That is why there exist no specific provisions in the new Convention on fishing or the protection of natural resources in internal waters, rightfully deplored by an IUCN study, as many parts of internal waters are of primary biological importance for certain species. However, an interesting new development should be indicated: in the framework of the new legal regime of the exclusive economic zone (EEZ), specific provisions for the conservation and management of anadromous stocks (art. 66) and catadromous species (art. 67) have been adopted. We shall deal with these provisions in detail later, in the context of the EEZ regime, but it should be stressed here that the envisaged system of management of these species applies not only to the EEZ, but to all waters landward of the outer limit of the exclusive economic zone, which means also to the territorial seas and the internal waters. As the primary interest in and responsibility for anadromous stocks has been recognized by the States of origin of such stocks, the whole system of rules established in relation to anadromous stocks applies even beyond the sea areas; it includes rivers in which anadromous stocks originate (art. 66, para. 1). 5. In many aspects the provisions of the new Convention regulating the regime of the territorial sea further develop the existing law, elaborating in more detail upon the 1958 conventional provisions or codifying customary law as it has developed after the Geneva codification. The only provision dealing with fishery in the Geneva Convention on the Territorial Sea and the Contiguous Zone is art. 14, para. 5 which accords to the coastal State the right to make laws and regulations in order to prevent foreign fishing vessels from fishing in its territorial sea. In cases of non-observance of such rules and regulations, the passage shall not be considered innocent. The idea of the 1958 Convention has been taken over, redrafted and somewhat broadened in two different provisions of the new Convention (art. 19, para. 2i and art. 21, para. 1e), but now it has expressly provided for the right of the coastal State to adopt rules and regulations in respect of the conservation of the

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living resources of the sea and the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof (art. 21, para. 1d and 1f). It is the duty of the coastal State to give due publicity to all such laws and regulations, and foreign ships exercising the right of innocent passage through the territorial sea must comply with such laws and regulations (art. 22, para. 3 and 4). Although thus supplemented (and extended now to 12 nautical miles) the regime of the territorial sea has not been changed in its fundamental elements in relation to the marine life: the exploration, exploitation, conservation and management of the living resources of the sea are under the sovereignty of the coastal State. 6. The new regime established for straits used for international navigation the transit passage regime will mainly be applied to territorial waters within straits, although exceptionally areas of internal waters, exclusive economic zones or even of the high seas may be part of the straits in which transit passage applies (art. 35-37). Although basically all these areas retain their original status (art. 35), the State bordering a strait may adopt rules and regulations relating to the transit passage through the straits with respect to fishing vessels, the prevention of fishing, including the stowage of fishing gear (art. 42, para 1c). 7. The new Convention includes, besides the internal waters and the territorial sea, a new area under the sovereignty of coastal States the archipelagic waters of archipelagic States. For navigation through archipelagic waters foreign ships enjoy either the right of innocent passage (the same regime they have in the territorial sea) or the right of archipelagic sea lanes passage. The archipelagic State has the same right to adopt laws and regulations relating to archipelagic sea lanes passage with respect to fishing vessels as in the case of transit passage through straits (art. 54). There is a further provision on fishing in archipelagic waters. Archipelagic States are obliged to respect existing agreements with other States and they have to recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters. Nevertheless, the Convention opens the door for the restriction and extinction of such historic rights. They cannot be transfered to or shared with third States or their nationals, and at the request of any of the States concerned the terms and conditions for the exercise of such rights and activities, including the nature, the extent and the areas to which they apply, shall, ..., be regulated by bilateral agreements between them (art. 51, para. 1). 8. This brief review of the provisions concerning the living resources in sea areas under the sovereignty of the coastal State shows that the provisions of the Convention on the Law of the Sea deal mainly with the right of coastal States to adopt laws and regulations in order to prevent the fishing activities of foreign fishing ships, and, only in relation to innocent passage in the territorial sea has the right of coastal States to also legislate in respect of the conservation of the living resources of the sea been pointed

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out. Nowhere has any duty of coastal States in respect to resource management and conservation been mentioned. The rights and duties of States concerning the management and conservation of marine life have become the subject of intense international regulation in areas where coastal States have only (functional) sovereign rights in respect to living resources and not (territorial) sovereignty, and in areas beyond the limits of national jurisdiction. 9. The establishment of the exclusive economic zone represents one of the main innovations in the law of the sea agreed upon at UNCLOS III. There are solid reasons for the conclusion that this new regime already forms part of the body of customary law of the sea. More than eighty States throughout the world established an exclusive economic zone after the drafting of the basic principles of the regime at the Conference; these principles are being copied in the majority of national laws on the economic zone. Some coastal States only proclaimed temporarily exclusive fishing zones, but also within the 200 miles limit. The majority of States having a territorial sea extending to 200 miles do not claim more rights in this area than permitted by the EEZ regime. Specialized international agencies plan their activities taking into account the existence of the regime of the EEZ (UNEP, FAO). Scholars from various States and representing different concepts of the law of the sea agree on the adoption of the EEZ regime in general international law. Such a conclusion concerning the regime of the EEZ necessarily means that all the basic principles constituting this regime, namely all fundamental norms concerning the rights and duties of coastal and other States, are also part of customary law. It would be more difficult to envisage the position of the international community in regard to the more detailed rules of the EEZ regime if the Convention did not enter into force or were accepted by only a small number of States. 10. Having the sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non living, the coastal State determines the allowable catch of the living resources of its EEZ and its capacity to harvest the living resources of the EEZ. When it does not have the capacity to harvest the entire allowable catch, it shall give other States access to the surplus of the allowable catch. It is the duty of coastal States to promote the objective of optimum utilization of the living resources in the EEZ, ensuring that their maintenance is not endangered by over-exploitation. To this end, the coastal State has to take proper conservation and management measures, taking into account the best scientific evidence available to it, and co-operating, as appropriate, with competent subregional, regional or global international organizations. Among such measures, the Convention envisages those designated to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by the relevant environmental and economic factors. The list of factors mentioned in the Convention is not exhaustive; among them can be qualified as environmental the interdependence of stocks and any generally

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recommended international minimum standards, whether subregional, regional or global (art. 61, para. 3). The interdependence factor has been separately elaborated (art. 61, para. 4):
In taking such measures the coastal State shall take 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.

All the States concerned, including States whose nationals are allowed to fish in the EEZ have to contribute and exchange, on a regular basis, data relevant to the conservation of fish stocks. Such an exchange shall be carried out through competent international organizations, whether subregional, regional or global. 11. The Convention contains special provisions concerning the so-called straddling stocks (art. 63. para. 1). For the situation where the same stock or stocks of associated species occur within the exclusive economic zones, of two or more coastal States, the Convention provides for the duty of these States to seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation and development of such stocks. Another provision deals with a stock or stocks of associated species occuring both within the EEZ and in an area beyond and adjacent to the zone. In such a case, the obligation of the coastal State and the States fishing for such stocks in the adjacent area is again only to seek to agree upon the necessary conservation measures in the adjacent areas. Canada and Argentina attempted to amend this provision during several sessions of the Conference, suggesting the permanent or provisional application beyond the EEZ of the measures applied by the coastal State within the zone, in cases where the States concerned are not able to reach agreement on common measures. Because of the opposition of some States having enormous long-distance fishing fleets, even modest changes in article 63, para. 2 were not possible. 12. The EEZ regime contains special provisions concerning the exploitation and conservation of particular species: highly migratory species, marine mammals, anadromous stocks and catadromous species. As far as the highly migratory species are concerned, the integral regime of the EEZ is applicable; in addition to that, the coastal and other States whose nationals fish in the region for the highly migratory species are obliged to co-operate with a view to ensuring conservation and promoting the objective of optimum utilization of species throughout the region, both within and beyond the EEZ. The co-operation can be direct or through appropriate international organizations; if such organizations do not exist for a region, the States concerned shall co-operate to establish such an organization and participate in its work (art. 64). Annex I to the Convention contains a list of 17 highly migratory species. In relation to marine mammals, the Convention underlines the right of a coastal

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State or the competence of an international organization, as appropriate, to prohibit, limit or regulate their exploitation more strictly than provided for by the general provisions on the EEZ regime, which means that the coastal States do not have to promote the objective or their optimum utilization, as in respect of the other living resources of the EEZ. Art. 65 also provides for the co-operation of States with a view to the conservation of marine mammals; in the case of cetaceans, co-operation through the appropriate international organizations for their conservation, management and study is desirable. The Convention has vested the primary interest in and responsibility for anadromous stocks in those States in whose rivers anadromous stocks originate. The State of origin ensures their conservation by the establishment of appropriate regulatory measures for fishing in all the waters landward of the outer limits of its EEZ. This State may, after consultations with other States fishing these stocks establish total allowable catches for stocks originating in its rivers. In principle, fishing for anadromous stocks is conducted only in those waters landward of the outer limit of EEZ. Fishing beyond the outer limits of the EEZ may be permitted in order not to cause economic dislocation to some third States. In such cases, as well as in cases where anadromous stocks migrate through the waters landward of the outer limits of the EEZ of a State other than a State of origin, these States shall co-operate with the State of origin with regard to the conservation and management of such stocks. The management of catadromous species is the responsibility of the coastal State in whose waters these species spend the greater part of their life cycle; those States have to ensure the ingress and egress of migratoring fish. Harvesting of catadromous species shall be conducted only in waters landward of the outer limits of the EEZ and it is subject to the relevant provisions of regimes situated landward of that limit (internal waters, territorial sea, EEZ). In cases where catadromous fish migrate through the EEZ of more than one State, these States shall conclude agreements on their rational management, including harvesting, taking into account the responsibilities of the State which, according to the Convention, has the main responsibility for the catadromous species. 13. The sovereign rights of the coastal State over the natural resources of the seabed and subsoil beyond the outer limit of the territorial sea embrace the living as well as the non-living resources of the continental shelf, now extended to a preposterous distance from the coast. The new definition of the continental shelf comprises not only the seabed of the continental margin, but also submarine areas to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance (art. 76, para. 1). Thus, the sea-bed and the subsoil of the submarine areas to a distance of 200 miles from the baselines are submitted to both the regime of the EEZ and the regime of the continental shelf. The dilema caused by such an overlapping of the two regimes is resolved, at least as concerns the rights of the coastal States, by the provision of art. 56, para. 3, saying that the rights set out in this article with respect to the sea-bed and subsoil shall

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be exercised in accordance with Part VI. As Part VI contains provisions on the continental shelf, the consequence of art. 56, para. 3 is the non-applicability of all the provisions on management, exploration, exploitation and conservation of the living resources of the EEZ, and the exclusive application of the continental shelf regime to the sea-bed and subsoil up to 200 miles, in relation to the living resources as well. As far as the content of the continental shelf rules on living resources is concerned, nothing has been changed in comparison with the 1958 Convention. The sovereign rights for the purpose of exploring and exploiting living resources relate to the so-called sedentary species. Although there was much criticism expressed in relation to the 1958 Conventions definition (art. 2, para. 4), the same definition was adopted in the new Convention, and, unfortunately, there is no list of sedentary species included in the Convention. Contrary to the split regime in relation to the exploitation of the non-living resources of the continental shelf (art. 82), there is no obligation upon the coastal State to make payments or contributions in kind in respect of the exploitation of the living resources of the continental shelf beyond 200 miles. 14. The establishment of the EEZ has not only reduced the total surface of the high seas; several provisions on conservation and management of the living resources adopted within the EEZ regime are now applicable to the high seas. This is true in relation to the above mentioned provisions on straddling stocks and the protection of specific species (art. 63-67). The freedom of fishing for nationals of all States, whether coastal or landlocked, is limited by the treaty obligations of States outside the Convention and by their duty established by the Convention to take, or to co-operate with other States in taking such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas (art. 117):
States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned (art. 118).

The obligation to determine the allowable catch or any other particular measure has not been expressly provided for; there is only an indication of factors that have to be taken into account in determining the allowable catch and establishing other conservation measures (art. 119). These factors follow the pattern of the factors also established for the EEZ (art. 61, para. 2-3). Conservation measures and their implementation must not lead to discrimination against fishermen of any State. There is also an obligation in relation to international organizations in the field not an example of clear drafting: States shall, as appropriate, co-operate to establish subregional or regional fisheries organizations to the end of facilitating cooperation for the conservation of living resources.

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The provisions of the new Convention will not only supersede the substantive, material provisions of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas, as between States parties to the new Convention; furthermore, the new general system of settlement of disputes will replace the special arbitral procedure provided for in the 1958 Convention. 15. After decades of differing claims for a special regime for small, closed or internal seas, the new Convention introduces the concept of enclosed or semi-enclosed seas, based on a vague definition of such seas, which permits that even large seas, including not only EEZ, but even parts of the high seas be considered as enclosed or semi-enclosed seas (art. 122). There are few provisions on such seas in the Convention, suggesting that States bordering enclosed or semi-enclosed seas co-operate with each other in the exercise of their rights and in the performance of their duties under the Convention (art. 123). One of the fields in which they shall endeavour, directly or through an appropriate international organization, to co-ordinate their actions is the management, conservation, exploration and exploitation of the living resources of the sea. They should also invite, as appropriate, other interested States or international organizations to cooperate with them in all the envisaged fields (living resources, protection of the marine environment, scientific research). Although of a hortatory character, the special provisions on enclosed or semi-enclosed seas are not totally without value because they relate to all regimes within such seas (not only high seas and EEZ, but also territorial seas and internal waters). Besides, these provisions follow the already existing international cooperation in some smaller, regional seas and can be seen as a stimulus for the continuation and enlargement of such actions. 16. Living resources are not expressly mentioned in the definition of the resources of the Area, although the living organisms, if any, of the sea bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction are also part of the common heritage of mankind. As the whole system of exploration and exploitation of the Area is focussed on mineral resources, or, more precisely polymetallic nodules, the problem of the conservation of marine life is not specially dealt with in Part XI of the Convention. Nevertheless, the need to protect marine life from activities in the Area is mentioned according to the general principle that these activities shall not cause harmful effects to the marine environment. Namely, the rules, regulations and procedures that the Authority has to adopt in the field of the protection of the marine environment have to prevent interference with the ecological balance of the marine environment and they shall be adopted also 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 (art. 145). Finally, among the principles of the policies relating to activities in the Area, it is stressed that these activities have to be conducted in accordance with sound principles of conservation and the avoidance of necessary waste.

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On the basis of the provisions of Parts XI and XII, we have to conclude that the main concern of the Conventions drafters was the conservation or, more precisely, the sound management of mineral resources, and when they mentioned living organisms, they had in mind the living resources of the high seas rather than those possibly existing in the Area itself. 17. One of the main new characteristics of the Law of the Sea Convention, if compared with the 1958 codification, is the inclusion in the Convention itself of a system for the settlement of disputes entailing binding decisions. Without the possibility of engaging in a thorough analysis of this complicated system of disputes settlement, let us take a look at the solutions adopted in relation to the management and especially conservation of the living resources (art. 297, para. 3). The first basic principle is that disputes concerning the interpretation or application of the provisions of the Convention with regard to fisheries have to be settled by employing one of the compulsory procedures entailing binding decisions. There is one exception to this principle; the coastal State is not obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations (art. 297, para. 3a). However, if no settlement has been reached by recourse to diplomatic means of disputes settlement, there are three categories of disputes in which any party to the dispute may submit the case to conciliation. One of them is disputes when it is alleged that (i) a coastal State has manifestly failed to comply with its obligations to ensure through proper conservation and management measures that maintenance of the living resources in the exclusive economic zone is not seriously endangered (art. 297, para. 3 b, i). Although conciliation in that case is obligatory for all the parties to the Convention, it does not entail a binding decision but only proposals to the parties with a view to reaching an amicable settlement (art. 6, Annex V). However, parties to the Convention wishing to submit their dispute relating to questions excluded from the compulsory procedures entailing binding decisions, are free to do so by submitting jointly their dispute to one of the following: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal or a special arbitral tribunal. The last offers parties a special arbitral procedure for four categories of disputes, two of them being disputes relating to: (a) fisheries, and (b) protection and preservation of the marine environment. Members of the special arbitral tribunal should preferably be chosen from the special lists of experts established for this purpose by the specialized UN bodies. Thus, the list of experts in the field of fisheries shall be drawn up and maintained by FAO, and in the field of protection and preservation of the marine environment by UNEP. It goes without saying that any award of the special arbitral tribunal has to be complied with by all the parties to the dispute (art. 4, Annex VIII; art. 11, Annex VII).

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18. During the work of UNCLOS III, the draft provisions on management exploration, exploitation and conservation of the living resources of the sea were subject to bitter criticism; many suggestions for amendments to these provisions were given. All these comments were based on the sincere wish to establish the most efficient provisions for the conservation of the marine life, and many of them highlighted the real shortages of the Draft Convention. They gave real impetus to the work of UNCLOS. Now, when all the efforts in drafting the Convention are over and we are faced with the final result of 15 years revision of the law of the sea, we have to evaluate calmly the changes and innovations inserted in that part of international law. Although we might have expected more, it is my sincere conviction that the results achieved in the field discussed in this short survey are not disappointing in view of the realities with which the Conference was faced. Let us look at some of the criticisms to UNCLOS III and the characteristics of its solutions. One of the main trends in the recent development of the law of the sea is the extension of the sovereignty and jurisdiction of coastal States over marine areas adjacent to their coasts. In view of the anarchy raging in the exploitation of the high seas, such a development cannot be deplored if we are at all concerned with the protection of the living resources of the sea. Namely, in principle, coastal States will take more care of living resources they can consider their own than will the fishery fleets of distant marine powers. All those who are suspicious of the wish and ability of coastal States to take care to the stocks under their sovereignty or jurisdiction should also be satisfied with the basic compromise reached at UNCLOS: Instead of a 200 miles territorial sea, which was the desire of many coastal States, the EEZ has been established. Thus, instead of the submission of almost all fish stocks to the sovereignty of the coastal State, a special regime has been adopted, in which the behaviour of the coastal States in respect to the living resources has been regulated by an abundance of international provisions. Although it is true that some of their provisions are of a hortatory character, this is not a particular characteristic of that part of the Conventions rules. This over-all Convention on the Law of the Sea could not have definitely and precisely regulated all States marine activities; for different reasons, UNCLOS had to leave to future special agreements and conventions, as well as to national legislation, the detailed regulation of many fields and relations. Some critics are dissatisfied with the absence of integral regulation of the regime for particular species in the entirety of the marine space. Such criticism is not really deserved. It disregards the basic reality of the present international community: the wish of coastal States to extend their power ratione territorii and ratione materiae as far as possible. In the light of such a reality, the Conventions solutions in regard to some specially protected species (marine mammals, anadromous stocks), could be considered as the first encouraging examples of a comprehensive treatment of living resources. Besides the way in which some species have been treated, the very fact that

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several specific species have been accorded special regulations on a global level is also a sign of a promising trend in the development of the law of the sea. 19. The lack of definitions or lists of species and the use of obsolete notions or unclear standards have also been mentioned. In respect of such reproaches, some remarks should be made. First, the voice of science and scientists in conferences such as UNCLOS is, unfortunately, heard only incidentally, sporadically and mainly indirectly through the UN Secretariat or through States delegations. Specialized institutions (governmental as well as NGOs) rarely appear in the main bodies, never in direct negotiations, too often only offering their services and competing among themselves in such offers. Second, various authors, institutions and organizations offer jurists different and vague solutions for inclusion in legal texts. It is very difficult for diplomats, their States representatives, to elaborate definitions if there exists no clear-cut answers in the science itself. For example, the notion and definition of sedentary species is not an invention of jurists, and it is now much critized. New unfortunate help offered by science to the establishment of legal institutions is the present formula for the definition of the continental shelf. Suggested by Irish geologists, defended by the majority of broad-margin States, it is bitterly attacked as scientifically unsound by Japanese, Soviet and other scientists. Third, one should not reproach UNCLOS for the absence of solutions to questions beyond its competence. For example, as UNCLOS was not to deal with land territory, one should not have expected the acceptance of notions such as coastal zone management, as this notion, besides the territorial sea and internal waters, includes coastal land areas. Anyhow, the better co-operation of scientists, jurists and diplomats should be provided for in the implementation of the Convention, as well as in the further development of the law of the sea through subsequent international agreements and national legislation. To this end, co-operation among specialized agencies should be improved. They have been entrusted with many duties in respect to the co-operation of States parties to the new Convention in the implementation of its provisions. As we have seen, only FAO and UNEP have been mentioned explicitly but it is clear that the help of IOC, and others is also required. 20. It is difficult to be completely satisfied with the application of compulsory dispute settlement procedures entailing binding decisions only in conservation and management disputes relating to the high seas, although one could argue that even obligatory conciliation in respect of such disputes with respect to the EEZ is a success in view of the general opposition of many States to any obligatory means of the settlement of disputes. We do not share that view, but we do consider that the mere fact that a dispute settlement system is part of the Convention itself is an encouraging event, mainly caused by the generally recognized necessity of having such a system for the solution of disputes generated in the exploration and exploitation of the Area. 21. Finally, we have to ask ourselves what will be the future of all these provisions which, for the moment, are part of an adopted Convention, signed by 155 States, but

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not yet entered into force. Today, more than six years after the signature of the Convention by the first 119 delegations at Montego Bay, it has been ratified by 40 of them (April 1989). 20 additional acts of ratification or accession are necessary for its entry into force. Although the process of ratification is rather slow, it is difficult to envisage major obstacles to its entry into force in the forthcoming years. All of the provisions discussed above will then become applicable conventional law for States parties. However, even today, with the exception of the provisions on the settlement of disputes, it could be claimed that UNCLOS III solutions also in respect to the protection of the living resources have become part of general customary international law.

Chapter 9

COMMON HERITAGE OF MANKIND: A LEGAL CONCEPT FOR THE SURVIVAL OF HUMANITY*

1. Present international relations are characterized by two divergent trends: the persistent sensibility of States concerning their sovereignty, and the growing necessity of international co-operation and unity in coping with the major international problems (food shortages, nuclear threat, international economic relations, energy problems, protection of the environment, etc.). These two opposite tendencies also determine the development of the international law of our time: rules protecting and strengthening the interests and rights of individual States are being adopted simultaneously with new principles in which individual States rights are reconciled in the interest of all States. Thus, in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (UN General Assembly Resolution 2625 /XXV/ of 24 October 1970), besides traditional principles such as the sovereign equality of States or non-intervention in internal affairs, the duty of States to co-operate with one another in accordance with the Charter has been proclaimed. The interests of States are, moreover, sometimes replaced by the common interest of humanity. Thus, the constitution of UNESCO (Paris, 16 November 1945) speaks about the worlds inheritance in the field of culture (Art. I, para. 2/c/) and States Parties to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 14 May 1954) expressed their conviction that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world. (Preambe, second operative paragraph). 2. The idea of the joint interest of the whole international community has had the most direct and strongest impact on the international regulation of some spaces beyond the limits of national jurisdiction. So, already, in the Antarctic Treaty (Washington, 1 December 1959) the interest of all mankind was pointed to as the reason both for the use of Antarctica only for peaceful purposes and for avoiding it becoming the scene or object of international disaccord (second preambular paragraph). Although the existing

First published in The Charter of Economic Rights and Duties of States Ten Years of Implementation, The Proceedings of the First Yugoslav International Seminar on Legal Aspects of the New International Economic Order, Belgrade, April 11-13, 1985, Belgrade, 1986.

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claims to territorial sovereignty were not abolished, no new claims were to be asserted (Art. IV). 3. The extension of States sovereignty to outer space was rejected at the very beginning of mans activities beyond the air space. The first legal principles established for the exploration of outer space resembled the rgime of the high seas: they were based on the res communis omnium concept. However, ever since the first Resolution adopted in the UN General Assembly concerning the outer space (Resolution 1348 /XIII/ of 13 December 1958), terms like the common interest of mankind in outer space and exploration and exploitation of outer space for the benefit of mankind have been employed. Simultaneously with the establishment of principles which permit equal, but independent, individual activities of States, mankind as a whole has been recognized as the ultimate beneficiary of the exploration and use of outer space. This parallelism is obvious also in regard to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (London, Moscow and Washington, 27 January 1967). Although this Treaty recognizes the freedom of States to explore and use outer space and celestial bodies, as well as the freedom of scientific investigation (coupled with the prohibition of national appropriation of outer space and celestial bodies), paragraph 1 of Article I determines the purpose and the limits of these freedoms:
The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

4. Nevertheless, within the framework of the 1967 Treaty on Principles, the designation of outer space as the province of all mankind had no real impact on the established conventional regime: it was based on the res communis omnium concept. The idea of humankind as a whole being the beneficiary of the exploration and exploitation of the spaces beyond the limits of national jurisdiction had a more immediate effect on the establishment of the legal rgime of the sea-bed and its subsoil. The initiative of Malta came in the year of the adoption of the Treaty on Outer-Space Principles; the suggestion concerning the sea-bed and its resources as the common heritage of mankind (CHM) was adopted in the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof beyond the Limits of National Jurisdiction (UN General Assembly Resolution 2749 (XXV) of 17 December 1970). The common heritage approach, defined in the 1970 Declaration, was opposed to the existing legal rgime of the high seas (res communis omnium), for which it was stated that it does not provide substantive rules for regulating the exploration of the aforesaid area and the exploitation of its resources (third preambular paragraph). For the purpose of establishing for the Area and its resources an international rgime on the basis of the 1970 Declaration,

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the Third UN Conference on the Law of the Sea was convened in 1973. The new Law of the Sea Convention (Montego Bay, 10 December 1982), according to its Preamble, develops the principles embodied in the 1970 Declaration (sixth paragraph); it also contains an elaborated rgime governing exploration and exploitation of the Area. It repeats that the Area and its resources are the common heritage of mankind (Art. 136) and the legal status of the Area and its resources is defined (Art. 137). 5. In the meantime, several treaties relating to specific outer space problems have been concluded, the last among them being the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (New York, 18 December 1979). In this agreement the CHM principle, to the establishment of which the law of outer space has greatly contributed, has been adopted for outer space itself. As concerns the exploration and use of celestial bodies, the definition of the 1967 Treaty has been preserved: they shall be the province of all mankind (Art. 4, para. 1 of the Moon Agreement). The right of all States to explore and use the celestial bodies has also been confirmed (Art. 4 and 11). However, there are more rules now on the basis of which the concept of the province of all mankind shall be implemented (Art. 4). 6. The main innovation of the Moon Agreement is the proclamation of the moon and other celestial bodies as the common heritage of mankind (Art. 11, para. 1). Moreover, States Parties to the Agreement have undertaken the obligation to establish an international rgime, including appropriate procedures, to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible. (Art. 11, para. 5). The main purposes of the future rgime have also been given: the orderly and safe development of the natural resources of the celestial bodies; their national management and expansion of opportunities in their use; an equitable sharing by all States Parties of the benefits derived from those resources (Art. 11, para. 7). The establishment of the international rgime will be considered at a review conference to be convened after the Agreement has been in force for five years (Art. 18). Summing up the provisions of the Moon Agreement, it has to be stressed that not all the activities in relation to the celestial bodies, proclaimed the CHM, are subject to the same regime. Their exploration and use (which does not affect the natural resources), notwithstanding their denomination as the province of all mankind, can be carried out by individual States. However, an international rgime, based on the concept of the CHM and in accordance with the purposes stated in the Agreement, has to be established for the exploitation of the natural resources of the celestial bodies. States are not entitled to undertake individual activities of exploitation prior to the establishment of an international regime, even if exploitation becomes feasible. 7. In relation to the CHM two main problems have always existed: its legal status and its content. Today, almost twenty years after the commencement of the use of that term, it is obvious that both questions have to be answered in a different manner in regard to various fields of international law. As concerns the law of the sea, the elements

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constituting the concept of the CHM in this field were already stated in the 1970 Declaration of Principles and developed in the 1982 Law of the Sea Convention. The whole evolution of the law of the sea since the 1967 initiative of Malta leaves no doubt concerning the legal nature (customary as well as conventional) of the CHM principle in that branch of international law; the same is true for other principles contained in the 1970 Declaration and in Part XI, Section 2 (Principles Governing the Area) of the Law of the Sea Convention. The evolution of the CHM approach has not reached the same level in other fields of international law for which the adoption of that concept is envisaged: the regime of Antarctica, the frequency and orbit spectrum, protection of the environment, preservation of the cultural heritage, etc. In relation to outer space the conventional scope and the constituent elements of the CHM principle have been delineated above. The further development of that principle in the law of outer space will depend upon many political, technological, economic and legal circumstances, which will influence the process of ratification of the Moon Agreement and its impact on customary international law. 8. On the basis of the acceptance and application of the CHM in particular fields of international law (law of the sea, law of outer space, etc.), it is possible to detect some common elements of that principle for broader areas of international law (for example regimes of areas beyond the limits of national jurisdiction, protection of the environment). Finally, taking together all the already achieved results in the implementation of the CHM concept, the existing trends in some new fields and the suggestions in others, it is possible, de lege ferenda rather than de lege lata, to deduce some general elements of the CHM principle relevant to each field in which this principle is applied: it has to be applied to such areas, resources and values the rational management and/ or protection of which is essential to mankind as a whole; the exploration, management, protection, preservation, use and exploitation of such areas, resources and values shall be based on internationally agreed rgimes; international machineries (organizations) shall be established for the implementation of the agreed rgimes; all rights in such areas, and in releation to such resources and values, shall be vested in mankind as a whole (present and future generations of all peoples of the world, whether organized as States or not); States and appropriate international organizations shall act on behalf of mankind; all countries and peoples shall equitably share the benefits derived from the CHM; the interests and needs of developing countries and, in some cases, other States (landlocked States, countries which have contributed to the exploration of an area, etc.) shall be given special consideration; areas, resources and values which are the CHM shall be preserved exclusively for peaceful purposes.

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The CHM principle was, on its appearance, judged a slogan void of any legal significance, notwithstanding the existence of some similar solutions in municipal laws (res publica trust, social property, etc.). Nevertheless, it has been favoured by the great majority of States as the only legal concept appropriate for the solution of problems unsolvable on the basis of traditional concepts and principles. The protection of the human environment, the prevention of drastic weather changes, the management of new sources of energy, the protection of the cultural heritage, the administration of areas beyond the limits of national jurisdiction, and the establishment of the New International Economic Order are some of the tasks whose achievement could be aided considerably by the application of the CHM principle. It is one of the modest contributions international law can offer to humanity in its struggle to survive.

Bibliographical note J. Andrassy, Pravna narav morskog dna i podzemlja otvorenog mora kao batine covjecanstva, Jugoslovenska revija za medunarodno pravo, Vol. 22, Nos. 1-2, 1975, pp. 128-137. C.Q. Christol, The Common Heritage of Mankind Provisions in the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, International Lawyer, Vol. 14, No. 3, 1980, pp. 429-483. D. Goedhuis, The Conflicts in the Interpretation of the Leading Principles of the Moon Treaty of 1979, The International Law Association, Report of the Sixtieth Conference, Montreal 1982, pp. 479-509. A.-C. Kiss, La notion do patrimoine commun de lhumanite, Recueil des cours de lAcadmie de droit international, Vol. 175 (1982-11), pp. 99-256. S. Novakovic, Zajednicka batina covecanstva u pravu mora, Prinosi za poredbeno proucavanje prava i medunarodno pravo, Vol. 15, No. 17, 1982, pp. 170-231. M. krk, Pravna narava skupne dedicine clovetva v pomorskem mednarodnem pravu, thesis, Ljubljana, 1984. B. Vukas, Zajednicka batina covjecanstva, Institut za medunarodnu politiku i privredu, Godinjak, 1981/82, pp. 190-211.

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VI NAVIGATION

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Chapter 10

THE NEW LAW OF THE SEA AND NAVIGATION: A VIEW FROM THE MEDITERRANEAN*

1.

INTRODUCTION

1. The Mediterranean coastal States, as the coastal States in many other seas, have established regional and sub-regional rules concerning exploration, management, protection and use of the sea they border. The delimitation of maritime areas, fisheries, exploration and exploitation of natural resources of the sea-bed, protection and preservation of the marine environment are subjects dealt with by many bilateral and multilateral agreements concluded between Mediterranean coastal States. However, besides this intensive regional and subregional legislation, the importance of the general international law of the sea has never diminished in respect of the Mediterranean Sea. At the time of its revision, undertaken at the Third United Nations Conference on the Law of the Sea (1973-1982), the Contracting Parties to the 1976 Barcelona Convention for the Protection of the Mediterranean Sea against Pollution expressed their position on the relation of regional and general law of the sea:
Nothing in this Convention shall prejudice the codification and development of the law of the sea by the United Nations Conference on the Law of the Sea convened pursuant to resolution 2750 C(XXV) of the General Assembly of the United Nations, nor the present or future claims and legal views of any State concerning the law of the sea and the nature and extend of coastal and flag State jurisdiction (Art. 3, para. 2).

2. Without getting into the bothersome question of individualising peremptory rules within the international legal order of the seas, it is obvious that some issues can adequately be resolved only by norms applicable to all seas and oceans. For example, principles determining the jurisdiction of the coastal State over maritime areas or the relation of the flag State and its ship have to be applied on global basis. International navigation is one of the subjects where regional and local rules should play only secondary role. General international rules are to be applied in all seas; particular solutions not en-

First printed in The Law of the Sea with emphasis on Mediterranean Issues, Thesaurus Acroasium of the Institute of Public International Law and International Relations of Thessaloniki, Volume XVII, Thessaloniki 1991.

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dangering international navigation may be agreed upon for the purpose of protecting the safety of navigation, preventing the pollution of the sea or securing the interests of the coastal States. Laws and regulations of coastal States may be adopted only within the limits permitted by international rules. 3. At the already mentioned Third United Nations Conference on the Law of the Sea (UNCLOS III) many innovations have been adopted; they are inserted in the United Nations Convention on the Law of the Sea (LOS Convention), opened for signature at Montego Bay (Jamaica), on 10 December 1982.1 The achievements in the Convention have been qualified as codification and progressive development of the law of the sea (seventh preambular paragraph) and they range from slight precisions in the previously existing law to the establishment of completely new rgimes at sea. However, due to the geographical characteristics of the Mediterranean, not all the general law of the sea is to be applied to this sea.2 For example, in the Mediterranean there are no archipelagic States in the sense of Article 46(a) of the LOS Convention, and as consequence no archipelagic waters under the sovereignty of coastal Mediterranean States. Furthermore, due to the size of the Mediterranean and the new definition of the continental shelf (Art. 76), the existence of the Area in the Mediterranean is not envisaged. 4. The purpose of this paper is to discuss the solutions adopted at UNCLOS III for the international navigation from the Mediterranean perspective. Therefore, the basis of our analysis bas to be the LOS Convention. However, as this Convention has not yet entered into force, the applicability of some of its rules is in question.3 Some of the innovations at UNCLOS III are so widely adopted by States legislations and practice that their applicability does not depend upon the entry into force of the LOS Convention (e.g. the extension of the territorial sea to 12 nautical miles, the establishment of the exclusive economic zone). On the contrary, it is difficult to qualify as general law some of the solutions adopted at UNCLOS III after protracted negotiations, even before the expression of consent to be bound by the Convention by the minimum number of States required for its entry into force (e.g. the extension, of the contiguous zone to 24 miles). Apart from the attitude of States in respect of the Convention adopted during the negotiations, at the moment of its adoption, signature or ratification, recently adopted respective laws and regulations in these countries indicate their position concerning the

1 2

UN Document A/CONF. 62/122 of 7 October 1982. For the purposes of these lectures the Mediterranean Sea is considered to include also the Black Sea. Such a broad definition of the Mediterranean, for political reasons not used very often, is based on the genuine geographical concept of the Mediterranean Sea. Thus, the Yugoslav Encyclopaedia of Maritime Affairs defines the Black Sea as the easternmost part of the Mediterranean; Pomorska enciklopedija Vol. II, 2nd ed., Zagreb 1975, p. 55. See: B. Vukas, The Impact of the Third United Nations Conference on the Law of the Sea on Customary Law, in: The New Law of the Sea, ed. by Ch. L. Rozakis and C.A. Stephanou, Amsterdam New York Oxford 1983, pp. 33-54.

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new law of the sea. Moreover, some declarations and statements made in accordance with Article 310 of the Convention and objections concerning them registered with the Secretary-General demonstrate clearly that not all the signatory States have identical positions concerning the Conventions rules on navigation. The differences in views between Mediterranean coastal States in respect of navigation are based on their geographical location, the strength of their merchant and military fleets and their relations to their neighbours.

2.

INNOCENT PASSAGE IN THE TERRITORIAL SEA

5. The provisions on the right of innocent passage in the LOS Convention contain many precisions and innovations in comparison with the hitherto existing rules of customary international law and the 1958 Convention on the Territorial Sea and the Contiguous Zone. In respect to the meaning of passage, besides the traditionally recognized purposes (traversing the territorial sea, entering internal waters or making for the high seas from internal waters), the right of innocent passage has been recognized for the purpose of calling at a roadstead or port facility outside internal waters (Art. 18, para. 1 of the LOS Convention). It has been emphasized that the passage has to be continuous and expeditious; rendering assistance to persons, ships or aircraft in danger or distress has been added to the reasons previously permitting stopping and anchoring (navigation requirements, force majeure, distress Art. 18, para. 2). In accordance with customary law, both the 1958 Geneva Convention (Art. 14, para. 4) and the LOS Convention (Art. 19, para. 1), provide that passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. The LOS Convention adds to this general rule a long list of activities which are prohibited to foreign ships in innocent passage. Moreover, this Convention also prohibits any other activity (not explicitly mentioned in the list) not having a direct bearing on passage. Engagement in any of these activities is considered to be prejudicial to the peace, good order or security of the coastal State (Art. 19, para. 2). The rules on the right of coastal States to adopt laws and regulations relating to innocent passage have also been considerably elaborated (Art. 21). Whereas the 1958 Geneva Convention mentioned only laws and regulations adopted in order to prevent foreign fishing vessels from fishing and those concerning transport and navigation (Art. 14, para. 5; Art. 17), the LOS Convention explicitly permits States to adopt laws and regulations in respect of various matters (Art. 21). The increased density of maritime traffic, particularly that of tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials, has caused the adoption of specific provisions concerning ships routeing. The coastal State may require of foreign ships exercising the right of innocent passage through its territorial sea to use sea lanes

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and traffic separation schemes it had designated or prescribed bearing in mind the safety of navigation (Art. 22). Within the obligation of the coastal State not to hamper the innocent passage of foreign ships through the territorial sea, the LOS Convention lists examples of behaviour to be avoided: a) the imposition of requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; b) the discrimination against the ships of any State (Art. 24, para. 1). 6. More provisions than in 1958 have been adopted at UNCLOS III concerning the innocent passage of warships and other government ships operated for non-commercial purposes. Apart from repeating the provisions concerning the right of the coastal State to require any foreign warship to leave immediately the territorial sea if it disregards any request for compliance with the laws and regulations of the coastal State (Art. 30), the new Convention provides for the international responsibility of the flag State for damage caused by a warship or other government ship operated for non-commercial purposes (Art. 31). However, such ships enjoy immunities (with the exceptions provided for in this Convention Art. 32). Unfortunately, UNCLOS III was also not able to give a clear-cut answer to the question of the right of the coastal State to condition the innocent passage of foreign warships by a prior authorization or notification. This is the result of the confrontation of two groups of States of almost equal strength. The first, composed of the coastal States not possessing powerful navies and anxious to protect their security, many of them nonaligned countries, favoured a provision permitting coastal States to require prior authorization or notification for the passage of foreign warships. The second group was composed of maritime powers and the majority of their allies; it defended the right of warships to unconditional innocent passage. Due to their different characteristics and attitudes the Mediterranean coastal States belonged to one or the other of the two groups. On the basis of these different approaches to the problem of innocent passage of warships, disputing suggestions were made in the Sea-Bed Committee and at UNCLOS III. One of them was put forward by a group of States the majority of which were Mediterranean: Cyprus, Greece, Indonesia, Malaysia, Morocco, Philippines, Spain and Yemen proposed that coastal States should be given the right to require prior notification of the passage of a warship or even to condition the passage of a warship or even to condition the passage by prior authorization.4 However, the other group prevailed and the first informal draft of the future LOS Convention the Informal Single Negotiating Text (ISNT) contained a provision explicitly saying that warships also enjoy the right of innocent passage.5 As the opposition of States against unconditional right of foreign war ships to innocent passage was not ceasing, the Chairman of the Second Committee

4 5

Art. 21 of UN Document A/AC. 138/SC. II/L.18. Art. 29, para. 2 of A/CONF. 62/WP. 8/Part II of 7 May 1975.

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left out from the next draft-the Revised Single Negotiating Text (RSNT) the provision on the application of the right of innocent passage to warships.6 However, this omission has not changed the drafts solution in respect of the passage of warships. Although the draft does not mention the right of warships to innocent passage, as the warships are not explicitly excluded from the right, contained among the rules applicable to all ships,7 it is implicit that they are included within the categories of ships that enjoy the right of innocent passage. The situation is basically the same as in 1958 Convention on the Territorial Sea and the Contiguous Zone apart from an additional confirmation of the intention on the part of the drafters of the new Convention to grant innocent passage also to warships. Namely, among the listed activities forbidden to ships in passage there are some activities in which only warships can be engaged: threat or use of force; exercise or practice with weapons; launching, landing or taking on board aircraft or military devices (Art. 19, para. 2). Coastal States repeatedly tried to amend the Conventions draft in respect of the passage of warships. Between 1978 and 1982 they submitted several amendments suggesting the recognition of the right of coastal States to require prior notification or authorization for the passage of warships.8 Faced with the firm resistance of maritime powers, the coastal States eventually asked only for the inclusion of security among the matters in respect of which the coastal State may adopt laws and regulations under Article 21, paragraph 1(h) of the Convention.9 Among 28 sponsors of this last effort of coastal States seven were Mediterranean countries: Algeria, Egypt, Libya, Malta, Morocco, Romania and Syria. However, responding to the Presidents appeal the group did not press their amendment to a vote under the condition that the President reads out the following statement to the plenary of the Conference:
Although the sponsors of the amendment in document A/CONF. 62/L.117 had proposed the amendment with a view to clarifying the text of the draft convention, in response to the Presidents appeal they have agreed not to press it to a vote. They would however, like to reaffirm that their decision is without prejudice to the rights of coastal States to adopt measures to safeguard their security interests, in accordance with articles 19 and 25 of the draft convention.10

7. Although the reading out of this statement by the President, T.T.B. Koh, avoided voting, the problem of the passage of warships was thus not resolved. On the contrary,

6 7 8 9 10

Art. 28 of A/CONF. 62/WP. 8/Rev. 1/Part II of 6 May 1976. Subsection A Rules applicable to all ships in Section 3 Innocent passage in the territorial sea. Suggestions: C.2/Informal Meeting/30 of 4 May 1978; C.2/Informal Meeting/58 of 20 March 1980; C.2/ Informal Meeting/58/Rev. 1 of 19 March 1982; A/CONF. 62/L.97 of 13 April 1982. A/CONF. 62/L.117 of 13 April 1982. See: UNCLOS III, Official Records, Vol. XVI, p. 132 (para. 1).

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the Presidents statement became source of new disagreements based on different interpretations. Thus, for example, the written statement made by the United States on completion of the Conference claims that the Presidents statement clearly placed coastal States security interests within the context of articles 19 and 25 of the LOS Convention which do not permit the imposition of notification or authorization requirements.11 On the other hand, declarations and statements made in accordance with Article 310 of the Convention by some of the sponsors of the amendment preceding the Presidents statement make it clear that they do not share interpretations which favour unconditional passage of warships. Some of them (Cape Verde, Romania, Sudan, Sao Tome and Principe) stress the right of the coastal State to adopt laws and regulations aimed at safeguarding its security; Cape Verde, Romania and Sudan base this claim explicitly on the Presidents statement.12 Taking into account the attitude of these States at UNCLOS III and legislations of some of them, it is difficult to believe that these declarations have in view any other purpose than to justify the conditioning of the passage of warships by a previous notification or authorization.13 Iran, on the contrary, stated explicitly that the coastal State has the right to require prior authorization for warships willing to exercise the right of innocent passage through the territorial sea,14 Yemen requires that nuclear-powered craft, as well as warships and warplanes in general obtain prior agreement of the Yemen Arab Republic before passing through its territorial waters....15 Egypt requires prior notification for innocent passage through its territorial sea.16 Another Mediterranean State, Yugoslavia, upon its ratification of the LOS Convention made the following declaration:
... Yugoslavia considers that a coastal State may, by its laws and regulations, subject the passage of foreign warships to the requirement of previous notification to the respective coastal State and limit the number of ships simultaneously passing, on the basis of the international customary law and in compliance with the right of innocent passage (articles 17-32 of the Convention).17

11 12 13 14 15 16 17

A/CONF. 62/WS/37 and Add. 1 and 2. See also: W.E. Butler, Innocent Passage and the 1982 Convention: The Influence of Soviet Law and Policy, 81 American Journal of International Law 335 (1987). Law of the Sea Bulletin (LSB), Office of the Special Representative of the Secretary-General for the Law of the Sea, No. 5, July 1985, pp. 39-40. Thus e.g. Sudans legislation requires prior authorization; see: D. Rudolf, Medunarodno pravo mora, Zagreb 1985, p. 99. LSB, No. 5, p. 39. Ibid., p. 40. LSB, Special Issue I, p. 3. Ibid., p. 8.

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For the time being, the Law on the Coastal Sea and the Continental Shelf of Yugoslavia (1965) does not require prior notification; it only limits to three the number of ships flying the same flag and simultaneously passing through the Yugoslav territorial sea.18 The declarations of Finland and Sweden are rather vague; according to them the two States will continue to apply the present rgime for the passage of foreign warships and other government-owned vessels used for non-commercial purposes ....19 The present rgime, which in their view is fully compatible with the Convention, seems to be the rgime of prior notification.20 There is only one statement under Art. 310 the one made by Italy aimed at equalizing all categories of ships in respect of innocent passage:
None of the provisions of the Convention, which corresponds on this matter to customary international law, can be regarded as this matter to customary international law, can be regarded as entitling the coastal State to make innocent passage of particular categories of foreign ships dependent on prior consent or notification.21

However, besides Italy, FR of Germany, France, United Kingdom and the United States replied to the views expressed by some delegations at the final part of the eleventh session at Montego Bay, in which directly or indirectly the right of coastal States to require prior notification or authorization was mentioned. In their written statements these Western States claimed such conditions concerning warships to be contrary to the LOS Convention and to customary law.22 8. Contrary to the declarations in accordance with Art. 310, which are an indication of the resistance of coastal States to the equal treatment of warships with all other categories of ships concerning innocent passage, the laws and regulations of States adopted after the LOS Convention was opened for signature, mainly confirm this right of warships. The recent laws and regulations of Vanuatu,23 France,24 Equatorial Guinea,25 Mexico26 and Senegal27 grant the right of innocent passage to all ships; thus, this right is also applied to warships. Only from the Royal Decree of Oman it may be concluded that this State has a general negative attitude in respect to innocent passage through its

18 19 20 21 22 23 24 25 26 27

Slubeni list SFRJ, No. 22 (1965). LSB, No. 5, pp. 39 and 40. See: D. Vignes, Les dclarations faites par les Etats signataires de la Convention sur le Droit de la Mer sur la base de larticle 310 de cette Convention, 29 Annuaire Franais de Droit International 724(1983). LSB, No. 5, p. 39. A/CONF. 62/WS/37 and Add. 1 and 2. LSB, No. 1, September 1983, p. 67. LSB, No. 6, October 1985, p. 14. Ibid., p. 19. LSB, No. 7, April 1986, p. 59. Ibid., p. 72.

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territorial sea. Namely, emphasizing its sovereignty over the territorial sea, the Royal Decree explicitly confirms only the principle of innocent passage of ships and planes of other States through international straits.28 At the time of the conclusion of the 1958 Geneva Conventions the Soviet Union had negative attitude and, national legislation concerning the unconditioned passage of foreign warships through its territorial sea. Therefore, upon ratification of the Convention on the Territorial Sea and the Contiguous Zone the USSR stated that the coastal State has the right to establish procedures for the authorization of the passage of foreign warships through its territorial waters.29 Since that time the Soviet Union has considerably developed its navy which, due to the geographical location of the USSR, more than the navies of other maritime powers, depends upon the passage through the waters belonging to other States. As a consequence thereof at UNCLOS III the Soviet Union defended the right of warships to innocent passage and after the adoption of the LOS Convention changed its legislation. However, even under the new Soviet legislation (19821983), the right of foreign warships to innocent passage is considerably restricted: for navigation through the territorial sea for the purpose of entering or leaving internal waters, or for calling at a roadstead or port facility outside internal waters, foreign warships need a prior authorization from the Soviet authorities.30 Navigation through the territorial sea for the sole purpose of traversing that sea is also limited: warships have to confine their passage to traffic separation systems enumerated for warships in the 1983 Soviet Rules on innocent passage (Art. 12).31 The other superpower the United States has a more liberal position concerning the innocent passage of warships. In a communication transmitted to all members of the United Nations in 1985, protesting against various measures and limitations of navigation proclaimed by Libya, the United States claim that all categories of vessels enjoy the right of innocent passage and that the coastal State may not condition that right upon prior notification.32 9. As demonstrated above, the text of the LOS Convention and the negotiating history of the provisions on innocent passage should be interpreted as not distinguishing warships from other categories of ships in respect of their right to innocent passage. Therefore, once the Convention enters into force, prior authorization should not be required by a Party to the Convention in respect of a warship flying the flag of any other State Party to the LOS Convention.

28 29 30 31 32

LSB, No. 1, p. 33. Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1985, ST/LEG/SER.E/4, p. 679. LSB, No. 4, September 1985, p. 28; Butler, op. cit., p. 339. Butler, op. cit., p. 343. LSB, No. 6, p. 40.

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The requirement of prior notification, the limitation of the number of ships simultaneously passing through the territorial sea or other similar precautions taken by coastal States do not hamper innocent passage of warships and, therefore, are not in contradiction with the right of all categories of ships to innocent passage. The purpose of such, measures is only to assure the coastal State of the innocence of passage; they are not requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage and they are not contrary to the Convention as long as they do not discriminate against the ships of any State (Art. 24, para. 1). The measures taken by the coastal State can be considered permissible on the basis of some of the provisions of the Convention themselves. States legislations requiring prior notification of the passage of warships or limiting the number of warships in passage are in accordance with Article 21 of the Convention permitting the coastal State to adopt laws and regulations in respect of, inter alia: the safety of navigation and the regulation of maritime traffic (para. 1/a/) and the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof (para. 1/f/). Moreover, such requirements, due to the very nature and purpose of warships, can also be considered as necessary steps the coastal State is allowed to take in its territorial sea to prevent passage which is not innocent (Art. 25, para. 1). 10. As the LOS Convention is not yet in force and in their declarations, statements, laws and regulations States many of which are not likely to become parties to the Convention expressed different opinions on the right of innocent passage of warships, the problem of the state of customary law concerning this question is relevant and intriguing. Moreover, even the LOS Convention itself leaves an open door to the application of customary law in respect to innocent passage. Namely, there is a sentence in Article 19, paragraph 1 stating:
Such passage shall take place in conformity with this Convention and with other rules of international law.

In respect of the passage of warships, the matter even at UNCLOS III resolved in a rather vague manner, unsatisfactory to many States, there is a possibility of further development of customary law. It may confirm, develop and clarify the provisions of the LOS Convention or even amend and replace them. However, before trying to find out the answer to the above question, concerning customary law of today, the question of customary law before the conclusion of the LOS Convention should be asked. The practice and legislation of States was heterogenous: many coastal States required prior notification or authorization, or limited the number of warships in passage, but there were many others which permitted unconditioned and unrestricted passage. It is therefore, difficult to claim that there had been a general rule;

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the only possible conclusion is that in respect to innocent passage warships were not treated equally with other categories of ships. Such a variety of practice on the part of States prevailed at the time of application of the 1958 Convention on the Territorial Sea and the Contiguous Zone which, as well as the Conference at which it was adopted, in respect of warships provided more vague solutions than UNCLOS III. It should, therefore, be observed how the State practice will react to the new LOS Convention. The positions of States expressed until now (declarations, statements, laws and regulations) are heterogeneous almost in the same measure as before UNCLOS III. As many of such unilateral acts of States are yet to come, it is difficult to give a definite answer concerning the content of customary law, which is being developed primarily through the reaction of States to the LOS Convention. T. Treves gives his opinion on customary law, still in evolution, which we would not dare to share. In his view the present positions of States portent penser quon se trouve en prsence dune volution vers la pleine applicabilit du principe du passage inoffensif aux navires de guerre.33

3.

STRAITS USED FOR INTERNATIONAL NAVIGATION

11. The extension of the territorial sea to 12 nautical miles, confirmed at UNCLOS III, has been proclaimed by many States long before the commencement of the Conference. As a consequence of the application of this rule, in order to pass through many straits important for international navigation, ships have to navigate through the territorial sea of either of the coastal States. In such a situation the maritime powers did not consider the innocent passage rgime as sufficient to ensure international navigation through straits, particularly the adequate mobility and efficiency of their navies.34 Although considered as one of the crucial issues before the beginning of UNCLOS III, the rgime of the passage through straits did not prove to be a very difficult issue at the Conference itself.35 However, the problem has been dealt with more extensively than at the 1958 United Nations Conference on the Law of the Sea (UNCLOS I) and several regimes for the passage through straits were adopted (Part III of the LOS Convention).

33 34

35

T. Treves, La navigation, in: R.J. Dupuy, D. Vignes, Trait du Nouveau Droit de la Mer, Paris Bruxelles 1985, p. 775. Art. 16, para. 4 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone reads: There shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State. For a survey of the negotiations concerning straits at UNCLOS III see D. Dugoevic, Tjesnaci koji slue medunarodnoj plovidbi, in: 15 Prinosi za poredbeno proucavanje prava i medunarodno pravo, Novo pravo mora, Zagreb 1982, pp. 34-47.

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The rgime of innocent passage is retained only in respect of two kinds of straits used for international navigation (Art. 45): a) a strait formed by an island of a State bordering the strait and its mainland, if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigation and hydrographical characteristics; b) a strait between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State (Art. 38, para. 1; Art. 45, para. 1). As the rgime of innocent passage is more restrictive than the other rgime envisaged in the Convention for the passage through straits the transit passage it is plausible that innocent passage has been, retained for straits mentioned under a) as in this case the strait is only one of the similarly convenient routes in the same direction. On the contrary, the category of straits mentioned under b) should not be excluded from the transit passage rgime because in the case of some foreign States the strait which they are not bordering is the only route to their shores and ports.36 12. The very scope of Article 38, paragraph 1 and Article 45, paragraph 1(a) is clear in the case of straits such as the Corfu Channel or the straits of Pemba and Zanzibar, where there exists seaward of the island a route through the high seas or through an exclusive economic zone, although the question whether a route is of similar convenience with respect to navigational characteristics in many cases depends upon the destination of a ship. In order to make it clear that it considers the strait of Messina as belonging to the category of straits envisaged in Article 45, paragraph 1(a), Italy in 1979 adopted a ministerial order concerning the right of ships to innocent passage in this strait.37 However, Article 38, paragraph 1 does not provide a solution for the case where the route seaward of the island is not a route through the high seas or through an exclusive economic zone, but a route through the territorial sea belonging to the same coastal State as the waters of the strait. Thus, in the case of States possessing archipelagos adjacent to their coasts, the alternative routes would pass through another strait between two islands belonging to the same State. It is obvious that at least in one of the straits all ships should enjoy the right of transit passage, but the coastal State should not be obliged to permit the application of the liberal rgime of transit passage in all the straits serving the same route of international navigation. The problem was noticed by Tullio Treves:

36

37

According to Pharand, there are only about 20 such straits; for commercial shipping the most important are: Juan de Fuca, Lema Channel, Jacques Cartier Pass and Jubal Strait; D. Pharand, International Straits, in: 7 Thesaurus Acroasium, The Law of the Sea, Thessaloniki 1977, p. 76. In our view, the Strait of Tiran belongs to the kind of straits envisaged in Art. 45, para. 1(b) of the LOS Convention. However, the Treaty of Peace concluded between Egypt and Israel on 26 March 1979 contains specific regime for that strait (Art. 5, para. 2); 18 International Legal Materials 362 (1979). Order of the Ministry of the Merchant Navy of 5 November 1979; Gazzetta Ufficiale della Repubblica Italiana, no 328, 1 December 1979. See also: Treves, op. cit., pp. 776 and 789.

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... les raisons qui ont conduit adopter lexception prvue cet article (Art. 38, para. 1-B.V.) valent aussi dans le cas ou il y a une ou plusieurs routes alternatives passant entre des les du mme Etat. La diffrence est que, dans ce cas, il faut dterminer quel est le dtroit o vaut le passage en transit et quel est le dtroit o est applicable le passage inoffensif.38

Faced with this problem two of the Mediterranean coastal States made declarations in accordance with Article 310 of the LOS Convention. At the time of signing the Convention Greece made the following declaration:
The present declaration concerns the provisions of Part III on straits used for international navigation and more especially the application in practice of articles 36, 38, 41 and 42 of the Convention on the Law of the Sea. In areas where there are numerous spread out islands that form a great number of alternative straits which serve in fact one and the same route of international navigation, it is the understanding of Greece, that the coastal State concerned has the responsibility to designate the route or routes, in the said alternative straits, through which ships and aircrafts of third countries could pass under transit passage regime, in such a way as on the one hand the requirements of international navigation and overflight are satisfied, and on the other hand the minimum security requirements of both the ships and aircrafts in transit as well as those of the coastal State are fulfilled.39

The declaration of Greece was objected by Turkey, which qualified it as contrary to the Convention and principles of international law.40 The declaration made by Yugoslavia at the time of ratification is based on similar considerations as that of Greece:
The Government of the Socialist Federal Republic of Yugoslavia... considers that it may, on the basis of article 38, paragraph 1, and article 45, paragraph 1(a) of the Convention, determine by its laws and regulations which of the straits used for international navigation in the territorial sea of the Socialist Federal Republic of Yugoslavia will retain the rgime of innocent passage, as appropriate.41

13. The rgime of transit passage, generally adopted for straits used for international navigation, is a compromise between the wish of maritime powers for a free passage and the efforts of States bordering straits to retain the regime of innocent passage in

38 39 40 41

Treves, op. cit., p. 790. LSB, No. 5, pp. 13 and 45; see also: Treves, op. cit., pp. 789-790. A/CONF.62/WS/37 of 25 April 1983. LSB, No. 8, November 1986, p. 9.

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respect of all straits.42 The new rgime accords States bordering straits sufficient legislative powers to regulate the passage; the ship has to proceed without delay through the strait, observing international rules and laws and regulations of the State bordering the strait. Transit passage shall be applied to all straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone (Art. 37), with the exception of the already mentioned case of straits formed by the mainland and an island belonging to the same State (Art. 38, para. 1). Thus, the application of the transit passage rgime does not depend upon any specific volume of international navigation but the existence of such navigation must be confirmed and not only potential. Although in respect to both passages no suspension is permitted, there are several considerable differences between the rgimes of innocent and transit passage. Innocent passage is applicable only to ships; the rgime of transit passage is enjoyed also by aircraft. More clear than in the case of innocent passage, it has been pointed out that all ships and aircraft enjoy the right of transit passage (Art. 38, para. 1), i.e. warships and military aircraft are included. These last are even in a better position than civil aircraft. They are required only normally to comply with safety measures established by the ICAO (Art. 39, para. 3/a/). Spain, which has never accepted the principe that transit passage includes overflight, on signing the Convention made a declaration interpreting the word normally as meaning except in cases of force majeure or distress.43 This interpretation, much as it should be supported in the interest of the safety of air navigation, is obviously contrary to the intentions of the drafters of Article 39, paragraph 3(a), who envisaged the international rules covering air space superjacent to the high seas applicable also to the overflight in transit passage.44 Another difference between the rgimes of innocent and transit passage has also been adopted in favour of navies: while exercising the right of transit passage submarines are not required to navigate on the surface and to show their flags, as in the rgime of innocent passage. (Art. 20).45 Furthermore, neither criminal nor civil jurisdiction of the coastal State in relation to foreign ships is provided for in the rgime of transit passage. States bordering straits are entitled to adopt laws and regulations in respect to a more limited range of issues than in the rgime of innocent passage. Their legislation may

42

43 44 45

Cf. the proposals of the United States (A/AC.138/SG.II/L.4) and the Soviet Union (A/AC.138/SC.II/L.7) with the joint proposal of Cyprus, Greece, Indonesia, Malesia, Morocco, Philippines, Spain and Yemen (A/AC.138/SC.II/L.18). The transit passage rgime has been elaborated on the basis of the proposal of the United Kingdom (A/CONF.62/G.2/L.3). LSB, No. 5, p. 42. See: Treves, op. cit., p. 799. Opposite views concerning the passage of submarines in the regime of transit passage have been expressed; see: W.M. Reisman, The Regime of Straits and National Security: An Appraisal of International Lawmaking; J. Norton Moore, The Rgime of Straits and the Third United Nations Conference on the Law of the Sea, 74 American Journal of International Law, pp. 48-121 (1980).

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relate to: a) safety of navigation and the regulation of maritime traffic by designating sea lanes and prescribing traffic separation schemes (with a more emphasized role of the IMO than in respect of innocent passage); b) the protection of the marine environment, but only by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait; c) the prevention of fishing; d) the loading or unloading of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary laws and regulations of States bordering straits (Art. 42, para. 1). The list of activities expressly prohibited to ships in transit passage is also restricted. They must refrain from any threat or use of force, research and survey activities and any other activities other than those incident to their normal modes of continuous and expeditious transit (Art. 39 and 40). The most important difference between the two regimes lays in the absence in the transit passage regime of an analogous power to the one which is possessed by the coastal State in respect of innocent passage: the right to take necessary steps to prevent passage which is not innocent (Art. 25, para. 1). This cannot mean that States bordering straits have no possibility to protect themselves from acts committed in their territorial sea by ships and aircraft exercising the right of transit passage. Treves bases the right of the coastal State-sovereign over its territorial sea to intervene in respect of ships and aircraft violating the rgime of transit passage on Article 38, paragraph 3 which reads:
Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of this Convention.46

At any rate, peaceful settlement of disputes, for which rules are provided for in this Convention (Part. XV), should have priority over the use of force, except in cases of real and imminent danger for the coastal State. 14. There are two other categories of straits to which under the LOS Convention neither the regime of innocent passage nor transit passage applies. The first is the case of a strait used for international navigation, if there exists through the strait a route through the high seas or through an exclusive economic zone of similar convenience with, respect to navigational and hydrographical characteristics (Art. 36). The Conventions drafts did not provide for any rgime of passage or navigation through such straits; the only purpose of mentioning them in the Part of the Convention dealing with straits was to exclude the applicability of the rgimes of both transit and innocent passage to such straits. Yugoslavia, whose international maritime traffic depends upon the unimpeded navigation through a strait belonging to the kind envisaged in Article 36 the Strait of

46

Treves, op. cit., pp. 799-800.

VI NAVIGATION

147

Otranto insisted in specifying that freedom, of navigation apply to such straits.47 A satisfactory formula was eventually agreed upon by the Drafting Committee and the freedoms of navigation and overflight were confirmed in the second phrase of Article 36:
... in such routes, the other relevant Parts of this Convention, including the provisions regarding the freedoms of navigation and overflight, apply.

15. The fourth category of straits under the LOS Convention is straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits. It has been confirmed that nothing in this Part (Part III Straits Used for International Navigation B.V.) affects the legal rgime in such straits in which passage is regulated by long-standing international conventions (Art. 35/c/). It is clear that this provision is to be applied to the straits of Bosporus and Dardanelles, in which passage is regulated in whole by the 1936 Montreux Convention.48 However, commentaries differ in respect to the application of Article 35 (c) to straits concerning which treaties have been concluded, but they regulate passage only in part; such are the Danish Straits (Treaty of 14 March 1857)49 and the Strait of Magellan (Treaty of 23 July 1881).50 While for K.L. Koh examples of treaties envisaged in Article 35(c) are the Turkish Straits, the Strait of Magellan, and the Danish Straits,51 T. Treves states that in negotiating this article delegations had in mind the Turkish Straits and the Strait of Magellan.52 Be that as it may, some States are inclined to extend the scope of Article 35(c). Thus, Sweden and Finland, at the time of signature of the LOS Convention expressed their understanding that the exception from the transit passage rgime provided for in Article 35(c) is applicable to the strait between Finland (the land Islands) and Sweden, as in that strait the passage is regulated in part by a long-standing international convention.53 Neither of the two States indicated to which convention this referred to, but they must have had in mind the Convention concluded on 20 October 1921 in Geneva.54 Sweden also excluded the application of the transit passage rgime in respect to Oresund, whereas the other State bordering that strait, Denmark made in this respect no comment. Article 35(c) can in no way be applied to the Treaty of Peace concluded between Israel and Egypt on 26 March 1979, whereby the two States deter-

47 48 49 50 51 52 53 54

See: B. Vukas, Konvencija Ujedinjenih naroda o pravu mora i plovidba Otrantom, in: Uporedno pomorsko pravo i pomorska kupoprodaja, 1984, No. 103-104, pp. 515-532. M.O. Hudson, 7 International Legislation 386-403. Text in: V. Ibler, Sloboda mora, Zagreb 1965, pp. 102-106. See: J. Andrassy, Medunarodno pravo, 9th ed., Zagreb 1987, p. 189. K.L. Koh, Straits in International Navigation Contemporary Issues, 1982, p. 149. Treves, op. cit., pp. 791-792. LSB, No. 5, pp. 41 and 43. 9 League of Nations Treaty Series 211. See also: Treves, op. cit., p. 992, note 25.

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mined the rgime of the Strait of Tiran and the Bay of Aqaba (Art. 5, para. 2). Article 35(c), relating to long-standing international conventions was drafted even, before the conclusion of this Peace Treaty. Therefore, even Israel, which claims that the rgime of the Peace Treaty will continue to prevail and to be applicable to the Bay of Aqaba and the Strait of Tiran, does not refer to Article 35(c).55 On his side, Egypt stresses that the provisions of the Peace Treaty come within the framework of the general rgime of waters forming straits referred to in part III of the Convention....56 As far as the Mediterranean is concerned, Article 35(c) could be referred to in respect to the Strait of Gibraltar. Namely, the Declaration adopted on 8 April 1904 (London) by France and Great Britain granted free, passage through the Strait of Gibraltar. On the basis of the Convention concluded between France and Spain on 27 November 1912 (Madrid), Spain acceeded to the 1904 Declaration.57 For the time being neither of the States bordering the Strait of Gibraltar has referred to Article 35(c), although at the time of signing the Convention Spain made several comments concerning the regime of straits.

4.

THE EXCLUSIVE ECONOMIC ZONE

16. For maritime powers and for many other States the granting of the freedom of navigation in the exclusive economic zone (EEZ) was a conditio sine qua non for the acceptance of that new and specific legal rgime at sea. Moreover, they have accomplished their goal that the freedom of navigation (as well as the freedoms of overflight and of the laying of submarine cables and pipelines) be the one referred to in article 87, i.e. in the rgime of the high seas (Art. 58, para.1).58 As a consequence thereof there are no specific rules on navigation in the Conventions Part on the EEZ. Rules on navigation on the high seas are to be applied in the EEZ not only as a consequence of Article 58, paragraph 1, which refers to the freedom of navigation as to a freedom of the high seas, but also on the basis of paragraph 2 of the same Article, which provides for the application in the EEZ of Articles 88 to 115 (general provisions on the high seas) in so far as they are not incompatible with the specific rules on the EEZ (Part. V). However, it must be pointed out that some of the rules on the high seas have already been amended taking into account the establishment of the EEZ. For example, the hot pursuit of a foreign ship may now commence also for violations of the laws and regulations of the coastal State in its EEZ (Art. 111, para. 2).

55 56 57 58

Note by the Permanent Mission of Israel to the United Nations sent to the Secretary-General of the United Nations, dated 9 December 1984; LSB, No. 4, p. 23. Declaration E made by Egypt upon ratification of the LOS Convention, LSB, Special issue I p. 3. For the texts: Ibler, op. cit., p. 122. See: B.H. Oxman, The Third United Nations Conference on the Law of the Sea: The 1977 New York Session, 72 American Journal of International Law 72 (1978).

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149

Notwithstanding the recognition of the high seas freedom of navigation, it is obvious that the rights and the jurisdiction of the coastal State, in practice shall inevitably limit and hamper the freedom of navigation in the EEZ. Thus, the construction of artificial islands, installations and structures and the establishment of safety zones around them may cause interference to free navigation except to the use of recognized sea lanes essential to international navigation (Art. 60, para. 7). On the other hand the coastal State may, exercising its sovereign rights in respect to the living resources of its EEZ take such measures including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention (Art. 73, para. 1). However, in order not to impair navigation unnecessarily, paragraph 2 of Article 73 provides that arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security. The jurisdiction of the coastal State with regard to the protection and preservation of the marine environment is very often being quoted as a threat to the freedom of navigation (para. 1/b/ /iii/, Art. 56). Particularly relevant in this sense is the right of the coastal State to adopt and enforce laws and regulations with respect to pollution by dumping and pollution from vessels.59 However, safeguards have been provide (for in order not to unduly impair the freedom of navigation in the EEZ.60 Although it is not explicitly mentioned in the LOS Convention, the possibility of determining sea lanes and prescribing traffic separation schemes exists also in the EEZ (as well as on the high seas). Ships routeing beyond the limits of national jurisdiction has been provided for in the International Regulations for Preventing Collision at Sea, 1972,61 and the elaborated routeing measures are adopted by IMO. Contrary to the territorial sea, where the final decision remains with the coastal State, in respect to routeing systems any part of which lies beyond the territorial sea, the final decision is taken by IMO.62 Such a procedure ensures that in the adoption of routeing systems the interests of the coastal States as well as the freedom and safety of navigation be taken into account. 17. Due to the wide acceptance of the EEZ by coastal States, this rgime was considered as a part of general customary international law even before the completion of

59 60 61 62

Articles 210, 211, 216 and 220. Part XII, Section 7. Rule 1 and 10; Slubeni list SFRJ, No. 60 (1975). General Provisions On Ships Routeing, 3.8, IMO, Amendment No. 6 to the fifth edition of Ships Routeing, Amendments adopted by the Maritime Safety Committee at its fifty-second session (January 1986). For the time being the traffic separation schemes in the Mediterranean are: in the Strait of Gibraltar, off Cani Island, off Cape Bon, in the Approaches to the Piraeus Harbour, in the Southern Approaches to the Kerch Strait, between the Ports of Odessa and Ilichevsk and in the Approaches to the Ports of Odessa and Ilichevsk; IMO Ships Routeing, fifth ed., London 1984, Part B, Section III.

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UNCLOS III.63 Today 69 States have proclaimed their EEZs and 20 other have established an exclusive fishery zone of 200 nautical miles.64 Although they belong to all oceans and seas, in the Mediterranean a certain self-restraint in proclaiming the EEZs is to be noticed. There are only two States which proclaimed their EEZs and adopted elaborated regulations in respect to this rgime: the Soviet Union and Romania.65 Egypt has proclaimed its EEZ by a declaration made upon its ratification of the LOS Convention.66 It is unclear whether the claim of Morocco to a 200-mile EEZ is limited only to its Atlantic coast or whether it includes the Mediterranean coast.67 Malta claims only a fishery zone of 25 miles and Turkey limits its fishery zone to 12 miles.68 France and Spain do not apply their laws on the EEZ to the Mediterranean69 and also the 200-mile fishery zone of the European Economic Community has not been proclaimed in that sea.70 Such a reserved attitude in respect to the EEZ is concurrent with the opinion that this rgime corresponds to the oceans and not to small, semi-enclosed seas, such as the Mediterranean.71 18. The resistance of some States to the establishment of the EEZs in the Mediterranean is due to several reasons, one of them being the fear that their establishment could cause problems to free navigation in that sea. Apart from the inevitable limitations to the freedom of navigation under the rgime of the EEZ mentioned above under 16, statements made by some delegations at the final part of the eleventh session of UNCLOS III and the declarations of some States made in accordance with Article 310 of the LOS Convention justify such fears. Thus, Brazil, Cape Verde and Uruguay state that under the rgime of the EEZ there is no right to carry out military exercises or manoeuvres in the EEZ of another State.72 Although these declarations were not made by Mediter-

63

64 65 66 67

68 69 70 71 72

See: B. Conforti, Aspetti transitori della disciplina della zona economica esclusiva, in: La zona economica esclusiva, ed. by B. Conforti, Milano 1983, p. 4; L. Caflisch, Fisheries in the Exclusive Economic Zone: An Overview, in: The International Legal Regime of the Mediterranean Sea, ed. by U. Leanza, Milano 1987, p. 170. There are still 13 States which maintain 200 miles as the breadth of their territorial seas; LSB, No. 8, p. 28. LSB, No. 4, pp. 31-40; No. 8, pp. 17-22. LSB, Special Issue I, p. 4. The Law of the Sea, National Legislation on the Exclusive Economic Zone, the Economic Zone and the Exclusive Fishery Zone, Office of the Special Representative of the Secretary-General for the Law of the Sea, United Nations, New York 1986, pp. 195-198. LSB, No. 2, March 1985, pp. 55 and 85. Ibid., pp. 31 and 78; The Law of the Sea, National Legislation on the Exclusive Economic Zone..., pp. 101109, 282-283. See: L. Lucchini, M. Voelckel, Les Etats et la Mer, le nationalisme maritime, La Documentation franaise, Paris 1977, pp. 406-407. See R.J. Dupuy, in: The International Legal Regime of the Mediterranean Sea..., p. 274. LSB, No. 5, p. 45.

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ranean coastal States (which in their laws and regulations confirm the right of all States, whether coastal or land-locked, to the freedom of navigation), Italy denied such claims:
- according to the Convention, the coastal State does not enjoy residual rights in the exclusive economic zone. In particular the rights and jurisdiction of the coastal State in such zone do not include the right to obtain notification of military exercises or manoeuvres or to authorize them.73

It is obvious that for the sake of peace and security military exercises and manoeuvres in foreign EEZs should be avoided. However, such a restriction to the freedom of activities of navies was not intended by the drafters of the LOS Convention. Article 58, paragraph 1 grants freedom of navigation and overflight referred to in article 87, i.e. in the rgime of the high seas, where military exercises and manoeuvres are legitimate activities. It may be claimed that to a certain degree they are an indispensible element of the free navigation of warships. Moreover it should not be forgotten that besides the freedoms of navigation and overflight and of the laying of submarine cables and pipelines, all ships enjoy in the EEZ other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines... (Art. 58, para. 1). There is no doubt that exercises and manoeuvres of navies are uses of the sea related to their freedoms of navigation and overflight and that they are associated with the operation of warships and military aircraft.74 These were, indeed, the activities that the military powers had in mind when they insisted on drafting the quoted final phrase of Article 58, paragraph 1. It is, therefore, erroneous to define these activities as residual rights in the exclusive economic zone as the Italian declarations states. In 1978 Peru tried to prevent such an effect of Article 58, paragraph 1 by suggesting the insertion of a new paragraph 2:
Foreign warships and military aircraft passing through the exclusive economic zone shall refrain from engaging in manoeuvres or using weapons without the consent of the coastal State.75

The Peruvian suggestion was not accepted, and the result of this failure to change the Draft Convention can now not be remedied by declarations claiming the interdiction of military exercises or manoeuvres without consent of the coastal State. However, it should be pointed out that in carrying out such military activities foreign States must have due regard to the right and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Conven-

73 74 75

Ibid., pp. 15 and 45. In this sense: T. Treves, Le nouveau rgime des espaces marins, paper presented to the Conference: Les institutions face aux nouvelles donnes de la prsence en mer, Paris, 26-28 May 1983, p. 20. C.2/Informal Meeting/9 of 27 April 1978.

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tion and other rules of international law ... (Art. 58, para. 3) and that they have to be carried out with the restraint from any threat or use of force against the coastal State (Art. 301). In so far as military exercises and manoeuvres of foreign navies are not contrary to these provisions of the LOS Convention they should not be considered contrary to the rgime of the EEZ and prior authorization should not be required.

5.

SETTLEMENT OF DISPUTES CONCERNING NAVIGATION

19. Contrary to the 1958 codification of the law of the sea, when a special treaty was adopted concerning the settlement of disputes arising out of the interpretation or application of the Geneva Conventions the Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes the LOS Convention itself contains a system of disputes settlement (Part. XV). The basic principle of this system is that any dispute concerning the interpretation or application of the Convention not settled by recourse to other means provided for in the Convention (Part XV, Section 1), shall be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under the Convention (Art. 286). For such judicial settlement of disputes States may choose one or more of the following means: a) the International Tribunal for the Law of the Sea established in accordance with the Convention; b) the International Court of Justice; c) an arbitral tribunal also constituted in accordance with the Convention; d) a special arbitral tribunal which may be constituted for four categories of disputes one of them being disputes concerning navigation, including pollution from vessels and by dumping (Art. 1, Annex VIII to the LOS Convention). The Soviet Union, the Ukrainian SSR and Egypt are the only Mediterranean States which have made their choice until now.76 The USSR and Ukraine have chosen an arbitral tribunal as the basic means for the settlement of disputes and a special arbitral tribunal for the four specified categories of disputes. Egypt has accepted the general arbitral procedure for all disputes. 20. However, the Convention provides also some limitations on (Art. 297) and optional exceptions to (Art. 298) the applicability of the mentioned compulsory procedures entailing binding decisions. One of them permits a State to declare that it does not accept any one or more of these procedures with respect to disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service... (para. 1(b), Art. 298). Tunisia, the Soviet Union and the Ukrainian SSR have already declared that they do not accept compulsory procedures entailing binding decisions for the consideration of disputes concerning military activities.77 It is obvious that this optional exception relates to all maritime areas; the extent

76 77

LSB, No. 5, p. 23; Special Issue I, p. 4. LSB, No. 5, p. 23; Special Issue I, p. 8.

VI NAVIGATION

153

to which navigation of government vessels itself can be considered as a military activity is less clear. Taking into account all the limitations and exceptions, the general picture concerning the applicability of the compulsory procedures entailing binding decisions to different maritime areas is the following:
a) Although disputes concerning the freedom of navigation on the high seas are not particularly mentioned, it is obvious that the compulsory procedures entailing binding decisions are fully applicable to such disputes as they are not subject to any specific limitation or optional exception. b) Compulsory procedures entailing binding decisions are to be applied also to disputes concerning navigation in the exclusive economic zone (para. l(a) and (b), Art. 297). c) The answer to the question of the applicability of compulsory procedures entailing binding decisions to disputes concerning navigation in the internal waters, the archipelagic waters and the territorial sea is vague. There is no explicit exclusion of disputes concerning these areas under the sovereignty of coastal States from the application of these procedures but, according to A.O. Adede, such an exclusion was not necessary: Disputes arising from the conduct of states in their territorial sea are assumed to be unquestionably within the competence of domestic courts, as in the case of those arising in the land territory of a state. Thus, no specific exclusion was required under paragraph 1 of Article 17 (of the RSNT para. 1, Art. 297 of the LOS Convention B.V.) with respect to such disputes.78

In general, this conclusion seems plausible if we take into account the fact that compulsory procedures entailing binding decisions for disputes concerning the EEZ and the continental shelf, where the coastal State has only sovereign rights and jurisdiction and not sovereignty, have been envisaged only in respect of some, explicitly mentioned, categories of disputes (Art. 297, para. 1). However, we could not share Adedes conclusion in respect to all uses of the territorial sea. It is difficult to accept the interpretation that States would not enjoy the protection of international courts or tribunals (after the exhaustion of local remedies Art. 295) in respect of the right of innocent passage in the territorial sea or the right of transit passage through straits used for international navigation.79 21. The right of the coastal State to take, within the limits of its jurisdiction, different measures (arrest included) against foreign ships violating its laws and regulations adopted in accordance with international law, may hamper the interests of international navigation considerably. As a safeguard against this danger the LOS Convention provides that

78 79

A.O. Adede, Law of the Sea: The Scope of the Third-Party Compulsory Procedures for Settlement of Disputes, 71 American Journal of International Law 307 (1977). W. Riphagen comes to the same conclusion by extending the application of Art. 297, para. 1(a) and (b) also to other areas besides the EEZ; W. Riphagen, Dispute Settlement in the 1982 United Nations Convention on the Law of the Sea, in: The New Law of the Sea..., pp. 288-289.

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arrested vessels and their crews have to be promptly released upon the posting of reasonable bond or other security.80 Moreover, the settlement of disputes system contains specific rules for disputes where it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security... (Art. 292, para. 1). Such a question may be submitted to any court or tribunal agreed upon by the parties. If there is no agreement within 10 days from the time of detention, the case may be submitted to a court or a tribunal accepted by the detaining State or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree. The court or tribunal has to deal without delay with the application for release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or crew (Art. 292, para. 3). The court or tribunal determines the bond or other security, and once they are posted, the authorities of the detaining State have to comply promptly with that decision concerning the release of the vessel or its crew (Art. 292, para. 4). Several States have made declarations choosing the court or tribunal for disputes concerning the prompt release of vessels. As far as the Mediterranean coastal States are concerned, the Ukrainian SSR and the Soviet Union have recognized the competence of the International Tribunal for the Law of the Sea.81 The rules on the prompt release of vessels confirm the fact that the LOS Convention is an inseparable whole and that in substantial and procedural provisions relative to navigation the interests of different groups of States are carefully balanced. It would thus be harmful, dangerous and unjust to depend upon customary law developed on the basis of several parts of the LOS Convention and not to apply the whole Convention as treaty law. The Mediterranean States should ratify the Convention and thus contribute to its early entry into force.

80 81

Articles 73, 216, 218, 220 and 226 of the LOS Convention. LSB, No. 5, p. 58.

VII MILITARY USES OF THE SEA

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Chapter 11

LUTILISATION PACIFIQUE DE LA MER, DNUCLARISATION ET DSARMEMENT*

1. 1.1. A.

GENERALITES La mer, lieu de paix? Lutilisation de la mer et lemploi de la force

1. Observation gnrale De tous temps, la satisfaction des besoins de lhomme a t troitement lie un dsir de rendre impossible la satisfaction de ces mmes besoins chez un autre homme. Au fil de lhistoire, des tribus, des peuples et des Etats sont entrs en conflit pour sassurer leur nourriture, leur tablissement, des voies de communication, des matires premires, etc. La comptition parmi les peuples et les Etats existait mme lorsquil y avait suffisamment de richesses et despace pour tous; la course aux rgions inexplores, aux colonies, aux sphres dinfluence en sont des exemples. Ainsi, en ce qui concerne les espaces marins et leurs ressources, les puissances maritimes les plus importantes sefforaient dacqurir une position privilgie et de rendre plus difficile et mme impossible aux autres peuples et Etats lutilisation de la mer pour la pche ou la navigation. Ils utilisrent dans ce but toutes les formes possibles de pression et de menace, voire employrent la force. Lhomme engageait donc la force dans des activits, pacifiques en elles-mmes, dont il souhaitait exclure lautre. Cependant, sauf dans la comptition entre les Etats en vue de lutilisation de la mer elle-mme, la force sur mer tait employe galement lors de la plupart des guerres entre les Etats, provoques par des raisons qui navaient le plus souvent aucun lien avec la mer elle mme. Dans cette perspective historique, la situation actuelle doit malheureusement nous sembler bien plus dangereuse que toutes celles que lhumanit a connues jusqu prsent. A la diffrence de lpoque o la mer paraissait tre un rservoir inpuisable de poissons et une voie navigable indestructible pour un nombre relativement restreint dEtats, elle

Chapitre 21 du livre Trait du Nouvea Droit de la MER, (Sous la direction de Ren-Jean Dupuy et Daniel Vignes), Economica-Paris, Bruylant-Brussels, 1985.

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est de nos jours surexploite et pollue et pourtant elle doit encore aujourdhui satisfaire les intrts de cent soixante pays en matire de pche, de ressources minrales et de navigation. Dautre part, la course effrne larmement nuclaire, qui est une grave menace pour la survie de lhumanit, aboutit donner aux marines de guerre une importance sans prcdent. En effet, les grandes puissances sont persuades que les sous-marins nuclaires quips de missiles balistiques sont un garant de leur quilibre nuclaire mutuel et un facteur de dissuasion de la premire attaque nuclaire. 2. Objet du chapitre La quinzaine dannes de durs efforts accomplis pour parvenir la Convention des Nations Unies sur le droit de la mer et le contenu volumineux et complexe de celle-ci montrent lampleur du rle actuel de la mer et limportance dune rglementation des rapports entre les Etats dans ce domaine. On remarque nanmoins dans cette convention une disproportion, quant leur nombre et leur prcision, des rgles sur les activits caractre conomique ou scientifique et sur les autres utilisations pacifiques de la mer par rapport aux dispositions rgissant lutilisation de la mer des fins militaires. Il convient, cet gard, de souligner quil existe des normes du droit de la mer qui rgissent les activits, quelles soient de nature civile ou militaire, mais que les rgles qui dlimitent les activits civiles des activits militaires manquent de prcision. Les activits caractre conomique ou scientifique et les autres utilisations pacifiques de la mer ainsi que leur rglementation sont traites dans les autres parties du prsent ouvrage, nous nen parlerons donc que trs rarement dans ce chapitre. Par ailleurs, notre tche nest pas dexaminer les rgles internationales relatives la guerre maritime. Ce sur quoi nous nous pencherons, ce sont les dispositions concernant lutilisation de la mer des fins militaires en priode de paix. Ces dispositions ne sont pas nombreuses; beaucoup dentre elles ont t adoptes il y a bien longtemps et lon peut souvent se demander si elles sont encore en vigueur; elles ne sont pas systmatiques et sont, dans bien des cas, valables seulement pour des espaces restreints et pour un petit nombre dEtats. Leur contenu est de deux sortes: les unes dfinissent lutilisation de la mer des fins militaires en temps de paix (par exemple limmunit des navires de guerre), tandis que les autres limitent ou interdisent certaines actions militaires (par exemple linstallation darmements nuclaires). Pourtant, les diffrences entre ces deux catgories de dispositions seffacent souvent, car les activits militaires sont parfois strictement limites aussi par les dispositions de la premire catgorie (par exemple le passage des navires de guerre dans les dtroits turcs).

VII MILITARY USES OF THE SEA

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B.

Affectation de la mer des fins pacifiques

1. Origine du principe La notion daffectation exclusive dun espace des fins pacifiques na t introduite dans le droit de la mer que lors de sa dernire rvision. Ce terme a commenc tre employ dans le Trait sur lAntarctique du 1er dcembre 19591 et dans le Trait du 27 janvier 1967 sur les principes rgissant les activits des Etats en matire dexploration et dutilisation de lespace extra-atmosphrique, y compris la Lune et les autres corps clestes.2 Ces deux traits, dont le but a t dtablir une coopration internationale en matire de recherche despaces nouveaux, en mme temps que daffirmer le principe de leur utilisation exclusive des fins pacifiques, imposent la dmilitarisation de ces espaces. Cependant, comme le dit Quneudec, bien que la dmilitarisation donc linterdiction dinstallations et dactivits militaires soit une condition de laffectation exclusive des fins pacifiques, elle nest pas rglemente de la mme faon pour lAntarctique et pour lespace extra-atmosphrique; elle est beaucoup plus complte dans le cas de lAntarctique.3 2. Droit de la mer En ce qui concerne le droit de la mer, laffectation des fins pacifiques nest vritablement mentionne pour la premire fois que dans la Dclaration des principes rgissant le fond des mers et des ocans au-del des limites de la juridiction nationale, adopte le 17 dcembre 1970 par lAssemble gnrale des Nations Unies. Il y est dit que la zone internationale des fonds marins sera affecte des fins exclusivement pacifiques, et lon prvoit la conclusion daccords internationaux de manire appliquer effectivement ce principe et faire un pas vers lexclusion du fond des mers et des ocans, ainsi que leur sous-sol, de la course aux armements (8me principe). Dans la Convention sur le droit de la mer, on reprend le principe de lutilisation de la zone internationale des fonds marins des fins exclusivement pacifiques (art. 141). Pourtant, dans la Convention, ce principe stend galement la mer elle-mme. Ainsi, dans lart. 88, il est dit que la haute mer est affecte des fins pacifiques. En vertu de lart. 58, cette disposition sapplique aussi la zone conomique exclusive. Quant la recherche scientifique marine, elle est mene des fins exclusivement pacifiques (art. 240, a). Quelle est limportance de ladoption de ce nouveau principe dans le droit de la mer? Signifie-t-elle quil est dsormais interdit dutiliser la mer des fins militaires? Il est

1 2 3

R.T.N.U., vol. 402, p. 71. R.T.N.U., vol. 610, p. 205. J.P. QUNEUDEC, Le Statut international des espaces el les armes, in Le Droit international et les armes, Journes de la Socit franaise pour le Droit International, Montpellier 1982, Pedone, 1983, pp. 250 et s.

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comprhensible que les Etats naient pas pu accepter linterdiction, par cette convention, des activits militaires en mer, alors quils comptent et cela fermement sur la mer comme thtre de guerre. En outre, il ressort de la Convention elle-mme que les activits militaires ne sont pas interdites en mer: les rgles relatives la navigation et au survol concernent galement les avions et les navires de guerre; dans tes dispositions sur le rglement des diffrends, une disposition spciale se rapporte aux diffrends relatifs des activits militaires (art. 298, par. 1, b). Cela veut-il dire alors que lutilisation des mers des fins pacifiques est un simple slogan dans la Convention, qui nentrane aucune consquence quant au comportement des Etats? La signification de cette notion se trouve dfinie lart. 301 de la Convention:
Dans lexercice de leurs droits et lexcution de leurs obligations en vertu de la Convention, les Etats Parties sabstiennent de recourir la menace ou lemploi de la force contre lintgrit territoriale ou lindpendance politique de tout Etat, ou de toute autre manire incompatible avec les principes du droit international noncs dans la Charte des Nations Unies.

Comme consquence de cette disposition, on peut dire que le principe de laffectation de la mer des fins pacifiques dans les rapports entre les Etats riverains na, dans le droit de la mer, que le sens dune application formelle de certains principes de base du droit international gnral et de la Charte des Nations Unies. Il ne restreint expressment aucune activit militaire en mer. Des limitations concrtes lutilisation de la mer des fins militaires peuvent, en revanche, tre introduites par des accords internationaux (comme la prvu la Dclaration sur les fonds marins de 1970, et comme la traduit dans les faits le trait interdisant de placer des armes nuclaires et dautres armes de destruction massive sur le fond des mers et des ocans, ainsi que dans leur sous-sol, ouvert la signature le 11 fvrier 1971;4 elles peuvent aussi dcouler du droit coutumier (par exemple linterdiction des essais nuclaires en haute mer). C. Zones de paix

1. Initiatives Paralllement ladoption dans le droit de la mer du principe de laffectation des fins pacifiques, des efforts ont t dploys afin que certaines rgions et surtout des espaces marins soient proclams zones de paix. Les raisons de ces initiatives sont les mmes que celles qui ont conduit la plupart des pays insister la troisime Confrence des Nation Unies sur le droit de la mer sur le principe de lutilisation des fins pacifiques: on souhaite empcher la militarisation de la mer et de son sous-sol (en dpit et en raison dune intensit croissante de cette militarisation), de mme que la confrontation, de plus

Texte dans R.G.D.I.P., 1971, p. 387.

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161

en plus dangereuse, des flottes militaires des grandes puissances, laquelle stend quasiment toutes les mers. Cette identit de motifs fait natre aussi les mmes difficults dans la mise en uvre de lide: la proclamation dune zone de paix sur la mer se heurte dnormes difficults, car les grandes puissances ne sont pas disposes retirer leurs marines de guerre ni, pour des raisons stratgiques, les confiner dans une partie quelconque de la mer. 2. Locan Indien Actuellement, locan Indien est lunique zone de paix, proclame telle seulement par une Dclaration contenue dans la rsolution 2832 (XXVI), du 16 dcembre 1971, de lAssemble gnrale des Nations Unies. Selon cette Dclaration, locan Indien ainsi que lespace arien surjacent et les fonds marins sous-jacents sont dsigns pour toujours comme zone de paix. Pendant les travaux du Comit ad hoc de locan Indien (cr en 1973), les principes de la Dclaration ont t modifis et complts, de sorte quils comportent aujourdhui: larrt du processus descalade et dexpansion de la prsence militaire des grandes puissances, llimination des bases et autres installations militaires des grandes puissances, la dnuclarisation, le non-recours la force et le rglement pacifique des diffrends, linterdiction de recours la menace ou lemploi de la force de la part des navires de guerre ou des avions contre la souverainet, lintgrit territoriale ou lindpendance des Etats du littoral et de larrire-pays, lutilisation libre et sans entrave de la zone de locan Indien par les navires de tous les pays conformment aux normes et principes du droit international.5 En vue de la mise en uvre de ces principes, les pays riverains et ceux de larrirepays ont demand la convocation dune confrence sur locan Indien qui dfinirait les mesures prendre pour lapplication des principes de la Dclaration de lAssemble gnrale. Jusqu prsent, les grandes puissances ont vite la convocation de cette confrence, prvue cependant pour 1985 ( Sri Lanka). La septime Confrence des Chefs dEtat ou de gouvernement des pays non aligns, qui sest tenue New Delhi en mars 1983, sest prononce une fois de plus pour la dsignation de locan Indien comme une zone de paix, elle a condamn vigoureusement lescalade de la rivalit des grandes puissances dans cet ocan et elle a invit tous les pays contribuer au succs de la Confrence de Sri Lanka.6 3. La Mditerrane Bien avant locan Indien et avec beaucoup plus dintensit, la mer Mditerrane est devenue un lieu de confrontation des flottes des deux blocs. Quant cette mer, des ides

5 6

Cf. H.L. LABROUSSE, Locan Indien zone de paix, Le Droit international et les armes, op. cit., pp. 258 et s. Medunarodna politika, 1983, no 792, p. 27.

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et des propositions apparaissent qui ont pour but la rduction des forces armes dans la rgion, la diminution des tensions, la solution pacifique des diffrends et le dveloppement de la coopration entre les pays riverains. Conscients du lien qui existe entre la paix et la scurit en Europe et en Mditerrane, les Etats participants la Confrence sur la scurit et la coopration en Europe ont adopt, dans lActe Final de la Confrence, une partie spciale consacre aux Questions relatives la scurit et la coopration en Mditerrane. La proclamation de la Mditerrane comme zone de paix est galement propose ces dernires annes; ainsi, la septime Confrence au sommet des non-aligns a soutenu leffort des Nations Unies tendant transformer la Mditerrane en zone de paix et de coopration.7 Ce concept de zone de paix (en gnral et plus particulirement en mer) est encore beaucoup moins prcis aujourdhui que ne le sont les notions de zone dmilitarise ou de zone dnuclarise, dont nous parlons plus loin. Le contenu du rgime de chaque zone particulire sera dfini par le document international qui tablit une telle zone. Nanmoins, pour quune zone de paix sur des mers et des ocans mrite ce nom, le document par lequel elle est cre devrait reprendre au moins les principes noncs par la rsolution 2832 (XXVI) de lAssemble gnrale relative locan Indien.

1.2.

La mer et la stratgie contemporaine

1. Introduction Ds quil eut mis au point les moyens de navigation, lhomme commena utiliser la mer comme thtre de guerre. Les marines de guerre sy affrontaient au cours de combats navals; elles servaient galement au transport de troupes en terre trangre. Au cours des sicles, lutilisation de la mer des fins militaires est devenue de plus en plus varie: on empche ladversaire dexploiter les richesses de la mer, on lempche dutiliser la mer pour le transport, et on empche aussi les neutres de maintenir avec lui des relations commerciales et de transport. Cependant, la force militaire est employe sur la mer non seulement des fins strictement belliqueuses, mais encore en vue de lapplication dune politique de puissance et de pression en temps de paix. Les marines de guerre ont pour tche de faciliter par leur prsence les conqutes coloniales et dtablir des sphres dintrts, de maintenir en place les gouvernements amis et daider renverser les rgimes ennemis, dimpressionner et de tenir en tat de subordination les petits Etats ctiers, dassurer leurs propres communications maritimes, etc.

Ibid., p. 32.

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2. La stratgie navale daujourdhui Contrairement ce que pourrait laisser prvoir lintense dveloppement de laviation, limportance des marines de guerre est aujourdhui plus grande que jamais; un nombre croissant dEtats possdent des forces navales de plus en plus puissantes, quils sont toujours prts employer. Toutefois, le danger essentiel provient de ce que les grandes puissances maritimes sont dotes darmements nuclaires et que les superpuissances fondent, en bonne partie, leur conception de lquilibre des forces sur leur capacit nuclaire maritime.8 Des missiles stratgiques nuclaires sont installs sur les sous-marins nuclaires, et les grandes puissances estiment que cette partie de leur arsenal nuclaire est moins vulnrable que celle qui est installe sur la terre ferme. Cette apprciation vaut toujours, car il nexiste pas encore de moyen de dtection des sous-marins toutes les profondeurs. Un sous-marin dans les profondeurs des ocans est, affirm-t-on, le moyen de dissuasion le plus efficace contre une attaque nuclaire. Toutefois, comme les grandes puissances ne souhaitent, de par leur nature mme, ni lquilibre nuclaire ni aucun autre quilibre, elles sempressent de nos jours de perfectionner leurs moyens de dtection et de destruction des sous-marins et construisent, paralllement, une panoplie toujours plus grande de nouveaux armements nuclaires, en mettant au point ceux quelles possdent dj. Les sous-marins sont de moins en moins tributaires de leur propre capacit de faire surface et de retourner leur base, et les missiles ont un nombre croissant de ttes nuclaires susceptibles dtre dirigies de faon indpendante sur des objectifs diffrents. En plus des sous-marins se dveloppent des installations qui peuvent tre places directement sur le fond des mers et des ocans ou dans leur sous-sol.9

1.3.

Le droit de la mer et les activits militaires

En parlant de lutilisation de la mer des fins pacifiques, nous avons dj mentionn la caractristique fondamentale du droit de la mer au point de vue des activits militaires, savoir le faible nombre de rgles particulires qui rgissent ces activits. La Convention des Nations Unies sur le droit de la mer contient, certes, un peu plus de dispositions sur ce point que les Conventions de Genve de 1958, mais lon ne pourrait dire quelle a clairci toutes les questions essentielles de lutilisation des espaces marins aux fins

M.T. KLARE, Superpower Rivalry at Sea, Foreign Policy, 1975-76, no 21, p. 86 et s.; S. TURNER, The Naval Balance: Not Just a Numbers Game, Foreign Affairs, 1977, no 2, pp. 339 et s.; G.J. MANGONE, Marine Policy for America, 1977, pp. 43-73. Voir: Tactical and Strategic Antisubmarine Warfare, S.I.P.R.I., 1974; Armaments and Disarmament in the Nuclear Age, S.I.P.R.I., 1976, pp. 90-96; sur le rle du droit: D.P. OCONNELL, The Influence of Law on Sea Power, 1975; World Armaments and Disarmament, S.I.P.R.I. Yearbook 1979, pp. 329-452; D. LARSON and P. TARPGAARD, Law of the sea and A.S.W.: national security versus arms control, Marine policy, 1982, no 2, pp. 90-102.

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militaires.10 Vu linsuffisance du droit conventionnel gnral, nous devons souvent essayer de trouver les rponses dans le droit coutumier ainsi que dans les traits internationaux qui rgissent certaines questions particulires, de porte restreinte. A. Navires de guerre

1. Dfinition La dfinition du navire de guerre de la Convention de Genve sur la haute mer (art. 8, par. 2) a t reprise, avec de lgres modifications, dans la Convention des Nations Unies sur le droit de la mer (art. 29). Par navire de guerre on entend tout navire qui fait partie des forces armes dun Etat, qui porte les marques extrieures distinctives des navires de guerre de sa nationalit, qui est plac sous le commandement dun officier de marine au service de cet Etat, et dont lquipage est soumis aux rgles de la discipline militaire. Cependant, la diffrence de la codification de Genve, alors que cette dfinition ne concernait que la haute mer, elle sapplique dsormais lensemble de la matire rgie par la nouvelle convention. Cette dfinition restrictive du navire de guerre, sur la base de quatre lments formels, trouve son origine dans le souhait que le statut de navire de guerre, lequel a certains droits particuliers en haute mer, soit accord un nombre aussi restreint que possible de navires, savoir seulement ceux pour lesquels leurs Etats remplissent toutes les conditions formelles requises par le droit international. Ladite dfinition est valable dans toute partie de la mer o se trouve le navire, y inclus les lieux o les btiments de guerre, en raison de leur affectation, jouissent de moins de droits que les autres navires. Il sensuit donc quen dfinissant les navires de guerre, on naurait pas d se fonder seulement sur des caractristiques formelles du navire, telles que le commandant et son quipage. Dans les rapports du navire de guerre avec lEtat ctier dans la mer territoriale duquel il se trouve, la mission queffectue le navire de guerre joue un rle essentiel pour la dtermination de son statut. Aussi aurait-il t opportun, nous semble-t-il, que la Confrence et insr galement dans la dfinition le caractre rel, fonctionnel, du navire, savoir son appartenance effective la marine de guerre dun Etat ou mme, plus prcisment, son affectation une mission militaire (existence dquipements particuliers faisant prsager une telle mission). 2. Immunits La Convention sur le droit de la mer confirme les immunits des navires de guerre en ce qui concerne le passage inoffensif dans la mer territoriale, en haute mer et dans la zone conomique exclusive (art. 32 et 95).

10

Voir: Security Aspects in the Law of the Sea Debate, World Armaments and Disarmament, S.I.P.R.I. Yearbook 1975, pp. 593-603; Military Issues in the Law of the Sea, Law of the Sea: Neglected Issues, Proceedings Law of the Sea Institute Twelfth Annual Conference, octobre 23-26, 1978, La Haye, 1979, pp. 325-421.

VII MILITARY USES OF THE SEA

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Dans le cadre des dispositions relatives la protection et la prservation du milieu marin, il est prvu que celles-ci ne sappliquent pas aux navires de guerre. Cependant, on demande aux Etats de prendre des mesures appropries naffectant pas les oprations ou la capacit oprationnelle de ces navires de faon ce que ceux-ci agissent, autant que faire se peut, dune manire compatible avec la Convention (art. 236). Enfin, malgr limmunit des navires de guerre, lEtat du pavillon porte la responsabilit internationale de toute perte ou de tout dommage caus par son navire de guerre. Ce principe est explicitement mentionn dans la Convention propos du passage inoffensif (art. 31), mais il est valable galement lgard de toutes autres activits. B. Activits militaires

1. Navigation et manuvres navales La constatation selon laquelle beaucoup de questions restent ouvertes dans la Convention sur le droit de la mer de 1982 vaut prcisment en ce qui concerne la navigation des navires de guerre. Les dbats de la Confrence, de mme que les dispositions de la partie II, section 3, de la Convention, donnent limpression que la troisime Confrence des Nations Unies sur le droit de la mer a t plus explicite que la premire Confrence, en confirmant que les navires de guerre, tout comme les navires de commerce, jouissent du droit de passage inoffensif dans la mer territoriale. Toutefois, les prises de position, les propositions et les dclarations finales de beaucoup dEtats ctiers confirment quil existe des diffrences dinterprtation de la Convention quant au droit dun Etat ctier de soumettre autorisation ou une notification pralable le passage des navires de guerre trangers.11 En ce qui concerne le passage en transit dans les dtroits servant la navigation internationale, il na pas t rpondu de faon prcise la question du droit des sousmarins de naviguer en plonge.12 De plus, on na pas non plus donn une dfinition claire et nette des dtroits auxquels sapplique le rgime du passage inoffensif. La libert de navigation de tous les navires, y compris les navires de guerre, est clairement confirme dans la Convention pour la zone conomique exclusive. Inclut-elle cependant aussi le droit de la marine de guerre de faire des manuvres navales dans

11

12

Voir les interventions: Roumanie (A/CONF.62/PV.189), Ymen dmocratique et Ymen, doc. (XXI.6) C.N.7. 1983, Treaties-1 (Annex B), manant du Secrtariat dmocratique populaire de Core (A/CONF.62/PV.192), et les dclarations faites loccasion de la signature de la Convention Montego Bay (Jamaque), le 10 dcembre 1982, par les dlgations de Cap-Vert, Finlande, Iran, Roumanie, Soudan, Sude et Ymen, doc. (XXI.6) C.N.7. 1983, Treaties-1 (Annex B), manant du Secrtariat gnral des Nations Unies en sa qualit de dpositaire. Voir la discussion sur la navigation des sous-marins travers les dtroits entre W.M. REISMAN, The regime of Straits and National Security: an Appraisal of International Law, et J. NORTON MOORE, The Regime of Straits and the Third United Nations Conference on the Law of the Sea, A.J.I.L., 1980, no 1, pp. 48-121.

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une zone conomique trangre? Certains commentateurs dduisent lexistence de ce droit de la disposition de lart. 58, par. 1, de la Convention, selon laquelle, outre les liberts de navigation et de survol, est galement garantie la libert dutiliser la mer dautres fins internationalement licites lies lexercice de ces liberts et compatibles avec les autres dispositions de la Convention.13 Cependant, lors de la signature de la Convention, certains Etats riverains ont dclar quils nacceptaient pas cette interprtation de lart. 58 et quils nautoriseraient pas de manuvres navales dans leur zones conomique exclusive.14 Pour ce qui est de la haute mer, on na pas encore rsolu le problme de la lgalit des manuvres navales, ainsi que du lancement de missiles, en ce que ceux-ci empchent lutilisation de grandes parties de la haute mer par dautres Etats.15 Bien quil ny ait pas de rgles ni de dispositions explicites conventionnelles rgissant linterdiction des essais nuclaires en haute mer, nous sommes persuades que cette interdiction existe en tant que principe coutumier (voir plus loin, section II, sous-section IV, division B). 2. Installations et ouvrages dans la zone conomique exclusive Les rgles concernant la zone conomique exclusive renferment une imprcision dans le cas des installations et ouvrages envisags dans cette zone. En effet, en vertu de lart. 60, para. 1, lEtat ctier a le droit exclusif de procder la construction et dautoriser et rglementer la construction de toutes les les artificielles. Cependant, pour ce qui est des installations et ouvrages, lEtat ctier a ce droit exclusif seulement lorsque ces installations et ouvrages sont affects aux fins prvues larticle 56 ou dautres fins conomiques ou pouvant entraver lexercice des droits de lEtat ctier dans la zone. Estimant que le principe ainsi formul pourrait laisser des pays tiers la possibilit de construire dans la zone dun autre Etat sans lautorisation de celui-ci des installations et ouvrages des fins militaires, certains Etats ctiers ont propos de donner lEtat ctier le droit exclusif lgard de tous ouvrages et installations, comme dans le cas des les artificielles.16 Certaines puissances maritimes se sont opposes cette modification, et la vhmence avec laquelle elles ont repouss le changement de lart. 60, par. 1, prouve quelles nexcluent pas la possibilit driger des installations ou ouvrages des fins militaires dans des zones conomiques trangres.

13

14 15

16

Voir T. TREVES, Le nouveau rgime des espaces marins et la circulation des navires, rapport pour la Confrence Les institutions face aux nouvelles donnes de la prsence en mer, Paris, 26-27-28 mai 1983, p. 20. Voir les dclarations du Brsil, du Cap-Vert et de lUruguay, doc. cit supra note 11. Cf. Ch. ROUSSEAU, Droit international public, t. IV, Les relations internationales, 1980, pp. 315 et s.; O.L. LISSITZYN, Electronic Reconnaissance from the High Seas and International Law, U.S. Naval War College International Law Studies, vol. 61, 1980, pp. 563-571. Voir les propositions officieuses du Prou (C.2/Informal Meeting/9), du Brsil et de lUruguay (C.2/Informal Meeting/11), du 27 avril 1978.

VII MILITARY USES OF THE SEA

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3. Recherche scientifique marine Le principe gnral de la Convention selon lequel la recherche scientifique marine doit tre mene des fins exclusivement pacifiques (art. 240, a) se trouve rpt dans les art. 246 et 143 propos de la recherche scientifique dans la zone conomique exclusive, sur le plateau continental et dans la Zone. Lapplication du principe de la recherche scientifique des fins pacifiques ne signifie pas ncessairement linterdiction de lemploi de personnel ou de matriel militaire pour les recherches scientifiques. Il est cependant clair que la prsence de personnel ou de matriel militaire sera une raison permettant un Etat ctier de refuser son consentement lexcution dun projet de recherche scientifique par un autre Etat ou par une organisation internationale dans sa zone conomique ou sur son plateau continental. 4. Rglement des diffrends En ce qui concerne les diffrends relatifs des activits militaires, y compris les activits militaires des navires et aronefs dEtats utiliss pour un service non commercial, les Etats ont le droit de ne pas accepter les procdures de rglement des diffrends aboutissant des dcisions obligatoires (art. 298, par. 1, b). Cette disposition laisse cependant ouverte la question de savoir si la navigation pratique par un navire de guerre est une activit militaire.

2. 2.1

LE DESARMEMENT ET LA MAITRISE DES ARMEMENTS NAVALS Apercu historique

A. Le XIXme sicle Premires limitations de la guerre Le XIXme sicle, marqu, dune part, par de nombreuses guerres opposant les grandes puissances pour la domination de lEurope et le partage des colonies et, dautre part, par des tentatives armes des peuples opprims pour secouer le joug des grands, voit les ides et les mouvements contre la guerre se faire jour. Les ides pacifistes conduisent la fondation de lInstitut de Droit International et de lInternational Law Association (1873), alors que les tmoignages sur les souffrances des victimes de la guerre donnent lieu aux premires confrences internationales ayant pour but de rglementer la guerre (Genve, 1864 et 1868; Saint-Ptersbourg, 1868; Bruxelles, 1874). Les rgles adoptes ces confrences se portent aussi, en partie, sur la guerre maritime (par ex. la Dclaration de Saint-Ptersbourg du 11 dcembre 1868 sur lemploi des balles explosives).17 Cependant, la tentative pour adapter la guerre maritime les rgles de la Convention de Genve

17

Texte dans Les deux Confrences de la Paix, Rousseau, 1909, pp. 193-4.

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11 RESTRICTIONS DES UTILISATIONS DE LA MER DES FINS MILITAIRES

du 22 aot 1864 sur lamlioration du sort des blesss dans les armes en campagne choua.18 Il convient de mentionner galement dans le cadre de ce chapitre que quelques traits dont on parlera plus loin conclus au XIXme sicle avaient pour but dexclure la guerre de certains espaces maritimes. B. Les Confrences de Paix de La Haye de 1899 et 1907

1. Premire Confrence La rprobation de plus en plus grande de la guerre comme moyen de solution des problmes entre les Etats, ainsi que la forte augmentation des budgets militaires, dpassant les forces conomiques de certaines grandes puissances, aboutirent la premire Confrence de paix de La Haye (1899).19 La Confrence devait examiner: la non-augmentation des effectifs des forces armes de terre et de mer tout comme celle des budgets militaires; linterdiction de mettre au point de nouvelles armes; la limitation de certaines armes existantes; ladaptation de la Convention de Genve de 1864 la guerre maritime; et la solution pacifique des conflits internationaux. A cette confrence fut signe la Convention pour le rglement pacifique des conflits internationaux; de mme furent acceptes de nombreuses rgles concernant le droit de guerre et fut adapte la guerre maritime la Convention de Genve de 1864. Par les Dclarations qui faisaient partie de lActe final de la Confrence, furent interdits le lancement de projectiles et dexplosifs du haut de ballons, lemploi de projectiles ayant pour but unique de rpandre des gaz asphyxiants ou dltres, de mme que lemploi de balles clatant dans le corps humain, mais presque rien ne fut obtenu dans le domaine du dsarmement.20 En dpit de longues dlibrations sur la trve des armements, seuls furent accepts une rsolution recommandant de limiter les charges militaires et un vu invitant les gouvernements envisager la possibilit dune entente en matire de limitation des forces armes de terre et de mer et limiter leurs budgets militaires. Un autre vu exprimait le souhait que les Etats examinent la question de lintroduction de nouveaux types et calibres de fusils et de canons de marine en vue darriver une entente au sujet de ce problme. Les projets proposant la Confrence de sexprimer en faveur de linterdiction de lemploi des torpilles et de certaines catgories de btiments de guerre furent rejets.

18 19

20

Texte dans L. LE FUR et G. CHKLAVER, Recueil des textes de Droit Inlernational Public, 1934, p. 71. H. WEHBERG, La contribution des Confrences de la Paix de La Haye au progrs du droit international, R.C.A.D.I., 1931, t. 37, pp. 533 et s.; J. BROWN SCOTT, Les Confrences de la Paix de ta Haye de 1899 et 1907, t. I et II, 1927. Texte de lActe final dans LE FUR et CHKLAVER, op. cit., pp. 162 et s.

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2. Deuxime Confrence Comme la premire Confrence de La Haye navait pas russi rsoudre tous les problmes considrs, elle proposa dans son Acte final la convocation dune nouvelle confrence. La deuxime Confrence de paix de La Haye, tenue en 1907, fut provoque par laggravation de la situation internationale, par la continuation de la course larmement et par le dclenchement de nouvelles guerres. Elle permit lamlioration de la Convention pour le rglement pacifique des conflits internationaux et ladoption de nouvelles rgles de la guerre sur terre, ainsi que lamlioration de la Convention de 1899 sur lapplication des principes de la Convention de Genve de 1864 la guerre maritime. En ce qui concerne la guerre navale et les autres tches quelle se proposait, la deuxime Confrence de La Haye nobtint quun succs partiel. Par la Xme Convention, les principes de la Convention de Genve de 1906 furent adapts la guerre maritime, mais il ny eut pas daccord gnral sur les rgles de la guerre navale. Toutefois, certaines questions de moindre importance furent rgles: le rgime des navires de commerce ennemis au dbut des hostilits (Convention VI); la transformation des navires de commerce en btiments de guerre (Convention VII); la pose des mines sous-marines automatiques de contact (Convention VIII); le bombardement par des forces navales en temps de guerre (Convention IX); le droit de capture dans la guerre maritime (Convention XI); ltablissement dune Cour internationale des prises (Convention XII). En outre, ont t codifies les rgles sur les droits et les devoirs des puissances neutres en cas de guerre maritime (Convention XIII).21 Toutes les autres questions ayant trait la guerre navale furent rgles dans la Dclaration navale de Londres de 1909. Celle-ci nentra jamais en vigueur, mais elle a toujours t considre comme la codification de la coutume internationale.22 Les Confrences de La Haye ont permis de codifier quelques parties du droit international, y compris les rgles relatives la guerre navale. Mais, dans le domaine du dsarmement, rien ne fut possible. Cest ainsi que la deuxime Confrence adopta seulement une rsolution engageant les gouvernements tudier srieusement la question de la limitation des charges militaires. Les puissances qui dictaient le comportement de la communaut internationale dalors acceptrent les principes qui rgissaient la guerre, mais pas pour autant les restrictions quant au droit de mener la guerre ni les restrictions relatives a larmement. Lorsque la premire guerre mondiale clata, les prparatifs pour la cration du Comit prparatoire dune troisime Confrence de La Haye taient en cours.

21 22

Ibid., pp. 174 et s. Ibid., pp. 263 et s.

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C.

Traits de paix entre 1919 et 1923

1. Trait de Versailles Les Traits de paix conclus avec les puissances centrales la suite de la premire guerre mondiale comprennent bien des limitations quant aux forces militaires des Etats vaincus, dont un certain nombre se rapportent aux forces navales, aux installations militaires et aux ctes des Etats ayant perdu la guerre.23 Cest ainsi que lon y trouve des clauses sur la limitation des effectifs de la marine de guerre, sur le nombre, le dplacement et la catgorie des btiments, de mme que sur la dmilitarisation de certaines les et de certains espaces ctiers. En vertu de Trait de paix sign Versailles le 28 juin 1919,24 on fixa lAllemagne le nombre maximum de divers types de navires quelle pouvait possder, le dplacement maximum dans le cas de remplacement des btiments existants, les dlais pour ce remplacement. LAllemagne fut prive de sous-marins, mme de commerce. Les principales puissances allies et associes devaient dcider de la quantit permise darmes, de munitions et de matriel de guerre des navires. Afin dassurer laccs dans la Baltique tous les Etats, une zone fut dtermine, avec des coordonnes gographiques prcises, dans laquelle lAllemagne ne pouvait possder aucune fortification, ni avoir aucune artillerie commandant les routes maritimes entre la mer du Nord et la Baltique. En outre, la construction de nouvelles fortifications fut interdite et larmement de celles qui existaient dj fut rduit dans toute la zone ctire sur une profondeur de 50 km, ainsi que sur les les allemandes du littoral. 2. Autres traits de paix En vertu du Trait de paix sign avec les Allis Saint-Germain en Laye le 10 septembre 1919,25 lAutriche tait devenue un pays sans littoral; elle fut aussi prive de tous ses navires de guerre. Certains croiseurs auxiliaires et btiments auxiliaires, une fois dsarms, purent tre utiliss comme navires de commerce. La Hongrie, deuxime Etat sans littoral et ne la suite de la dissolution de lAutriche-Hongrie (Trait de paix conclu le 4 juin 1920 Trianon),26 dut se soumettre des clauses presque identiques celles acceptes par lAutriche. En vertu du Trait de paix sign le 27 novembre 1919 Neuilly,27 la Bulgarie fut prive de tous ses navires

23 24 25 26 27

S. VEROSTA, Peace Treaties after World War I, in Encyclopedia of Public International Law, t. 4, 1982, pp. 110 et s. Texte dans LE FUR et CHKLAVER, op. cit., pp. 297 et s. Voir E. von PUTTKAMER, Versailles Peace Treaty (1919), Encyclopedia of Public International Law, t. 4, pp. 276 et s. Texte (abrg) dans C.-A. COLLIARD, Droit international et histoire diplomatique, Documents choisis, 3e d., t. I, 1955, pp. 474 et s. Texte (abrg) dans COLLIARD, op. cit., pp. 501 et s. Texte (abrg) dans COLLIARD, op. cit., pp. 493 et s.

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de guerre, except un petit nombre indispensable au contrle du trafic sur le Danube. Le Trait de paix avec la Turquie fut sign le 24 juillet 1923 Lausanne.28 En vertu de larticle 13 de ce trait, le groupe dles de la mer Ege appartenant la Grce fut dmilitaris. D. Socit des nations

1. Le Pacte Dans le Pacte de la Socit des Nations, les Etats membres soutenaient que le maintien de la paix exigeait la rduction des armements au minimum compatible avec la scurit nationale et avec lexcution des obligations internationales imposes par une action commune (art. 8, par. 1). En vue de raliser les tches dans le domaine de la rduction de larmement et du dsarmement, plusieurs comits furent crs au sein de la Socit. Ds 1925, on prpara galement une Confrence pour le dsarmement. Celle-ci se runit finalement en 1932, mais fut suspendue sans avoir abouti un rsultat. 2. Trait de Washington Contrairement lchec au sein de la Socit des Nations, un accord provisoire fut obtenu en dehors delle quant aux restrictions de larmement naval des puissances maritimes. Le trait conclu Washington le 6 fvrier 192229 limita le tonnage total des marines de guerre des cinq Etats contractants: la France, lItalie, le Japon, la Grande-Bretagne et les Etats-Unis, et dtermina la proportion du tonnage de leur flottes, fixa les limites de larmement ainsi que le dplacement permis certains types de navires. Les limites dcides Washington furent considres comme un grand succs du pacifisme et un pas srieux sur la voie de dsarmement. Cependant, tout cela fut possible principalement parce que ces mesures convenaient certaines puissances maritimes puises sur le plan financier aprs la premire guerre mondiale et, qui plus est, parce que ces limites donnaient la possibilit de sorienter vers des navires de guerre plus petits, plus efficaces et plus rapides. Les limites arrtes Washington et dans certains autres traits de cette poque nempchrent pas les desseins agressifs de se manifester: le Japon dnonca le Trait le 29 dcembre 1934 et se mit construire une grande marine de guerre.30 Il fut prouv au procs de Nuremberg que lAllemagne avait viol, elle aussi, les engagements accepts. Certains traits sur la guerre navale ont eu une importance plus durable. Un trait sur ce sujet galement conclu Washington le 6 fvrier 192231 ne fut pas ratifi, mais

28 29 30 31

Texte dans LE FUR et CHKLAVER, op. cit., pp. 752 et s. Texte dans LE FUR et CHKLAVER, op. cit., pp. 714 et s. Voir C.J. COLOMBOS, The International Law of the Sea, 5e d., 1962, p. 24. Texte dans M.O. HUDSON, International Legislation, vol. II, 1931, pp. 794 et s.

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le Protocole de Londres, du 6 novembre 1936, concernant les rgles de la guerre sousmarine32 reprsente encore aujourdhui le droit positif. Le Protocole de Genve, du 17 juin 1925, concernant la prohibition de lemploi la guerre de gaz asphyxiants, toxiques ou similaires et de moyens bactriologiques33 se rapporte galement la guerre navale. E. Traits de paix de 1947

1. Clauses navales Les traits de paix conclus aprs la deuxime guerre mondiale (Paris, 10 fvrier 1947) comportent toute une srie de clauses limitant de diverses faons les droits des Etats vaincus en ce qui concerne lusage de la mer aux fins militaires. Ces limitations touchent le plus souvent les marines de guerre des pays en question, mais aussi des parties de leur territoire, y compris des espaces maritimes.34 Dans les traits conclus avec la Bulgarie, la Finlande et la Roumanie,35 on souligne que larmement maritime (tout comme larmement terrestre et arien), de mme que les fortifications, se limitent aux tches dordre intrieur et la dfense locale des frontires. Les effectifs maximums de la marine de guerre et le tonnage total des navires y sont prciss: pour la Bulgarie 3 500 personnes et 7 250 tonnes, la Finlande 4 500 personnes et 10 000 tonnes, la Roumanie 5 000 personnes et 1 500 tonnes. On interdit ces Etats de possder, de construire ou dessayer aucune arme atomique, aucun projectile automoteur ou dirig, ni aucun dispositif employ pour le lancement de ces projectiles autre que les torpilles ou dispositifs de lancement de torpilles faisant partie de larmement normal des navires autoriss par le prsent Trait, aucune mine marine ou torpille fonctionnant par un mcanisme influence, aucune torpille humaine, aucun sous-marin ou autre btiment submersible, aucune vedette lance-torpille, ni aucun type spcialis de btiment dassaut (art. 13 du Trait avec la Bulgarie). Quant aux autres moyens de guerre et larmement, les trois Etats se limitent aux quantits ncessaires lquipement de leurs forces maritimes. 2. Trait de Paix avec lItalie En ce qui concerne lItalie,36 les effectifs de la marine de guerre furent fixs 25 000 officiers et marins. Dans lannexe XII du Trait, on citait les btiments de guerre que lItalie pouvait conserver, les autres devant tre remis aux Alis. A ce pays il fut aussi interdit de possder des armes atomiques ainsi que les autres armes mentionnes dans

32 33 34 35 36

Texte dans HUDSON, op. cit., vol. VII, 1941, pp. 490 et s. R.T.S.N., vol. XCIV, p. 65, et J.O.R.F., 29 aot 1928, p. 9807. Sur les clauses militaires des Traits de paix, voir G.G. FITZMAURICE, The juridical clauses of the peace treaties, R.C.A.D.I., 1948, t. 73, pp. 318-323. R.T.N.U., vol. 41, p. 21; vol. 48, p. 203; vol. 42, p. 3. R.T.N U., vol. 49, p. 3.

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les traits avec les autres trois pays, cette diffrence prs que ces pays ne pouvaient possder aucun sous-marin ou autre btiment submersible, aucune vedette lance-torpille, ni aucun type spcialis de btiment dassaut, tandis quon interdisait lItalie les canons dune porte suprieure 30 kilomtres. LItalie sengagea dmilitariser certaines les et dmilitariser partiellement son territoire le long de sa frontire avec la France et avec la Yougoslavie. Elle fut oblige de dmilitariser une bande ctire prs de la frontire avec ces Etats, pour ne pas mettre en danger leur territoire et leurs eaux territoriales. En Sicile et en Sardaigne, des mesures de dmilitarisation furent aussi dcides; par exemple, des mesures touchant lartillerie de dfense des ctes de la Sardaigne furent prises en vue de la protection des eaux territoriales franaises. Le territoire libre de Trieste fut aussi dmilitaris et proclam neutre. Il tait prvu que toutes les clauses navales demeureraient en vigueur aussi longtemps quelles ne seraient pas modifies partiellement ou entirement par un accord entre les Puissances Allies et Associes et lEtat en question ou bien par un accord entre ce dernier et le Conseil de scurit, aprs laccs de cet Etat aux Nations Unies. Aucun accord ne fut jamais conclu dans aucune de ces catgories. Ajoutons que lItalie, avec lapprobation de ses nouveaux allis de lO.T.A.N., se considre, depuis 1951, comme libre de toutes les limitations militaires (et navales) imposes par ledit trait de paix.37 F. Nations unies

1. La Charte Le maintien de la paix et de la scurit internationale dans la nouvelle organisation mondiale devait se fonder sur laction commune des Etats membres, pouvant impliquer lemploi de la force sous la direction du Conseil de scurit. Paralllement cette mission principale, le Conseil de scurit a pour tche dlaborer, avec laide du Comit dtatmajor, des plans de rglementation des armements et de dsarmement ventuel. En ce qui concerne lAssemble gnrale, il est dit dans la Charte quelle peut tudier les principes gnraux rgissant le dsarmement et la rglementation de larmement et faire des recommandations aux Membres de lOrganisation et au Conseil de scurit dans ce domaine.

37

Voir les changes de notes entre lItalie et la Grande-Bretagne (R.T.N.U., vol. 121, p. 89), la Nouvelle-Zlande (R.T.N.U., vol. 150, p. 157), les Etats-Unis (R.T.N.U., vol. 167, p. 163) et lAustralie (R.T.N.U., vol. 190, p. 222). Cf. G. VEDOVATO, La revisione del Trattato di Pace con lItalia, Rivista di Studi Politici Internazionali, 1974, no 3, 375 et s.

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2. Les rsultats En dpit de la participation de nombreux organes des Nations Unies aux activits touchant le dsarmement, y compris les deux sessions spciales de lAssemble gnrale consacres aux problmes du dsarmement, les rsultats en sont trs modestes. Ils le restent mme si lon y associe les rsultats des ngociations des Etats membres qui ont t obtenus en dehors de lOrganisation. Qui plus est, il est possible de conclure que, prcisment lpoque des Nations Unies, lhumanit sest montre absolument incapable de contrler son armement. Mme si on tablit une comparaison avec les tapes prcdents, le bilan se montre tragiquement pauvre dans ce domaine: La course larmement le plus moderne nest plus seulement lobsession des grandes puissances ou des Etats particulirement agressifs ou menacs. La grande majorit des Etats sarment jusquaux limites extrmes de leurs forces conomiques et, souvent aids par des allis, au-del mme de leurs possibilits relles. Cest pourquoi un nombre dhommes et de moyens matriels toujours grandissant est consacr au renforcement de larmement, ce qui paralyse la communaut internationale dans son dveloppement. A ct de larmement classique, larmement nuclaire est, notre poque, dj trs dvelopp et parfois employ. Lutilisation isole de ces armes provoque dj des souffrances inimaginables jusqu nos jours; une vritable guerre nuclaire reprsenterait, elle, la fin de la civilisation et peut-tre mme de notre plante. Dans la rivalit stratgique, qui existe avant tout entre les superpuissances, tous les endroits de la terre sont exploits sa surface, son sous-sol, ses mers, sa couche atmosphrique, et la course larmement se poursuit mme dans lespace extraatmosphrique. Dans le cadre de ce chapitre, il convient surtout de souligner que lquilibre des grandes puissances est fond actuellement essentiellement sur les missiles nuclaires installs bord de sous-marins cachs dans les profondeurs ocaniques.

En raison du caractre inquitant de ces dveloppements, les textes de droit international labors dans le cadre des Nations Unies et limitant certaines formes de la course larmement doivent tre considrs comme vritablement insignifiants. Les rsolutions des Nations Unies sur ces questions sont trs nombreuses mais sont encore plus ignores par les grandes puissances que les rsolutions adoptes dans dautres domaines, tandis que les traits dont on parle plus loin ne sont ratifis, le plus souvent, que par les Etats dont les efforts en vue de sarmer ne sont pas limits par la teneur des accords en question. A ct du travail accompli par lOrganisation des Nations Unies, il faut toutefois noter de nouvelles conventions sur le droit humanitaire (Genve, 12 aot 1949),38

38

R.T.N.U., vol. 75, p. 31.

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labores sous lgide de la Croix-Rouge. Ces conventions ont t modifies et compltes par deux protocoles, signs Berne le 12 dcembre 1977.39 Lpoque des ngociations et de la dtente entre les grandes puissances eut pour rsultat la conclusion daccords bilatraux entre lUnion sovitique et les Etats-Unis, parmi lesquels les accords S.A L.T. sont estims comme les plus importants. La priode de la dtente aboutit la Confrence sur la scurit et la coopration en Europe, dont lActe final (Helsinki, 1er aot 1975) promettait beaucoup en matire de limitation de la menace de guerre. Malheureusement, cet Acte solennel na pu empcher les blocs militaires denterrer la dtente peu aprs sa signature, de recommencer la guerre froide et de conduire lhumanit presque au seuil de la guerre.

2.2. A.

Sources du droit Les traits internationaux

1. Les Traits et les grandes puissances Dans cette partie du droit de la mer comme dailleurs dans tous les domaines du droit international les traits internationaux prsentent des traits spcifiques qui se rencontrent moins frquemment dans dautres matires. Ainsi, une place part revient, dans ltablissement de ces traits, aux puissances militaires et en particulier aux puissances nuclaires. Elles rglent souvent par des conventions bilatrales des questions de fond intressant dautres Etats; le contenu de bien des traits qui par la suite constitueront des conventions multilatrales est ngoci exclusivement entre les grandes puissances; celles-ci se rservent le droit de contrle et de modification de ces traits; elles se portent garantes des traits dont elles ne seront mme pas parties contractantes, etc. 2. Rgimes objectifs Parmi les traits dont nous aurons nous occuper au prsent chapitre, le problme des effets des traits que la doctrine qualifie de traits rgissant des rgimes objectifs est trs actuel.40 En effet, bon nombre dauteurs, dont la plupart sont des adeptes de la doctrine de Scelle, adoptent le point de vue selon lequel certains traits tablissant pour lobjet quils rglementent un rgime juridique objectif concernent galement les Etats tiers. Sir Humphrey Waldock, rapporteur de la Commission du droit international, avait mme prconis cet gard lintroduction dun article particulier relatif aux rgimes objectifs dans la Convention sur le droit de traits.41

39 40 41

Texte dans la Revue internationale de la Croix-Rouge, 1977, no 704-705, pp. 3 et s. B. VUKAS, Relativno djelovanje medunarodnih ugovora, 1975, pp. 133-150. Doc. A/CN.4/167, pp. 75-76.

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M. Colliard explique les effets de tels traits lgard dEtats tiers par le fait que ces traits constituent un droit assum par un groupe dEtats qui, quant un objet donn, jouent le rle de lgislateur international, si les rgles quils adoptent sont conformes au but propre du droit international et au droit positif objectif.42 Parmi les traits reprsentant des rgimes objectifs, on cite ceux qui ont trait la navigation dans les canaux et les dtroits, la dmilitarisation et la neutralisation et lexploitation despaces marins. Quant aux effets des traits qui, selon la doctrine, reprsentent des rgimes objectifs et dont lintrt nous a paru considrable dans le contexte du prsent chapitre, nous sommes davis quil faut distinguer, dun ct, les traits portant sur des espaces soumis exclusivement la comptence des contractants et, de lautre, les traits par lesquels les parties contractantes se mettent daccord sur le rgime despaces ne relevant pas entirement ou nullement de leur souverainet ou de leur juridiction. Les traits qui dfinissent le rgime dun espace ressortissant la comptence dune ou de plusieurs parties contractantes se fondent sur le droit du souverain territorial de dterminer le statut juridique de son territoire en respectant les rgles du droit international gnral. Les effets de tels traits sur les Etats non contractants doivent tre valus partir des rgles relatives aux dispositions in favorem et in detrimendum tertii. La question se pose diffremment lorsquil sagit des traits par lesquels un groupe dEtats entendent fixer le rgime dun territoire qui nest pas soumis leur juridiction tels que lAntarctique ou la haute mer en Amrique latine. Ces traits sont conclus par un grand nombre dEtats ou, le cas chant, par ceux dont la participation parat la plus importante au regard de lobjet du trait. Cependant, quelle que soit lautorit des parties contractantes et si acceptables que puissent paratre les solutions conventionnelles retenues, on ne saurait affirmer que ces traits lient effectivement un Etat tiers, notamment lorsque celui-ci sy oppose formellement. Lexemple nous est fourni par lopposition de la Chine et de la France, qui refusent de se voir lies par le Trait de Moscou sur linterdiction des essais nuclaires. De tels traits multilatraux qui tendent crer des normes de droit gnral ne peuvent aboutir cette fin que si leur contenu incite la cration dun droit coutumier gnral. B. Les actes unilateraux

Larrt de la Cour internationale de Justice relatif aux essais nuclaires du 20 dcembre 197443 a contribu raffermir la conception de la promesse en tant quacte unilatral gnrateur dobligations internationales.

42 43

C.A. COLLIARD, Institutions internationales, 5e d., 1970, pp. 253-254. C.I.J. Recueil 1974, pp. 253 et s. et 457 et s. Voir J. ANDRASSY, Povodom presude Medunarodnog suda o nuklearnim pokusima, Rad Jugoslavenske akademije znanosti i umjetnosti, 1978, no 375, pp. 5 et s.

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Dans le cas despce, la Cour a confirm la validit de la promesse donne hors de la Cour, mme aprs la clture du dbat oral; elle a valu son srieux et sa porte en tenant compte de plusieurs dclarations dorganes franais visant toutes le mme objectif, savoir la cessation dessais nuclaires dans latmosphre. Dans le cadre des considrations de ce chapitre, un autre acte unilatral considr comme une promesse peut tre cit. Cest la dclaration de lEgypte sur le canal de Suez, du 24 avril 1957.44 Par cette dclaration, lEgypte confirme effectivement les obligations qui lui sont fixes par la Convention de Constantinople de 1888. En outre, elle assume dautres obligations relatives ses actions futures dans le cadre des nouvelles conditions fixes pour la gestion nationale du canal. Finalement, la dclaration de lUnion sovitique faite la deuxime session spciale de lAssemble gnrale consacre au dsarmement au sujet de la renonciation unilatrale de cet Etat employer la premire les armes nuclaires doit aussi tre qualifie de promesse crant une obligation internationale. C. Les actes des organisations internationales et des confrences internationales

1. Rsolutions de lAssemble gnrale des Nations Unies Outre les traits, les organisations internationales et les confrences internationales adoptent diffrents actes qui sont dun intrt primordial dans loptique de la matire dont nous nous occupons. Bien entendu, il se pose galement ici, en premier lieu, la question des rsolutions de lAssemble gnrale, particulirement nombreuses en matire de dsarmement et de limitation des armements. Leur intrt consiste avant tout en ce quelles expriment les positions et les apprhensions de la grande majorit de lhumanit en demandant aux grandes puissances de mettre en uvre diffrentes mesures, savoir: cessation des essais nuclaires, conclusion de traits sur le dsarmement, limitation de larmement nuclaire, tablissement de zones dnuclarises, etc. Il faut cependant noter que de temps autre lAssemble gnrale a formul ses rsolutions sous forme de proclamations nonant les principes de conduite valables tant pour lOrganisation dans son ensemble que pour ses membres. Ainsi, par exemple, elle a proclam linterdiction permanente des armes nuclaires en qualifiant lutilisation de telles armes de crime contre lhumanit. Une telle position de lAssemble gnrale en matire darmes nuclaires est justifie puisque par ces rsolutions elle proclame linterdiction darmes qui sont, notre avis, dj interdites par le droit coutumier. Cependant, tant donn les craintes des Etats, en particulier des grandes puissances, de se voir, sans leur assentiment, imposer des limites dans leurs efforts militaires, il ne serait pas exact daffirmer que les rsolutions de

44

R.T.N.U., vol. 265, p. 299.

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11 RESTRICTIONS DES UTILISATIONS DE LA MER DES FINS MILITAIRES

lAssemble gnrale, mme celles qui sont adoptes une grande majorit, peuvent constituer une source directe du droit international. 2. Acte final de Helsinki Les diffrentes confrences internationales ayant lieu en dehors des Nations Unies adoptent, elles aussi, des documents en matire de dsarmement. A cet gard, lappel lanc par la VIIme Confrence des chefs dEtat et de gouvernement des pays non aligns est particulirement significatif et dramatique. La nature de la plupart de ces actes est claire: ils constituent des concertations politiques, des plans daction des Etats participants ou des appels adresss dautres Etats. Citons cependant lexemple de lActe final de la Confrence sur la scurit et la coopration en Europe, dont la nature a fait lobjet de nombreuses discussions, commencer par la question de savoir sil sagit ou non dun trait international. Bien quil soit vident que les Etats participants la Confrence nont pas eu lintention de conclure un trait international cest pourquoi cet acte ne constitue pas un trait , il nen est pas moins vrai quil contient de nombreuses rgles de droit international. En premier lieu, certaines clauses ne font quexprimer, dclarer le droit international dj existant (par exemple la dclaration sur les principes rgissant les relations mutuelles des Etats participants). Dautres dispositions sont formules de faon constituer une promesse mutuelle donne par les Etats participants sur leur conduite future (p. ex. lobligation de notification pralable des manuvres denvergure). Si lon se rfre larrt de la Cour internationale de Justice qui reconnat quune promesse unilatrale est susceptible de devenir un acte gnrateur dobligations pour lEtat qui a fait la promesse, on na pas de raisons de douter que la possibilit quune telle promesse collective ou mieux un accord non formel dans le cadre dun acte gnral soit considr comme source de droits et dobligations pour les Etats europens. Enfin, lActe final de Helsinki contient galement de nombreuses clauses qui fixent le plan dune action future, les objectifs de la future coopration en Europe, les rgles de conduite des Etats, etc. Beaucoup de ces rgles qui ne sont en fait pas obligatoires sont susceptibles, dans une situation europenne plus favorable, daboutir la cration dun droit coutumier. Cependant, comme le processus la C.S.C.E. se maintient peine en vie, il serait, pour le moment, trop risqu de conclure que lune ou lautre de ces clauses serait dj passe dans le droit coutumier. D. Le droit coutumier

1. Gnralits Que les Etats non contractants puissent accepter les solutions adoptes par un (ou plus dun) trait lgard duquel ils sont tiers, est un fait qui trouve sa confirmation non

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seulement dans la doctrine mais galement dans larrt du Tribunal militaire international de Nuremberg dans une matire voisine de celle qui nous intresse. Par cet arrt, il a t reconnu qu lpoque de son adoption, la IVme Convention de La Haye concernant les lois et coutumes de la guerre sur terre de 1907 constituait un essai de rvision des lois et coutumes gnrales de la guerre existant alors, pour autant que les rgles contenues dans cette convention fussent reconnues en 1939 par toutes les nations civilises, de sorte que ces rgles ont pu tre considres comme une preuve des lois et coutumes de la guerre.45 2. Le dsarmement en mer Dans la matire dont nous nous occupons, il est galement possible que des traits internationaux ou des documents adopts par des organisations internationales donnent naissance du droit coutumier, tant toutefois remarqu que la conclusion selon laquelle, dans un tel cas, un droit coutumier sest effectivement cr doit tre formule avec une circonspection encore plus grande que dans dautres domaines du droit international. En effet, sur le plan de larmement et du dsarmement, les intrts des Etats particuliers et des groupes dEtats sont trs souvent tout fait divergents; les Etats ne cherchent mme pas cacher les diffrences qui les sparent, tant persuads quil sagit de questions fondamentales de leur existence; au contraire, lorsquil est question de matires telles que le droit des traits, le droit diplomatique et mme la protection de lenvironnement ou les droits de lhomme, les intrts de tous les Etats sont moins divergents; mme sil y a diffrence dintrts, les Etats hsiteront sopposer ouvertement aux principes prconiss par la majorit. Cependant, en matire de limitation des armements, la Chine ou la France, par exemple, nont pas hsit rendre publique leur position au sujet des essais nuclaires, position qui a t trs mal accueillie par lopinion mondiale et qui empche que les interdictions prvues dans le Trait de Moscou (1963) puissent tre considres comme faisant partie du droit gnral.

2.3.

Mesures de dsarmement et maitrise des armements navals A. Limitation des effectifs de la marine de guerre et de son armement

1. Introduction La limitation des forces navales a depuis toujours dpendu des grandes puissances. Cellesci imposaient de telles limitations aux Etats moins forts et, de temps autre, elles en acceptaient elles-mmes. Les traits de paix imposent habituellement des limitations aux Etats vaincus, affectant les effectifs des marines de guerre, le nombre, les catgories et le tonnage des navires de guerre ainsi que leur armement et la possibilit de leur rem-

45

Voir L.B. SOHN, Cases and Other Materials on World Law, 1950, p. 1008.

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placement. Dans les traits par lesquels les grandes puissances acceptent mutuellement des limitations, llment essentiel rside dans la proportion respective du tonnage des flottes. Quant aux armes destines la guerre navale, de nombreux traits (dont certains se rapportent galement la guerre sur terre) ont jusqu prsent t conclus et ils sont lexpression des efforts tents en vue de limiter le commerce des armes, dinterdire leur perfectionnement, de rglementer ou mme dinterdire totalement lutilisation de certaines armes, dinterdire enfin toute possession de certaines espces darmes. Toutefois, ces efforts nont que trs incompltement contribu rduire le droit que se reconnaissent les marines de guerre de se munir darmes navales aussi modernes et aussi efficaces que possible et den mettre au point de nouvelles. Dans la prsente division, il sera question uniquement de la limitation de larmement classique; les efforts dploys en vue dune limitation des armes nuclaires feront lobjet dune division particulire. 2. Commerce des armes A lpoque de lexpansion coloniale des puissances europennes dans certains territoires extra-europens, il y eut des tentatives pour rgler et limiter le commerce des armes sur la base de traits internationaux. Cet tat de choses a dur jusqu laccession lindpendance des pays de ces rgions. Ainsi fut rgl par lActe de Bruxelles du 2 juillet 1890 le trafic des armes et des munitions dans certaines rgions dAfrique.46 Les clauses concernant ce trafic furent remplaces par la Convention de Saint-Germain-en-Laye du 10 septembre 1919, relative au contrle du commerce des armes et des munitions.47 Lobjectif principal de cette convention a t dtablir une surveillance spciale du commerce et de la dtention des armes et des munitions sur la quasi-totalit du territoire africain et sur les rgions dAsie o se trouvaient des territoires sous mandat. Le droit des Etats contractants dexercer le contrle stendait galement la haute mer et aux eaux territoriales de la mer Rouge, du golfe dAden, du golfe Persique ainsi que de la mer dOman. Faute dun nombre suffisant de ratifications, la Convention nentra pas en vigueur. Ce fut aussi le cas de la Convention signe Genve le 17 juin 1925,48 qui devait remplacer la Convention de 1919. Actuellement, aprs lcroulement des rapports coloniaux, il nest plus possible quun nombre restreint dEtats limitent larmement dautres Etats. Toutefois, il est regretter quau sein des Nations Unies et dans le cadre des efforts visant au dsarmement, une attention suffisante ne soit pas accorde la limitation du commerce des armes.

46 47 48

Voir COLOMBOS, op. cit., pp. 375-376. Texte dans COLLIARD, Droit international et histoire diplomatique, 1955, t. 1, pp. 83 et s. Texte dans HUDSON, op. cit., vol. III, 1931, p. 1634, et au R.T.S.D N., 94, 1929, p. 65.

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3. Limitation des armements Linterdiction conventionnelle de certaines armes date encore des Confrences de SaintPtersbourg et de La Haye, dont les rsultats mentionns dans laperu historique sont toujours en vigueur. En ce qui concerne la guerre maritime, les dispositions de la Convention relative la pose de mines sous-marines automatiques de contact mritent une attention spciale. Les mines automatiques de contact non amarres doivent tre construites de manire devenir inoffensives une heure au maximum aprs que lEtat qui les a places en aura perdu le contrle. Les mines automatiques de contact amarres doivent devenir moffensives ds quelles rompent leur amarres. Les torpilles doivent devenir inoffensives lorsquelles manquent leur but. La Convention interdit de placer des mines automatiques de contact devant les ctes et les ports de ladversaire, dans le seul but dintercepter la navigation de commerce. A la fin de la guerre, les mines doivent tre enleves. Le Protocole concernant la prohibition de lemploi, en temps de guerre, de gaz asphyxiants, toxiques ou similaires et de moyens bactriologiques fut sign Genve le 17 juin 1925, et les interdictions imposes par le protocole furent compltes par la Convention du 10 avril 1972 sur linterdiction de la mise au point, de la fabrication et du stockage des armes bactriologiques (biologiques) ou toxines et sur leur destruction.49 Le 18 mai 1977 fut signe Genve la Convention sur linterdiction dutiliser des techniques de modification de lenvironnement des fins militaires ou toutes autres fins hostiles,50 daprs laquelle est interdite toute technique ayant pour objet de modifier grce une manipulation dlibre de processus naturels la dynamique, la composition ou la structure de la Terre, y compris ses biotes, sa lithosphre, son hydrosphre et son atmosphre, ou lespace extra-atmosphrique (art. II) ayant des effets tendus, durables ou graves, en tant que moyens de causer des destructions, des dommages ou des prjudices un autre Etat partie (art. I, par. 1). Outre la Convention sur linterdiction ou la limitation de certaines armes classiques qui peuvent tre considres comme produisant des effets traumatiques excessifs ou comme frappant sans discrimination (New York, 10 avril 1980), trois protocoles ont t conclus. En ce qui concerne notre sujet, des rgles pertinentes peuvent tre trouves dans

49

50

Texte dans Arms Control: A Survey and Appraisal of Multilateral Agreements, p. 103 et s., et dans COLLIARD et MANIN, Droit international et Histoire diplomatique, t. 1, 1975, p. 102. Voir galement G. FISCHER, Chronique du dsarmement, A.F.D.I., 1971, pp. 85-130. Texte dans R.G.D.I.P., 1977, I, pp. 329-398. Voir en outre Ph. BRETTON, La Convention du 10 avril 1981 sur linterdiction ou la limitation de lemploi de certaines armes classiques qui peuvent tre considres comme produisant des effets traumatiques excessifs ou comme frappant sans discrimination, A.F.D.I., 1981, p. 127 et s.

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le Protocole I relatif aux clats non localisables et le Protocole III sur les armes incendiaires.51 Enfin, force nous est de soulgner certaines rgles fondamentales du Protocole additionnel aux Conventions de Genve du 12 aot 1949 relatif la protection des victimes de conflits arms internationaux, lgard desquelles on peut affirmer quelles reprsentent non seulement la codification mais aussi le dveloppement progressif du droit international:
1. Dans tout conflit arm, le droit des parties au conflit de choisir des mthodes ou moyens de guerre nest pas illimit. 2. Il est interdit demployer des armes, des projectiles et des matires ainsi que des mthodes de guerre de nature causer des maux superflus. 3. Il est interdit dutiliser des mthodes ou moyens de guerre qui son conus pour causer, ou dont on peut attendre quils causeront, des dommages tendus, durables et graves lenvironnement naturel. (Art. 35).52

B.

Espaces dmilitariss

1. Dfinition Se fondant sur la pratique des Etats et la doctrine, on dit dans la nouvelle Encyclopdie du droit international public que la dmilitarisation entails the obligation of a State under international law not to station military forces, and not to maintain military installations, in specified areas or zones of its territory, including territorial waters, rivers and canals and the air space above.53 Cette dfinition correspond, en gnral, aux engagements que les Etats prennent pour dmilitariser une partie de leur territoire; dans la doctrine, elle est parfois caractrise aussi comme une servitude militaire.54 Cependant, la vritable signification de la dmilitarisation dans chaque cas particulier ne saurait tre comprise que daprs lacte international tablissant la dmilitarisation dun territoire dtermin. Dans ces actes, on prcise, plus ou moins clairement, les engagements pris par les Etats par rapport au territoire dmilitaris, les frontires du territoire auxquelles se rapporte la dmilitarisation et les Etats que la dmilitarisation engage. Toutefois, la dmilitarisation est souvent lie ou confondue, dans ces actes, avec la neutralisation, cest--dire avec lobligation dexclure totalement un territoire dtermin, en cas de guerre, du thtre de la guerre. Le contenu de la dmilitarisation va de linterdiction de toute force ou installation militaire sur un territoire jusqu llimination de certaines armes ou fortifications seulement ou la limitation des effectifs des forces armes. Actuellement, les efforts visant

51 52 53 54

International Legal Materials, Vol. XIX, No. 6, 1980, pp. 1523, 1529 and 1534. Revue internationale de la Croix-Rouge, 1977, nos 704-705, pp. 35-36. J. DELBRICK, Demilitarization in Encyclopedia of Public International Law, t. 3, p. 150 et s. Cf. J. ANDRASSY, Medunarodno pravo, 7e d., 1978, p. 224.

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dmilitariser de grands espaces, englobant les territoires dun grand nombre dEtats et les espaces situs en dehors des limites de la juridiction nationale, prennent de plus en plus dimportance; la dmilitarisation lie, dans ces cas, un grand nombre dEtats ou mme tous les Etats. 2. Dmilitarisation et espaces marins Vu lobjet de la prsente tude, il importe de souligner que, dans certains actes tablissant la dmilitarisation, on ne rpond pas de faon suffisamment claire la question de savoir dans quelle mesure la dmilitarisation dun territoire donn stend aux espaces marins voisins. Cest ainsi que lon ne prcise pas toujours si, et dans quelle mesure, la dmilitarisation des les se rapporte la mer adjacente. De toute faon, mme si cette question nest pas traite part, la dmilitarisation des les implique toujours celle des ports, des bases navales, ainsi que des autres parties de la mer troitement lies aux les elles-mmes. De faon gnrale, force nous est de conclure quil est ncessaire de prendre en considration, en plus du texte du trait lui-mme, toutes les circonstances qui ont men dmilitarisation, le contenu du droit international gnral, et avant tout celui du droit de la mer, valable au moment de la conclusion du trait dont il sagit, afin de pouvoir tablir dans quelle mesure la dmilitarisation dune partie donne du continent sapplique galement la mer. Nous nous en tiendrons aux cas de dmilitarisation o il est vident quelle se rapporte aussi, au moins partiellement, la mer, en tenant compte des rgles que lon peut considrer comme faisant partie du droit international positif. 1 Les les 1. Les les dland Dans le pass, comme le fait remarquer Quneudec, part la dmilitarisation des zones frontalires, ce sont des traits portant le plus souvent sur la dmilitarisation des les qui ont t conclus.55 Cest ainsi que le 30 mars 1856, en annexe au Trait de paix de Paris, fut conclue une Convention entre la France, la Grande-Bretagne et la Russie sur la neutralit des les dland dans laquelle les trois monarques dclaraient que les les dland ne seront pas fortifies et quil ny sera maintenu ni cr aucun tablissement militaire ou naval (art. 1er).56 Aprs la premire guerre mondiale, le Conseil de la Socit des Nations reconnut la souverainet de la Finlande sur les les dland, sous condition de les neutraliser et de ne pas les fortifier.57 Une nouvelle Convention fut conclue (Genve, 20 octobre 1921) qui compltait la Convention de 1856.58 A part

55 56 57 58

QUNEUDEC, op. cit., p. 241. Texte dans COLLIARD et MANIN, Droit international et histoire diplomatique, 1970, t. II, p. 26. Texte de la recommandation du Conseil de la S.D.N. du 25 juin 1921, ibid., p. 72. Texte ibid., p. 73.

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linterdiction de toute installation militaire et navale, il tait stipul quaucune force militaire, navale ou arienne daucune Puissance (art. 4) ne pouvait entrer dans la zone des les dland. Une seule exception tait permise: les visites priodiques des navires de guerre lgers de surface finlandais. Les navires de guerre trangers avaient la libert du passage inoffensif travers les eaux territoriales, mais la Finlande ne pouvait accorder le droit dentrer et de mouiller dans larchipel qu un seul navire de guerre de toute autre puissance. En cas de guerre, larchipel serait considr comme zone neutre, mais la Finlande aurait le droit de prendre les dispositions dordre maritime ncessaires en vue de protger cette neutralit. Le Trait entre la Finlande et lUnion sovitique du 11 octobre 1940 confirma la dmilitarisation des les dland. En se fondant sur larticle 12 du Trait de paix avec la Finlande de 1947, lUnion sovitique fit savoir ce pays, le 13 mars 1948, que ce trait restait en vigueur.59 Cependant, le Trait de paix avec la Finlande confirma luimme la dmilitarisation des les dland: Les les dland demeureront dmilitarises comme elles le sont actuellement (art. 5).60 2. Autres les La dmilitarisation et la neutralisation, tablies par le Trait de Londres du 14 novembre 1863, furent limites aux les de Corfou et de Paxos par le Trait du 29 mars 1864.61 En vertu de larticle 115 du Trait de paix de Versailles, lAllemagne devait dtruire les fortifications, les tablissements militaires et les ports des les de Hligoland et de Dune, lintrieur dune zone dtermine par des coordonnes gographiques; elle navait pas le droit de reconstruire les ouvrages dtruits ou analogues. Le 9 fvrier 1920, Paris, fut sign le Trait relatif larchipel du Spitsberg,62 actuellement encore en vigueur. La Norvge, qui la souverainet sur les les de Spitsberg avait t donne la suite de ce trait sengageait ne pas crer de bases navales sur ces les et ne le permettre personne dautre. En outre, la construction de fortifications fut interdite sur ces les, qui ne pourraient jamais tre utilises dans des buts de guerre. Tous ces engagements se rapportaient une zone dtermine par ses cordonnes gographiques. 3. Traits de paix de 1947 En ce qui concerne lampleur de la dmilitarisation, le Trait de paix de 1947 avec lItalie, qui dmilitarisait certaines les italiennes (Pantellaria, les les Plage, Pianosa art. 49),

59 60 61 62

Cf. ANDRASSY, Medunarodno pravo, note 4 la p. 224. R.T.N.U., vol. 48, p. 233. Voir M. SIBERT, Trait de droit international public, 1951, t. I, p. 401. Texte dans HUDSON, op. cit., vol. I, 1931, p. 436 et s. et dans R.T.S.N., 1920, II, p. 8. Voir B. BROMS, The Demilitarization of Svalbard (Spitsbergen), Essays in Honour of Eric Castrn, 1979, pp. 6 et s.

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185

ainsi que les les cdes la Yougoslavie (Pelagosa art. 11) et la Grce (les les du Dodcanse art. 14) est trs prcis. A lannexe XIII du Trait sont donnes les dfinitions des termes dmilitarisation et dmilitaris. Aux fins du Trait, ces termes doivent sentendre comme interdisant, sur le territoire et dans les eaux territoriales en cause, toutes installations et fortifications navales, militaires ou daviation militaire ainsi que leurs armements, les obstacles artificiels, militaires, navals ou ariens; lutilisation de bases par des units militaires, navales ou daviation militaire ou le stationnement permanent ou temporaire de ces mmes units; linstruction militaire sous toutes ses formes et la fabrication du matriel de guerre. Cette interdiction ne vise pas le personnel de scurit intrieure limit en nombre lexcution de tches de caractre intrieur et pourvu darmes qui peuvent tre transportes et servies par une seule personne, ainsi que linstruction militaire ncessaire un tel personnel.63 (Cette dfinition ne sapplique pas aux mesures de dmilitarisation partielle en Sicile et en Sardaigne.) Toutefois, comme nous lavons mentionn (p. 173), lItalie se trouve libre, par ses allis daprs-guerre, de toutes les clauses militaires, navales et ariennes du Trait de paix, de sorte que lobligation de dmilitariser les les italiennes est remise en question. Cette incertitude doit videmment se reflter dans le statut de la dmilitarisation des les que la Grce et la Yougoslavie ont acquises grce ce trait et qui sont aussi dmilitarises.64 2 Les dtroits 1. Dtroits turcs Afin dassurer la libert de navigation, et encore plus cause des intrts stratgiques des grandes puissances maritimes, on insre frquemment dans les traits des dispositions sur la dmilitarisation (neutralisation) des voies de navigation reliant deux parties de la haute mer, cest--dire des dtroits et des canaux. Dj par laccord conclu entre les grandes puissances europennes et la Turquie le 15 juillet 1840,65 on interdisait aux navires de guerre trangers dentrer dans les dtroits du Bosphore et des Dardanelles, tant que la Turquie tait en paix. Cette interdiction fut confirme par la Convention sur la fermeture des dtroits du 13 juillet 184l,66 avec pour seule exception le droit du sultan de permettre le passage de btiments lgers naviguant sous un pavillon de guerre mais au service des ambassades de puissances amies. Ce

63 64 65 66

R.T.N.U., vol. 49, pp. 113-114. Cf. Ph. DRAKIDES, Le sort actuel des dmilitarisations en Mditerrane (Italie, Grce), Revue Hellnique de Droit International, 1977, no 1-4, p. 42 et s. Texte dans MARTENS, Nouv. rec. gn., I, 156. Texte ibid., II, 128.

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11 RESTRICTIONS DES UTILISATIONS DE LA MER DES FINS MILITAIRES

rgime des dtroits fut confirm par la Convention sur les dtroits figurant en annexe au Trait de paix de Paris, du 30 mars 1856, qui neutralisait la mer Noire.67 Bien quavec le Trait de Londres sur la mer Noire, du 13 mars 1871,68 on renont la neutralisation de celle-ci, la fermeture des dtroits aux navires de guerre resta en vigueur, le sultan tant cependant autoris ouvrir les dtroits, en temps de paix, aux navires de guerre des puissances amies et allies si la Turquie le considrait comme ncessaire pour assurer la mise en application des dispositions du Trait de Paris de 1856.69 Larticle 13 du Trait de Berlin, du 13 juillet 1878, confirma le rgime des dtroits en vigueur jusqualors. Le 24 juillet 1923 fut conclue Lausanne une convention sur le rgime des dtroits,70 tablissant la libert complte de passage, y compris celle des navires et des aronefs de guerre. La seule limitation pour ceux-ci consistait en ce que la flotte dun Etat qui serait plus grande que la flotte du plus puissant Etat de la mer Noire ne pourrait pas passer par les dtroits en direction de la mer Noire. Cette limitation tait valable mme en temps de guerre, tant que la Turquie restait neutre. La Convention ordonnait la dmilitarisation des ctes, des dtroits et des les avoisinantes ainsi que de celles se trouvant dans la mer de Marmara. En cas de guerre, si la Turquie restait neutre, les belligrants ne pouvaient commettre dactes de guerre dans la zone des dtroits.71 La Convention de Lausanne fut remplace par la convention conclue Montreux le 20 juillet 193672 et qui rgle aujourdhui encore le rgime des dtroits. Par cette convention, on renona la dmilitarisation des ctes et des les proximit des dtroits. Le passage des navires de guerre trangers se trouve considrablement restreint (en nombre et en tonnage), mis part le traitement plus favorable dont jouissent les Etats ctiers de la mer Noire; en tout tat de cause, le passage doit toujours tre annonc la Turquie par voie diplomatique. Le passage est interdit aux sous-marins, exception faite pour les sous-marins des Etats ctiers de la mer Noire. Le survol des avions de guerre non plus nest pas permis. En cas de guerre, si la Turquie reste neutre, le passage des navires des Etats belligrants est interdit, quelques exceptions prs. Si la Turquie est en guerre, les navires des Etats lui faisant la guerre nont pas le droit au passage. 2. Autres dtroits internationaux Certaines mesures de dmilitarisation et de neutralisation ont t prvues pour deux autres dtroits. La dclaration du 8 avril 1904 de la Grande-Bretagne et de la France73 engage

67 68 69 70 71 72 73

Texte ibid., XV, p. 770 et s. Texte ibid., XVIII, p. 303 et s. Voir ROUSSEAU, op. cit., p. 411. Texte dans LE FUR et CHKLAVER, op. cit., p. 821 et s. V.A. ROUGIER, La question des dtroits et la convention de Lausanne, R.G.D.I.P., 1924, p. 309 et s. Texte dans COLLIARD, Droit international et histoire diplomatique, p. 96 et s. Texte dans MARTENS, Nouv. rec. gn., 2me srie, vol. XXXII.

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les contractants ne pas permettre la fortification de la cte marocaine proximit du dtroit de Gibraltar, afin dassurer le passage travers le dtroit. A cette dclaration lEspagne sassocia par la convention signe avec la France le 27 novembre 1912.74 LArgentine et le Chili signrent, le 23 juillet 1881, un trait qui les engageait ne pas lever de fortifications sur les ctes du dtroit de Magellan, ne pas y exercer dactes de guerre et respecter la libert de navigation travers cette voie maritime.75 3 Les canaux internationaux 1. Le canal de Suez Linternationalisation et la neutralisation du canal de Suez furent institues par la Convention de Constantinople du 29 octobre 1888.76 Les navires de commerce ou de guerre jouissaient du droit de libre passage en temps de guerre comme en temps de paix, mais il tait interdit de maintenir des btiments de guerre dans les eaux du canal. La Convention prvoyait le libre passage pour les navires de guerre des belligrants, mme si la Turquie (suzerain gyptien dalors) tait en guerre (art. IV). Cette disposition ne contredisait pas seulement la logique mais aussi larticle X de la Convention, qui permet ladoption de mesures ncessaires la dfense de lEgypte et au maintien de lordre public, de sorte que lon ne pourrait pas, en raison du caractre anachronique de larticle IV, exiger actuellement de lEgypte de tolrer le passage des Etats en guerre avec elle. Les Etats contractants sengageaient ne commettre aucun acte dhostilit dans le canal et ses ports daccs, ni dans un rayon de trois milles marins de ces ports. 2. Le canal de Panama La neutralisation et la non-fortification du canal traversant lAmrique centrale ont t tablies avant le commencement de sa construction, par le Trait Clayton-Bulwer, du 19 avril 185077 puis par deux Traits Hay-Pauncefote, datant du 5 fvrier 190078 et du 18 novembre 1901;79 tous ces traits taient conclus entre la Grande-Bretagne et les Etats-Unis. Finalement, le Panama ayant acquis son indpendance, les Etats-Unis conclurent avec lEtat nouvellement cr le Trait Hay-Bunau-Varilla, du 18 novembre 1903,80 qui sappliqua aprs louverture du canal de Panama en 1914. Les rgles figurant dans la Convention de Constantinople entraient en ligne de compte comme rgles de base pour la neutralisation du canal de Panama; mais la diffrence essentielle par rapport

74 75 76 77 78 79 80

Texte dans de MARTENS, Nouveau Recueil gnral des Traits, 3me srie, t VII, p. 323 et s. Texte dans de MARTENS, Nouveau Recueil gnral des Traits, 2me srie, t. XII, p. 491 et s. Texte dans COLLIARD, op. cit., p. 106 et s. Voir ROUSSEAU, op. cit., p. 576. Voir ANDRASSY, Medunarodno pravo, p. 199. Texte dans COLLIARD, op. cit., p. 109. Texte dans COLLIARD, op. cit., p. 112 et s.

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au canal de Suez tait le droit de maintenir des troupes et de fortifier le canal dont bnficiaient les Etats-Unis dans la zone du Canal sous leur administration et qui leur permettait de construire des bases navales et ariennes.81 Au cours des dcennies suivantes, le Panama fit des efforts pour changer sa situation de dpendance lgard des Etats-Unis en ce qui concerne le Canal.82 Il nobtint satisfaction quavec les traits du 7 septembre 1977. Un de ces traits porte sur la neutralisation permanente du canal. Les navires de guerre conservent le droit de passage, mais celui-ci doit seffectuer aussi promptement que possible. Dans le Canal, les actes dhostilit sont interdits. Un autre accord, conclu ultrieurement (Washington, 14 octobre 1977), dispose que les Etats-Unis ninterviendront pas dans les affaires intrieures du Panama, tout en leur reconnaissant le droit dagir contre toute agression ou menace dirige contre le Canal ou contre le passage pacifique des navires travers le Canal.83 3. Le canal de Kiel Par le Trait de paix de Versailles, le canal de Kiel fut internationalis et ouvert aux navires de guerre et de commerce. Dans laffaire du Wimbledon, la Cour Permanente de Justice Internationale, dans son arrt du 17 aot 1923, confirma lobligation de lAllemagne de laisser passer les navires mme sils transportaient des matriaux de guerre destins des belligrants.84 Etant donn que lAllemagne a dnonc unilatralement toutes les clauses fluviales des traits de paix (le 14 novembre 1936), il existe diverses rponses la question de savoir si les dispositions du Trait de Versailles sont toujours en vigueur. Nous considrons comme plus juste linterprtation de Symonides et de quelques autres auteurs soutenant que ces dispositions relvent encore du droit international positif.85 4 La mer 1. Introduction La dmilitarisation de la mer Noire par le Trait de Paris de 1856 est le seul exemple de dmilitarisation conventionnelle dune mer.86 En vertu de ce trait, la Turquie et la Russie renonaient au droit davoir sur les ctes de la mer Noire des arsenaux militaires et navals et de possder des navires de guerre, except quelques navires de guerre

81 82 83 84 85 86

Voir ROUSSEAU, op. cit., p. 579 et s. Texte dans International Legal Materials, 1977, no 5, p. 1021 et s., et dans COLLIARD et MANIN, Documents de droit international et dhistoire diplomatique. 1979, 2, pp. 208-213. Texte dans R.G.D.I.P., 1978, p. 279. Vapeur Wimbledon, arrts, C.P.J.I., 1923, srie A, no 1. J. SYMONIDES, Obowiazywanie postanowien traktata wersalskiego doticzacych Kanalu Kilonskiego, Technika i gospodarska morska, 1967, p. 244 et s. Texte dans FLEISCHMANN, op. cit., p. 50.

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189

seulement, ncessaires au service ctier. Laccs des eaux et des ports de la mer Noire tait interdit aux navires de guerre trangers. A la diffrence de ce cas de dmilitarisation comme moyen de solution des rapports politiques entre les grandes puissances, on tend aujourdhui exclure certains espaces marins de la course aux armements, dans ce but, on y interdit certaines activits militaires ou lemploi de certaines armes. A cet gard, les rsultats les plus importants sont obtenus dans le cas de la mer adjacente lAntarctique et des fonds marins. 2. LAntarctique Bien que le Trait sur lAntarctique, sign Washington le 1er dcembre 1959, nemploie pas directement le terme dmilitarisation, la dmilitarisation fut, sans aucun doute, un des buts essentiels des Etats contractants qui sengageaient utiliser lAntarctique uniquement des fins pacifiques.87 Or lobligation dutiliser un espace exclusivement des fins pacifiques ne peut tre interprt dans ce trait de la mme faon que dans dautres actes internationaux dans lesquels cette obligation nest pas incompatible avec la prsence de forces militaires et de toutes sortes darmes (par ex. lart. 88 de la Convention des Nations Unies sur le droit de la mer). Le sens de lobligation dutiliser lAntarctique exclusivement des fins pacifiques est prcis dans le Trait par des exemples dactivits qui ne sont pas permises et il sagit justement des activits qui font lobjet des traites internationaux sur la dmilitarisation. On interdit entre autres, toutes mesures de caractre militaire telles que ltablissement de bases, la construction de fortifications, les manuvres, ainsi que les essais darmes de toutes sortes (art. I, par. 1). Toutefois, on admet lemploi de personnel ou de matriel militaires pour la recherche scientifique ou pour toute autre fin pacifique, ce qui montre que la dmilitarisation de lAntarctique nest pas complte. Le Trait sur lAntarctique et, partant, galement ses rgles sur la dmilitarisation sappliquent la rgion situe au sud du 60me degr de latitude sud, y compris toutes les plates-formes glaciaires (art. VI). Cependant, cest prcisment au sujet de lapplication des dispositions du Trait aux espaces marins lintrieur de cette rgion que nous trouvons, dans le mme article VI, une rserve exprime en ces termes:
Rien dans le prsent Trait ne pourra porter prjudice ou porter atteinte en aucune faon aux droits ou lexercice des droits reconnus tout Etat par le droit international en ce qui concerne les parties de haute mer se trouvant dans la rgion ainsi dlimite.

Par consquent, les mesures de dmilitarisation qui engagent les contractants dans lAntarctique continental ne sauraient sappliquer la haute mer si elles sopposent aux

87

Cf. C.C. JOYNER, Antartica and the Law of the Sea: Rethinking the Current Dilemmas, San Diego Law Review, 1981, no 3, p. 420.

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liberts dont jouissent tous les Etats en haute mer. Cest ainsi que tous les Etats ont le droit deffectuer des manuvres militaires au sud du 60me degr de latitude sud en haute mer, ainsi que dexcuter des essais avec des armes classiques. Il sensuit que ni la libert de navigation ni le survol de la haute mer ne sauraient tre mis en cause pour les navires et les aronefs de guerre indpendamment de ce quils servent des essais scientifiques ou dautres fins pacifiques, ce qui est la condition requise pour ladmission de la prsence de personnel et de lquipement militaires dans lAntarctique mme. Toutefois, une question se pose encore propos de lapplication de la rserve formule dans larticle VI: o commence la haute mer par rapport aux ctes de lAntarctique? Les positions prises par les Etats et la doctrine ne donnent pas de rponse nette cette question.88 Nous estimons quil convient de distinguer, dans le cas de lAntarctique, bien quil ny ait pas dEtats ctiers au vrai sens du mot, entre la bande ctire de mer et la haute mer, o tous les Etats ont les mmes droits. Les Etats prsents dans lAntarctique doivent assumer une plus grande responsabilit en ce qui concerne le rgime juridique dans la zone ctire. Les Etats contractants eux-mmes semblent approuver cette position. A leur troisime runion consultative, tenue Bruxelles en 1969, ils ont adopt la recommandation III-8, tablissant les mesures convenues pour la protection de la faune et de la flore dans lAntarctique. Sur la base de larticle VII, par. 3, de ces mesures, A. van der Essen conclut que lAntarctique a une mer territoriale, car cette disposition prvoit ceci:
Les gouvernements participants prendront toutes les mesures raisonnables pour rduire la pollution des eaux proches de la cte ou des plates-formes glaciaires.89

3. Le fond des mers Nous examinerons en dtail, plus loin, dans la division sur la dnuclarisation, un deuxime trait international qui dmilitarise, en partie, les espaces marins, car son objectif essentiel est dinterdire les armes nuclaires sur le fond des mers. Toutefois, le Trait du 11 fvrier 1971 interdisant de placer des armes nuclaires et dautres armes de destruction massive sur le fond des mers et des ocans ainsi que dans leur sous-sol se propose dempcher que soient placs sur le fond des mers, non seulement des armes nuclaires, mais aussi les autres types darmes de destruction massive, non plus quaucune construction, installation de lancement ou autre installation expressment conue pour le stockage, les essais ou lutilisation de telles armes (art. 1, par. 1). Le Trait ne prcise pas quelles sont les armes qui, avec les armes nuclaires, figurent dans la catgorie des armes de destruction massive. En premier lieu, doivent tre considres

88 89

Voir JOYNER, op. cit., p. 427 et s. A. van der ESSEN, LAntarctique et le Droit de la Mer, Revue iranienne des relations internationales, 197576, nos 5-6, p. 92 et s.

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comme telles les armes bactriologiques (biologiques) et chimiques, mais aussi toutes les autres dont il nest pas possible de contrler lapplication, ni de limiter lactivit dans le sens aussi bien temporel que spatial de faon quelles aboutissent la destruction massive de tout tre vivant, des destructions disproportionnes par rapport au but que lon dsire atteindre (S. Avramov).90 Linterdiction dinstaller des armes de destruction massive vaut pour les fonds et le sous-sol des mers partir dune ligne, loigne de douze milles de la ligne de base, servant de point de dpart pour mesurer la largeur de la mer territoriale.

2.4. A.

La dnuclarisation de la mer Limitation et interdiction des armes nuclaires

1 Interdiction de lemploi de larmement nuclaire 1. Institut de Droit International LInstitut de Droit International adopta, le 9 septembre 1969, une rsolution dans laquelle est exprime la position suivante:
Est interdit par le droit international en vigueur lemploi de toutes les armes qui, par leur nature, frappent sans distinction objectifs militaires et objectifs non militaires, forces armes et populations civiles. Est interdit notamment lemploi des armes dont leffet destructeur est trop grand pour pouvoir tre limit des objectifs militaires dtermins ou dont leffet est incontrlable (armes autognratrices), ainsi que des armes aveugles.91

Selon lopinion du rapporteur de lInstitut, le baron von der Heydte, cette interdiction se rapporte aux armes nuclaires, chimiques et bactriologiques.92 2. LAssemble gnrale des Nations Unies LAssemble gnrale des Nations Unies a dclar par sa rsolution 1653 (XVI) du 24 novembre 1961 que lemploi de larmement nuclaire viole la Charte et les rgles gnrales du droit international et quil constitue un crime contre lhumanit. Par sa rsolution 2936 (XXVII) du 29 novembre 1972, lAssemble a proclam linterdiction permanente de lutilisation de larmement nuclaire.

90 91

92

S. AVRAMOV, Medunarodno javno pravo, 1969, p. 326. Rsolution La distinction entre les objectifs militaires et non militaires en gnral, et notamment les problmes que pose lexistence des armes de destruction massive, A.I.D.I., 53me vol., session dEdimbourg, septembre 1969, t. II, 1969, p. 360. A.I.D.I., 52me vol., session de Nice, septembre 1967, t. II, 1967, p. 209.

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Cependant, les Etats nont pas un comportement tel quon puisse en conclure que le droit en vigueur suffit pour limiter leur arsenal darmes aux catgories qui ne sont pas vises par linterdiction de la rsolution prcite de lInstitut de Droit International. Cest pourquoi, pousse par la ncessit, la communaut internationale profite de chaque signe de bonne volont des grandes puissances pour obtenir delles llaboration de nouveaux instruments limitant de diffrentes faons la diversit de larmement, et avant tout de larmement nuclaire. Jusqu prsent, des traits ont t conclus par lesquels certains Etats renoncent larmement nuclaire; les superpuissances ont accept certaines limitations de leur armement nuclaire; les essais darmes nuclaires sont interdits dans certains milieux, de mme que linstallation dun armement nuclaire dans certains espaces. Nous parlerons de ces traits dans la mesure o ils se rapportent la mer. 2 Limitation des armes stratgiques nuclaires en mer 1. S.A.L.T. Des ngociations ayant dur plusieurs annes sur la limitation des armes stratgiques (L.A.S.) entre les Etats-Unis et lUnion sovitique ont abouti deux traits de base, signs Moscou le 26 mai 1972: le Trait sur la limitation des systmes de missiles antibalistiques (A.B.M. Treaty) et la Convention provisoire au sujet de certaines mesures concernant la limitation des armes offensives stratgiques.93 Bien que ces deux formes de limitation darmes nuclaires soient troitement lies entre elles, seule la seconde nous intresse dans le cadre de cet expos, car elle se rapporte, en partie, aux forces militaires maritimes. En effet, en vertu de la Convention provisoire et du Protocole conclu en mme temps que cette Convention, les deux Etats ont dtermin le nombre maximal admissible de lanceurs de missiles balistiques installs sur sous-marins (S.L.B.M.) pour chacun deux (Etats-Unis 710, Union sovitique 950) et de sous-marins balistiques modernes (Etats-Unis 44, Union sovitique 62). Au moment de la conclusion de la Convention, les Etats-Unis navaient que 656 lanceurs sur des sous-marins nuclaires, et lUnion sovitique 740 lanceurs de ce genre. Les deux Etats ne pouvaient parvenir aux limites admises par la Convention quen remplaant un nombre gal de lanceurs de missiles balistiques intercontinentaux I.C.B.M. de types plus anciens construits avant 1964, ou de lanceurs installs bord de sous-marins plus anciens. En vue de la surveillance de lapplication de la Convention, il a t permis chaque partie dutiliser les moyens techniques nationaux de vrification dont elle dispose. (Pour suivre les lancements dessai des missiles de lautre partie et leurs propres tests, les deux Etats ont des stations dobservations sur les ocans.) Ces moyens doivent tre conformes au droit international, et il nest pas permis lautre partie den entraver le fonctionne-

93

Textes dans COLLIARD et MANIN, Droit international et histoire diplomatique, t. 1, 1975, p. 166. Voir en outre G. FISCHER, Les accords sur la limitation des armes stratgiques, A.F.D.I., 1972, p. 9 et s.

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ment. Une Commission consultative permanente des deux parties a t cre pour assurer lapplication de la Convention. 2. S.A.L.T. II Les reprsentants des Etats-Unis dAmrique et de lUnion sovitique ont sign le 18 juin 1979, Vienne, une srie daccords S.A.L.T. II.94 A la diffrence de S.A.L.T. I, les lanceurs sur sous-marins (S.L.B.M.) ne sont pas, dans S.A.L.T. II, limits indpendamment, mais sont englobs dans la limite de larsenal stratgique (2 250 pour chacune des parties, et jusquau 1er janvier 1981 il ne devait pas y en avoir plus de 2 400) et dans le plafond des lanceurs de missiles balistiques mirvs (1 200). En outre, chacun des S.L.M.B. pouvait avoir au maximum 14 corps de rentre. Par un protocole additionnel, les deux Etats se sont mis daccord, et ce pour la priode allant jusquau 31 dcembre 1981. Au point de vue de larmement maritime, chacune des parties contractantes sest engage ne pas mettre en place des missiles tte chercheuse sur des lanceurs en mer de porte suprieure 600 km et ne pas effectuer de lancements dessai de tels missiles quips de ttes multiples guides indpendamment. Les documents de S.A.L.T. II contenaient aussi une dclaration commune concernant les futures ngociations des deux Etats sur la limitation ultrieure de larmement stratgique. Malheureusement, les traits S.A.L.T. II nont pas t ratifis, et avec larrive au pouvoir de la nouvelle Administration amricaine, lapproche des Etats-Unis quant aux ngociations sur larmement stratgique a t modifie. Il faut regretter linterruption du processus S.A.L.T., non seulement parce quelle reflte laggravation des relations entre les deux superpuissances, mais aussi parce que des rsultats effectifs avaient t obtenus au cours de ces ngociations. Il convient cependant de souligner que, sur le plan de la limitation de larmement stratgique, les traits S.A.L.T. avaient plusieurs lacunes importantes: ils laissaient chaque Etat un trop grand nombre de S.L.B.M. (et de corps de rentre ttes multiples indpendamment guides, M.I.R.V., en gnral), ils permettaient de poursuivre le perfectionnement technique de ces armements et, en outre, ils laissaient intactes les forces nuclaires maritimes de la Grande-Bretagne, de la France et dautres puissances nuclaires maritimes potentielles. 3 Dnuclarisation et utilisation de lnergie nuclaire des fins pacifiques 1. Navires propulsion nuclaire Dans toutes les formes de limitation, les Etats soulignent quils ne renoncent pas lemploi de lnergie nuclaire pour des fins pacifiques. Cest pourquoi on a adopt des

94

Textes dans COLLIARD et MANIN, op. cit., p. 170. Voir en outre G. FISCHER, Les Accords S.A.L.T. II, A.F.D.I., 1979, p. 129 et s.

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systmes de contrle des activits nuclaires des Etats afin dviter que, de pacifiques quelles taient, ces activits ne deviennent militaires. La mer et lemploi de lnergie nuclaire des fins pacifiques sont troitement lis. La construction de navires propulsion nuclaire a t lune des premires formes dutilisation de lnergie nuclaire des fins pacifiques.95 La navigation de ces navires et le transport des matires radioactives ont conduit, tout dabord, la conclusion de traits bilatraux entre les Etats du pavillon et les pays dans les eaux desquels ces navires entraient, puis ladoption de rgles internationales spciales dans le cadre de lOrganisation Maritime Internationale (O.M.I., anciennement O.M.C.I.). La Convention des Nations Unies sur le droit de la mer renferme des dispositions spciales pour les navires propulsion nuclaire et les navires transportant des substances radioactives lorsquils exercent le droit de passage inoffensif dans la mer territoriale. Ils peuvent en particulier tre requis demprunter certaines voies de circulation et de respecter certains dispositifs de sparation du trafic, et ils sont tenus dtre munis des documents et de prendre les mesures spciales de prcaution prvus par des accords internationaux pour ces navires (art. 23). 2. Immersion de dchets radioactifs Trs rapidement, aprs le dbut de lemploi de lnergie nuclaire, on sest rendu compte du danger que prsentait pour la mer son utilisation sans contrle en vue de limmersion de dchets radioactifs. Cest pourquoi, dj dans la Convention sur la haute mer de 1958, il avait t prescrit de prendre des mesures pour viter la pollution des mers due limmersion de dchets radioactifs (art. 25, par. 1). Cette obligation na toutefois pas t respecte, et les Etats nont pas non plus mis en application leur promesse dadopter des normes internationales adquates pour la prvention de la pollution marine rsultant dactivits qui comportent lemploi de matriaux radioactifs. Les conventions internationales conclues jusqu prsent ne sont pas suffisantes pour assurer une protection adquate et, malheureusement, dans la Convention sur le droit de la mer, de 1982, la pollution de ta mer par la radioactivit nest pas mentionne spcialement.96 B. Linterdiction des essais darmes nuclaires

1. Introduction Cette interdiction rsulte, dans certains cas, explicitement de linterdiction des essais darmes nuclaires et de celle dautres explosions nuclaires et, dans dautres cas, indirectement dautres interdictions visant lutilisation de lnergie nuclaire des fins militaires.

95 96

Voir L.M. HYDEMAN et W.H. BERMAN, International Control of Nuclear Maritime Activities, 1960. Voir S.A. BOEHMER-CHRISTIANSEN, Dumping nuclear waste into the sea: international control of science and law, Marine policy, 1983, no 1, p. 25 et s.

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Les unes et les autres de ces dispositions conventionnelles interdisent les essais darmes nuclaires tantt ratione personae, tantt ratione loci. A ct du droit conventionnel, il convient aussi de mentionner lexistence des rgles de droit coutumier en la matire. Linterdiction visant les essais nuclaires est explicitement tablie pour certains Etats, alors quelle dcoule, pour les autres, de linterdiction de fabriquer ou dacqurir des armes nuclaires de toute autre manire. Globalement, les essais darmes nuclaires sont interdits: a) aux Etats vaincus la deuxime guerre mondiale, sur la base des traits de paix et lAllemagne de lOuest sur la base des Accords de Paris du 23 octobre 1954;97 b) lAutriche (Trait dEtat du 15 mai 1955);98 c) aux pays de lAmrique latine, sur la base du Trait visant linterdiction des armes nuclaires en Amrique latine (Trait de Tlatelolco du 14 fvrier 1967);99 d) tous les Etats contractants du Trait sur la nonprolifration des armes nuclaires du 1er juillet 1968.100 Par ailleurs, les traits internationaux dterminent certains espaces o il est interdit quiconque deffectuer des essais darmes nuclaires. Pour le moment, il sagit, dans le cas des espaces maritimes, de lAntarctique, de lAmrique latine, ainsi que de la mer et des fonds des mers et des ocans en gnral. 2. Trait sur linterdiction des essais nuclaires Selon le Trait interdisant les essais darmes nuclaires dans latmosphre, dans lespace extra-atmosphrique et sous leau, sign Moscou le 5 octobre 1963,101 les Etats contractants se sont engags interdire, empcher et ne pas effectuer quelque explosion exprimentale darme nuclaire que ce soit, ou autre explosion nuclaire, en tout lieu relevant de sa juridiction ou de son contrle... (art. I). En vertu de cette disposition sont interdites toutes les explosions dans latmosphre, au-del de ses limites, y compris lespace extra-atmosphrique, ou sous leau, y compris les eaux territoriales ou la haute mer...; toute explosion dans tout autre environnement est par ailleurs interdite si une telle explosion entrane la prsence de dbris radioactifs hors des limites territoriales de lEtat sous la juridiction ou sous le contrle duquel cette explosion se produit. Par consquent, linterdiction porte sur toutes les explosions nuclaires a lintrieur des limites territoriales de chaque Etat ou en dehors de ces limites, mais ne vaut pas pour les explosions dans le sous-sol, sauf si leurs consquences se manifestent en dehors du territoire relevant de la juridiction ou du contrle de lEtat qui provoque lexplosion. Les formulations du Trait sur linterdiction des essais nuclaires ne sont pas suffisamment claires en ce qui concerne les explosions ventuelles dans le sous-sol des fonds

97

Texte dans C.A. COLLIARD et A. MANIN, Droit international et histoire diplomatique, t. II Europe, 1970, p. 521 et s. 98 R.T.N.U., vol. 217, p. 223. 99 R.T.N.U., vol. 729, p. 161. 100 R.T.N.U., vol. 729, p. 161. 101 R.T.N.U., vol. 480, p. 43.

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marins. La question se pose de savoir si linterdiction absolue dexplosions sous leau vise toutes les explosions de cette nature ou seulement celles qui entranent une prolifration de la radioactivit en dehors du territoire de lEtat qui provoque lexplosion. A cause de cette imprcision, il est utile de consulter le Trait interdisant de placer des armes nuclaires et dautres armes de destruction massive sur le fond des mers et des ocans ainsi que dans leur sous-sol, sign Londres, Moscou et Washington le 11 fvrier 1971. Larticle 1er, dj cit, de ce trait interdit, entre autres, de placer sur les fonds marins toute installation expressment conue pour les essais darmes de destruction massive. Cette interdiction implique, sans aucun doute, linterdiction des essais nuclaires eux-mmes sur le fond et dans le sous-sol des mers. Toujours est-il que, malgr cette disposition, la question des explosions nuclaires dans le sous-sol de la zone ctire reste ouverte. En effet, ce trait ne sapplique pas, en ce qui concerne les Etats ctiers, aux fonds marins jusqu douze milles partir des lignes de base servant de points de dpart pour mesurer la largeur de la mer territoriale. Le fait que le Trait sur linterdiction des essais nuclaires ne mentionne expressment que la mer territoriale et la haute mer ne pose aucun problme dinterprtation, mme aujourdhui o le nombre de rgimes en mer a augment par rapport la situation qui a caractris lpoque de la conclusion de ce trait. La mer territoriale et la haute mer sont mentionnes par celui-ci dans le cadre du terme gnral leau, en vue de montrer que linterdiction dexercer des essais comprend la mer sous la juridiction des Etats, mais aussi celle au-del de leur juridiction. 3. Haute mer Ds le commencement des essais darmes nuclaires en haute mer, la question sest pose de savoir si ces essais taient compatibles avec le rgime de la haute mer et la libert de tous les Etats dutiliser la haute mer, sans que soit entrave son utilisation par dautres Etats. Exprimant lopinion de nombreux Etats selon laquelle les explosions nuclaires en haute mer constituent une infraction la libert de la mer, la premire Confrence des Nations Unies sur le droit de la mer a adopt, le 27 avril 1958, une rsolution par laquelle elle a dcid de renvoyer cette question lAssemble gnrale des Nations Unies pour quelle prenne toutes mesures ncessaires. Comme nous lavons montr, la rponse est claire dans le cas des Etats parties au Trait de Moscou de 1963: ils se sont engags ne pas effectuer dessais nuclaires dans nimporte quelle partie de la mer ni dans lespace arien surjacent. Malheureusement, on ne peut pas affirmer que cette obligation soit passe dans le droit coutumier gnral et quelle lie aussi les Etats qui ne sont pas parties au Trait de Moscou. Malgr le grand nombre des Etats parties, cette conclusion, celle de lillicit coutumire, ne serait pas plausible en raison des Etats qui manifestent clairement leur volont de ne pas accepter tes obligations de ce trait. Dans le mme sens va aussi la possibilit accorde aux Etats parties de se retirer du Trait (art. IV).

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Pourtant, malgr la conclusion que les interdictions du Trait de Moscou ne se sont pas transformes en droit coutumier, nous estimons quil existe une interdiction deffectuer des essais darmes nuclaires en haute mer en tant que rgle de droit coutumier gnral. Cette conclusion tient plusieurs arguments. Tout dabord, nous partageons lopinion de Gidel et dAndrassy selon laquelle les essais nuclaires sont incompatibles avec le principe de la libert des mers.102 A notre avis, linterdiction gnrale de procder des essais nuclaires en haute mer rsulte aussi de lart. 25 de la Convention sur la haute mer de 1958, daprs lequel tous les Etats sengagent ne pas polluer la mer par limmersion de dchets radioactifs et par lemploi de matriaux radioactifs. Les consquences dexplosions nuclaires sont justement celles que lon voulait empcher par lart. 25 de la Convention sur la haute mer et il ne faut pas oublier que les dispositions de cette convention sont pour lessentiel dclaratoires de principes tablis du droit international (prambule de la Convention). En plus, compte tenu de lunit de la haute mer avec les parties de la mer relevant de la juridiction des Etats ctiers, il est incontestable que les essais en haute mer causent des dommages la mer et aux ressources naturelles appartenant aux Etats tiers. 4. Trait sur lAntarctique Dans le Trait sur lAntarctique, on cite parmi les activits interdites sur ce continent les essais darmes de toutes sortes (art. I, par. 1). Comme dans larticle V, paragraphe 1, du Trait on interdit toute explosion nuclaire dans lAntarctique, il ny a pas de doute en ce qui concerne linterdiction des essais darmes nuclaires dans lAntarctique. Nous avons dj signal les problmes concernant lapplication des dispositions du Trait sur lAntarctique la mer qui lentoure. Nous avons conclu que le rgime de lAntarctique stendait entirement la bande ctire de la mer, dont on ne prcise pas la largeur ni la nature, en dpit de certaines affirmations selon lesquelles il sagirait de mer territoriale. En haute mer, mme au sud du 60me degr, o le rgime de lAntarctique sapplique, les Etats bnficient des droits et liberts du rgime de la haute mer (art. VI). Pourtant, comme nous avons essay de le dmontrer plus haut, lexcution dessais darmes nuclaires ne relve pas des droits et liberts dont les Etats jouissent en haute mer. Tout au contraire, ces essais empchent lexercice des droits et liberts des Etats tiers en haute mer et cest la raison pour laquelle ils sont interdits par le droit coutumier gnral. 5. Trait sur linterdiction darmes nuclaires en Amrique latine Ce trait contient lengagement des contractants de ne pas effectuer dessais darmes nuclaires. Linterdiction des essais nuclaires stend, daprs ce trait, aux grands

102 G. GIDEL, Explosions nuclaires exprimentales et libert de la haute mer, Mlanges Spiropulos, 1967, pp. 173-205; ANDRASSY, Medunarodno pravo, p. 190.

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espaces marins, car elle ne sapplique pas seulement la mer territoriale des Etats contractants et aux autres espaces relevant de leur juridiction, mais aussi la haute mer adjacente lAmrique latine, lintrieur des coordonnes dtermines par le Trait. C. Espaces dnuclariss

1. Origine et notion gnrale Lintroduction des armes nuclaires dans les armes des grandes puissances fut bientt suivie par des propositions ayant pour but de dlimiter certaines zones o toute mise en place de telles armes serait interdite.103 Les propositions avances visaient la dnuclarisation de territoires relevant de la juridiction nationale ou bien de zones ne relevant exclusivement daucune juridiction nationale. Les zones dnuclarises taient aussi bien des espaces continentaux que des espaces la fois continentaux et marins. De nombreuses rsolutions de lAssemble gnrale des Nations Unies furent adoptes, ayant principalement pour objet la mise en marche de la procdure permettant la conclusion de traits internationaux sur la dnuclarisation de telles zones. Dans sa rsolution 3472 B (XXX) du 11 dcembre 1975, lAssemble gnrale a notamment donn une dfinition gnrale de la zone dnuclarise en fixant en mme temps les obligations principales des Etats nuclaires lgard de ces zones. Selon cette rsolution, la zone exempte darmes nuclaires stablit en vertu dun trait qui doit contenir la procdure suivre pour dlimiter la zone, linterdiction absolue de linstallation darmes nuclaires lintrieur de la zone, ainsi quun systme international de vrification et de contrle du respect des obligations drivant du trait. Quant aux puissances nuclaires, on leur demande de sengager respecter le contenu du Trait sur la dnuclarisation et de sabstenir de menacer les Etats englobs dans la zone de lemploi de leur armement nuclaire. Malheureusement, il ny a pour le moment quun espace trs restreint qui soit, en vertu de dispositions conventionnelles, exempt du risque de voir sinstaller des armes nuclaires lintrieur de ses frontires. Il nous semble cependant que lobligation de certains Etats de ne pas squiper en armes nuclaires entrane galement limpossibilit de linstallation, par qui que ce soit, darmes nuclaires sur leur territoire. Malheureusement, la politique des Etats comme la doctrine prouvent le contraire.104

103 M. LACHS, Bezatomske zone, Medunarodni problemi, 1963, no 4, pp. 17-26: B. VUKAS, Oruja za masovno unitavanje i medunarodno pravo, Medunarodni problemi, 1971, no 1, pp. 45-47; NQUYEN QUOC DINH, P. DAILLER et A. PELLET, Droit international public, 2e d., 1980, p. 897. 104 Voir E. BROWN FIRMAGE, The Treaty on the Non-Proliferation of Nuclear Weapons, A.J.I.L., 1969, no 4, p. 722.

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2. LAntarctique Quoique linterdiction dinstaller les armes nuclaires ne figure pas formellement dans le Trait sur lAntarctique, elle sy trouve indniablement incluse. Cette conclusion dcoule non seulement des objectifs et de lesprit gnral du Trait ainsi que du principe de lexploitation uniquement pacifique de lAntarctique, mais galement du fait que toutes mesures de caractre militaire y sont interdites (art. I, par. 1). Si lon se rfre nos considrations prcdentes sur lapplication du rgime tabli par le Trait, on peut conclure que linterdiction dintroduire des armes nuclaires vaut pour les ports et les rades, ainsi que pour les eaux ctires de lAntarctique, mais non pour la haute mer. Le systme du contrle de lapplication du Trait est particulirement significatif, eu gard toutes les interdictions contenues dans le Trait qui concernent les activits nuclaires: installation darmes nuclaires, essais darmes nuclaires et milination de dchets radioactifs. 3. Le fond des mers et leur sous-sol Le Trait sur la dmilitarisation partielle des fonds marins reprsente le seul trait gnral sur la dnuclarisation. Nous te qualifions de gnral du fait quil est ouvert tous les pays et quil ne sapplique pas exclusivement une rgion gographique.105 Dans nos dveloppements sur la dmilitarisation, nous avons cit plus loin la disposition de base du Trait de 1971, selon laquelle il est interdit, au-del de la limite extrieure des 12 milles marins partir des lignes de base, dinstaller ou de placer toute arme nuclaire, de mme que toute construction, installation de lancement ou autre installation expressment conue pour le stockage, les essais et lutilisation de telles armes (art. 1er, par. 1). Tout Etat peut, titre autonome, contrler le respect des obligations conventionnelles en observant les activits dautres Etats, sans pour autant gner celles-ci. Si, la suite de telles observations, des doutes raisonnables persistent quant lexcution des obligations selon le Trait, lEtat qui a des doutes et le contractant responsable de lactivit qui les a veills entreront en consultation en vue dcarter les soupons. LEtat qui, mme aprs ces consultations, garde des doutes en informera les autres signataires du Trait; les contractants intresss se mettront daccord sur de nouvelles mesures de contrle, pouvant comporter linspection dobjets, de constructions, dinstallations et dautres amnagements dont on pourrait raisonnablement supposer quils servent aux activits interdites par le Trait. Aprs la mise en pratique de telles mesures dinspection, lEtat qui en aura pris linitiative en informera les autres contractants. Si, mme aprs cette procdure complexe, les doutes ne sont pas dissips et quon persiste souponner une activit de constituer

105 Texte dans R.G.D.I.P., 1971, p. 387. Voir en outre J.P. LEVY, ibid., p. 370.

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une violation du Trait, chaque Etat pourra sadresser au Conseil de scurit des Nations Unies. 4. LAmrique latine Pour une partie du monde il sagit de lAmrique latine , la dnuclarisation est chose convenue et elle semble, ce jour, avoir t respecte mme par les Etats qui nont pas encore adhr au Trait de Tlatelolco. Les Etats contractants se sont engags interdire et empcher sur leur territoire lessai, lemploi, la fabrication, la production ou lacquisition, par quelque moyen que ce soit, de toute arme nuclaire, pour leur propre compte, directement ou indirectement, pour le compte de tiers ou de toute autre manire; la rception, lentreposage, linstallation, la mise en place ou la possession sous quelque forme que ce soit, de toute arme nuclaire, directement ou indirectement, pour leur propre compte, par lintermdaire de tiers ou de toute autre manire. Ils sengagent en outre sabstenir de raliser, dencourager ou dautoriser tout essai, emploi, fabrication, production, possession ou contrle dune arme nuclaire quelconque... (art. 1). Outre ces obligations assures par les Etats latino-amricains, les Etats internationalement responsables des territoires situs dans la zone dapplication du Trait, de mme que les puissances possdant des armes nuclaires, se sont engags, par des protocoles supplmentaires, faire en sorte que le Trait lie tous les Etats qui, dans un dessein belliqueux, pourraient mettre en cause la dnuclarisation de lAmrique latine. Une fois que le Trait sera obligatoire pour tous les Etats appartenant ces trois catgories, il sera appliqu lAmrique du Sud et lAmrique centrale dans leur totalit, ainsi quaux Carabes, y compris de grands espaces de la haute mer. Pour le moment, la zone dapplication du Trait nenglobe que les territoires des Etats pour lesquels le Trait est en vigueur (y compris leur mer territoriale). Les Etats contractants mettent en place un organisme international appel Organisme pour linterdiction des armes nuclaires en Amrique latine, qui a pour mission dassurer le respect des obligations dcoulant du Trait. Le systme du contrle international du respect des obligations implique lexcution dinspections spciales au cas o lon souponnerait une violation du Trait, ainsi que ladoption de mesures en cas de violation du Trait. Lapplication du systme de garanties de lAgence internationale de lnergie atomique est galement prvue. 5. Autres rgions Quoique lAmrique latine soit la seule rgion o le principe de la dnuclarisation vis-vis des fins belliqueuses ait t tablie par un trait international, la dnuclarisation dautres rgions du monde a fait, mme avant le Trait de Tlatelolco, lobjet de nombreuses propositions, rsolutions et dcisions. Ainsi, par exemple, lAssemble gnrale a invit les membres des Nations Unies de respecter la dnuclarisation de lAfrique (1963); la Confrence des chefs dEtat ou de gouvernement de lOrganisation de lUnit

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africaine a adopt une Dclaration sur la dnuclarisation de lAfrique (1964); cette Dclaration a t appuye par les chefs dEtat ou de gouvernement des pays non aligns (1964) et approuve par lAssemble gnrale des Nations Unies (1965).106 La dnuclarisation de toute rgion continentale concernerait videmment les parties de la mer relevant de la souverainet des Etats auxquels la dnuclarisation sappliquerait. Ainsi, la dnuclarisation de lEurope centrale, de la Scandinavie et des Balkans devrait stendre galement la mer territoriale (et bien entendu aux eaux intrieures) des Etats de ces rgions. De mme, dans sa rsolution 1652 (XVI) du 24 novembre 1961, par laquelle lAssemble gnrale des Nations Unies a demand aux Etats membres de considrer le continent africain comme une zone dnuclarise, il a t prcis que ce statut devait valoir aussi pour la mer territoriale de lAfrique. Par la mise en uvre de propositions concernant la dnuclarisation de rgions gographiques englobant de vastes tendues de mer telles que le Moyen-Orient ou lAsie du Sud , la dnuclarisation stendrait probablement aux parties de la mer situes audel de la juridiction ou de la souverainet dun Etat quelconque. Cependant, outre les ides et les propositions portant sur la dnuclarisation de zones qui engloberaient ventuellement une tendue plus ou moins large de mer, on avance des propositions de dnuclarisation despaces qui sont essentiellement des espaces marins (par exemple le Pacifique). La proposition dj mentionne, qui prvoit la transformation de locan Indien en zone de paix, implique par ce fait mme sa dnuclarisation; quant la Mditerrane, certaines propositions prconisent sa dnuclarisation (Union sovitique, 1963), dautres sa transformation en zone de paix. Quoique ces propositions ne prcisent pas les limites gographiques des zones en question, il apparat clairement que la transformation de la Mditerrane (par exemple) en zone dnuclarise impliquerait lexclusion des armes nuclaires de toutes les eaux mditerranennes, quel que soit leur rgime international.

2.5

Mesures destines renforcer la confiance et a rduire les risques de conflits arms

1. Introduction Devant lchec enregistr sur le plan du dsarmement et le recours toujours plus frquent la force dans le rglement des diffrends internationaux, les Etats recherchent de nouveaux moyens secondaires susceptibles dattnuer les tensions internationales et de prvenir les conflits. Ainsi, on prconise des mesures propres a prvenir les accidents dus au hasard, puis linstauration de contacts directs entre chefs dEtat, enfin dautres

106 Voir Study on all the Aspects of Regional Disarmament, United Nations, 1981, A/35/416, p. 21 et s.

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mesures destines renforcer la confiance.107 Cette formule a t employe dans lActe final de la Confrence sur la scurit et la coopration en Europe propos des mesures suivantes: notification pralable des manuvres militaires denvergure; notification pralable dautres manuvres militaires; change dobservateurs; notification pralable de mouvements militaires denvergure; autres mesures destines renforcer la confiance.108 Certaines mesures convenues dans le cadre S.A.L.T. entre les Etats-Unis et lU.R.S.S. peuvent galement tre qualifies de mesures destines renforcer la confiance: change dinformations sur certaines activits, engagement de ne pas faire obstacle aux activits de reconnaissance de lautre partie, notification du lancement des missiles dont on prvoit quils sortiront hors des frontires du territoire dun Etat particulier, tablissement dune Commission consultative permanente pour le contrle de la mise en pratique des clauses contractuelles.109 Etant donn le sujet de la prsente tude, nous nexposerons en dtail que la notification pralable des manuvres militaires denvergure et la prvention des accidents en haute mer 2. Notification pralable des manuvres militaires Lapplication de toutes les mesures indiques ci-dessus et figurant dans lActe final de Helsinki na pas un caractre obligatoire, lexception de la notification pralable des manuvres militaires denvergure. Les manuvres qui mettent en mouvement plus de 25000 hommes des formations terrestres, manuvrant indpendamment ou, ventuellement, en liaison avec tout lment arien ou naval doivent tre notifies tous les autres Etats dEurope vingt et un jours au moins avant leur commencement. Linformation porte sur lobjectif des manuvres, sur leur envergure et la composition des forces armes qui y participeront, ainsi que sur la rgion et lpoque o elles auront lieu. Lobligation de notification se rapporte aux manuvres militaires denvergure qui se drouleront sur le territoire, en Europe, de tout Etat participant ainsi que, le cas chant, dans la zone maritime ou dans lespace arien voisin. Le critre di voisinage des manuvres navales sur le continent europen nest certes pas suffisamment prcis, de sorte quil peut donner lieu des difficults lors de la mise en application de cet accord. Malgr la dtrioration de la situation internationale aprs la Confrence de Helsinki, les Etats observent lobligation de notification de manuvres. Cela a t confirm lors de la runion de la Confrence tenue Belgrade.110 Il est vident quils continuent

107 Voir Comprehensive Study on Confidence-building Measures, United Nations, 1982 A/36/474. 108 Document sur les mesures de confiance et certains aspects de la scurit et du dsarmement, in Communiqu final dHelsinki, COLLIARD et MANIN, Documents de droit international et dhistoire diplomatique, 2, p. 115. 109 Doc. A/36/474, p. 21. 110 Ibid., p. 16.

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respecter cette obligation puisque la presse a publi une nouvelle selon laquelle respectivement le 27 et le 29 juin 1983 des manuvres parallles de lO.T.A.N. et de lUnion sovitique ont commenc dans la mer Baltique.111 Cependant, cest prcisment cette nouvelle qui prouve lintrt limit des mesures destines renforcer la confiance; dans une situation o la confiance fait dfaut, la notification pralable des manuvres ainsi que les informations concernant leur objectif, leur envergure, leur dure et la rgion o il est prvu quelles auront lieu provoquent les accusations mutuelles des deux parties, ce qui aggrave les relations internationales. Il est dailleurs vident qui lune et lautre partie sont, mme sans aucune notification officielle, parfaitement au courant de lintention de lautre partie deffectuer le manuvres puisquelles dcident, lune comme lautre, de commencer simultanment leurs manuvres. 3. Prvention des accidents en haute mer Outre les mesures rgionales, europennes notamment, concernant la fois les forces armes terrestres et navales, des accords bilatraux entre les grandes puissances ont t conclus avec pour but de prvenir les incidents susceptibles de provoquer la guerre. Tel est lobjectif des accords que lUnion sovitique a conclus, dans la priode de 1971 1977, avec les trois puissances occidentales en vue de la prvention dune guerre atomique accidentelle.112 Dans loptique de notre thme, il est cependant intressant de mettre en vidence lAccord entre les Etats-Unis et lUnion sovitique sur la prvention des accidents en haute mer et dans son espace arien, sign Moscou le 25 mai 1972, dans le cadre de S.A.L.T. I.113 En vertu de cet accord, les deux Etats sengagent faire respecter leurs avions et navires en haute mer les rgles internationales pertinentes. Leurs manuvres ne doivent pas seffectuer dans des zones de trafic maritime dense et l o des dispositifs de sparation du trafic sont internationalement prescrits. Afin de prvenir les collisions pouvant engendrer les hostilits, il est ordonn aux navires et aux avions des deux Etats de se tenir toujours une distance suffisante et de ne pas simuler dattaque contre les avions et les navires de guerre de lautre partie. Il a t convenu que les deux parties sinformeraient mutuellement sur les actions prvues en haute mer, si elles sont de nature mettre en danger la navigation ou les avions en vol. Un comit spcial a t prvu qui aurait pour tche non seulement dexaminer les mesures dapplication de lAccord, mais surtout de fixer des distances afin de prvenir les collisions. En vertu du Protocole conclu Moscou le 22 mai 1973,114 lAccord de 1972 est complt par une clause interdisant galement la simulation dattaques contre les navires

111 112 113 114

Vjesnik (Zagreb), 26 juin 1983. Voir Arms Control: A Survey and Appraisal of Multilateral Agreements, pp. 230, 237 et 238. World Armaments and Disarmament, S.I.P.R.I. Yearbook 1973, p. 36 et s., et I.L.M., XI, 4, p. 778. Voir Arms Control: A Survey and Appraisal of Multilateral Agreements, p. 233, et I.L.M., XII, 5, p. 1108.

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non militaires de lautre partie; il est interdit galement de lancer ou de jeter, dans le voisinage des navires non militaires, des objets qui peuvent tre dangereux pour ceux-ci ou pour la scurit de la navigation.

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Chapter 12

INTERNATIONAL LAW AND THE POLLUTION OF THE SEA*

The seas and oceans are the main battlefield in the universal war against the pollution of the environment. The results of that war up to the present are not encouraging. It suffices to mention the two latest casualties: the collision between the tankers Venoil and Venpet near the coast of South Africa (December 1977) and the wrecking of the tanker Amoco Cadiz on the coast of Brittany (March 1978). On the other hand, in the last ten years the number of international law rules (as well as rules of other systems of law) directed towards preventing pollution of the seas has enormously increased. Many conventions constituting a world-wide regulation of the problem have been concluded, as well as several regional treaties dealing with specific situations in particular seas. The fund of principles of customary international law has also unquestionably grown. In such a short article, it is impossible to give even a concise general description of the development and present content of international law rules on the prevention and abatement of pollution of the sea. We are therefore obliged to limit its scope. Considering the nature of the Colloquium to which we submit this report, in which we meet with our colleagues from a country whose coasts border a different sea from ours, it could be of interest to deal particularly with the specific features of the anti-pollution efforts in the Mediterranean and the Adriatic Seas. Besides the particular features of the rules elaborated for these semi-enclosed seas, we shall summarize the general law rules, which must, in some respects, be applied in a distinctive way in those seas.

1.

GENERAL INTERNATIONAL LAW

In this section we shall set out those provisions of international law in the relevant field which have been adopted for all the seas and which are intended to become binding upon all states. This second purpose has been achieved only in the case of general international customary rules. There is no doubt that customary law regarding pollution is still rather

This article was written in cooperation with Dr. Borut Bohte, Professor of Public International Law at the Faculty of Law, University of Ljubljana, Slovenia. It was first published in Hague-Zagreb Colloquium on the Law of International Trade, (C.C.A. Voskuil and J.A. Wade, eds.), T.M.C. Asser Institute-The Hague, Sijthoff & Noordhoff-Alphen aan den Rijn-The Netherlands, 1980.

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insufficient and vague, but it is also true that some treaty provisions have become customary rules, and some of them had, even before their codification, existed as customary rules. However, as in all other fields of international law, so also in the field of pollution the ascertainment of the existence of customary rules is a very difficult task.

1.1.

1958 Geneva conventions on the law of the sea

Although a new Convention on the Law of the Sea is being prepared at the Third United Nations Conference on the Law of the Sea (UNCLOS III), the four Geneva Conventions signed at the First UN Conference on the Law of the Sea (UNCLOS I), on 29 April 1958, are still the basic documents of the positive international law of the sea. Provisions on the duties of states concerning the prevention of pollution are included in the Convention on the High Seas and in the Convention on the Continental Shelf. Although these provisions are short and of a general nature, they have had a considerable impact, as both Conventions have been quite widely accepted.1 We are of the opinion that they are also an expression of general customary international law. In the preamble to the High Seas Convention it is stated that the provisions of that Convention are generally declaratory of established principles of international law. Twenty years after the signing of the Continental Shelf Convention we maintain that the provisions on pollution in that Convention also represent general customary law. This assertion of ours is based not only on the large number of ratifications of the Convention and the acceptance of those provisions in the municipal law of many states, but also on the intention of states to include them in the new Convention on the Law of the Sea. In the 1958 Convention on the High Seas, Articles 24 and 25 deal with the prevention of pollution:
Article 24: Every State shall draw up regulations to prevent pollution of the seas by the discharge of oil from ships or pipelines or resulting from the exploitation and exploration of the seabed and its subsoil, taking account of existing treaty provisions on the subject. Article 25: 1. Every State shall take measures to prevent pollution of the seas from the dumping of radioactive waste, taking into account any standards and regulations which may be formulated by the competent international organizations.

56 states are parties to the Convention on the High Seas and 53 states to the Convention on the Continental Shelf; Multilateral Treaties in respect of which the Secretary-General performs depositary functions List of Signature, Ratifications Accessions, etc., as at 31 December 1976, ST/LEG/SER.D/10 pp. 506-508 and 516, 517.

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2. All States shall co-operate with the competent international organizations in taking measures for the prevention of pollution of the seas or air space above, resulting from any activities with radioactive materials or other harmful agents.

In connection with Article 25 it is worth mentioning that there are interpretations according to which the provisions on the prevention of radioactive pollution do not entail a ban on dumping such radioactive wastes where their dumping is carried out in a manner which does not cause contamination of the sea. On the other hand, dumping which results in the pollution of the sea is prohibited regardless of the question whether it is carried out on the high seas, in territorial seas or in a river. Every dumping which results in the pollution of the sea by radioactivity must be prevented. The Convention on the Continental Shelf contains some provisions aimed at the prevention of the pollution which could be caused as a consequence of the exploration of that area of the seabed (together with the exploitation of its natural resources) over which the coastal state exercises sovereign rights. The coastal state is entitled to establish safety zones around installations and other devices constructed on the continental shelf (to a distance of 500 meters) and to take such measures in those zones as are necessary for their protection. But, at the same time, the coastal state is obliged to undertake in such zones all appropriate measures for the protection of the living resources of the sea from harmful agents Article 5(7). The dangers resulting from the exploration and exploitation of the seabed and its subsoil are therefore mentioned in the 1958 Geneva Conventions in relation to the rgimes of the high seas and the continental shelf. Such threats were also dealt with in the Declaration of Principles Governing the Sea-Bed and the Ocean-Floor, and the Subsoil thereof, beyond the Limits of National Jurisdiction.2 This Declaration is the initial instrument on which the elaboration of a new rgime for the international seabed area has been based. Paragraph 11(a) provides that, with respect to activities in this area, states shall take appropriate measures for, and shall co-operate in the adoption and implementation of, international rules for the prevention of pollution and contamination, and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment. Many participants in UNCLOS III expressed their conviction that the provisions of this Declaration have already been incorporated into the body of general customary international law.

Resolution 2749/XXV adopted by the General Assembly of the United Nations on 17 December 1970.

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1.2.

IMCO Conventions

Within the framework of the Inter-Governmental Maritime Consultative Organization (IMCO) many international instruments dealing with the prevention of pollution of the sea have been adopted.3 Although the International Convention for the Prevention of Pollution of the Sea by Oil was concluded on 12 May 1954, which was before IMCO began its operations, the Organization had been designated to perform depositary functions. The 1954 Convention contains rules the purpose of which is to prevent deliberate pollution of the sea by the discharge of oil from ships. It has been amended several times; the Amendments adopted in 1962 and in 1969 are in force in all the States Parties to the Convention.4 The Convention applies to all sea-going vessels, except tankers of under 150 tons gross tonnage and other ships of under 500 tons gross tonnage. Its provisions do not apply to ships engaged in the whaling industry or to warships. Nevertheless, the Contracting States undertake to adopt appropriate measures ensuring that requirements equivalent to those accepted in the Convention are applied to warships. Before the 1969 Amendments came into force (20 January 1978), it was forbidden to discharge oil in a zone along the coast. Such discharge was prohibited in all sea areas within 50 miles of the nearest land, and in some specially endangered areas the prohibited zones were extended to a distance of 100 miles. Such was the case in the Mediterranean and the Adriatic Seas, where the prohibited zones comprised the sea areas within a distance of 100 miles from the coast of each State Party to the Convention. Now, the Convention is generally based upon the principles of the total prohibition of oil discharge. The discharge of oil or oily mixtures is forbidden in all sea areas unless the ship is proceeding en route and the rate of discharge of oil does not exceed 60 litres per mile. Besides the conditions imposed upon all shipping, two further requirements are provided for tankers and two for ships other than tankers. As far as tankers are concerned, the total quantity of oil discharged on a ballast voyage must not exceed 1/15,000 of the total

On IMCO activities in the regulation of sea pollution: Ia. A. Ostrovskii, International Legal Protection of the Seas from Pollution, 3 Ocean Development and International Law (1975, 1976) pp. 287-302; A.Ch. Kiss, Survey of Current Developments in International Environmental Law, (Morges 1976) pp. 57-68; L. Juda, IMCO and the Regulation of Ocean Pollution from Ships 26 The International and Comparative Law Quarterly, (1977) pp. 558-584. The 1954 Convention came into force on 26 July 1958 (UN Treaty Series, vol. 327 p. 3). The Amendments adopted on 13 April 1962 came into force on 18 May and 28 June 1967 (UN Treaty Series, vol. 600 p. 332) and those adopted on 21 October 1969 came into force on 20 January 1978 (ILM (1970) p. 1). Amendments adopted on 12 and 15 October 1971 (the first being designated to provide protection for the Great Barrier Reef off the Australian coast and the second concerning tanker arrangements and limitation of tanker size) are not yet in force (ILM (1972) p. 267); Status of Multilateral Conventions and Instruments in Respect of which the Inter-Governmental Maritime Consultative Organization or its Secretary-General acts as Depositary as at 31 December 1977 (Status).

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cargo-carrying capacity, and the tanker has to be more than 50 miles from the nearest land. For other ships it is required that the oil content of the discharge is less than 100 parts per 1,000,000 parts of the mixture, and that the discharge is made as far as practicable from land. To enable ships to abide by the provisions of the Convention, States Parties have to provide, at their ports, oil-loading terminals and repair ports, facilities adequate for the reception of oil and oil mixtures the discharge of which in the sea is prohibited. All the Contracting States may furnish evidence of alleged contraventions to the government of the ships registry. That government, once notified, shall investigate the matter and cause proceedings to be taken. Contraventions of the provisions of the Convention are punishable under the law of the flag state. Penalties which may be imposed in respect of unlawful discharge outside that states territorial sea must not be less than the penalties which may be imposed for such infringements within its territorial sea. The 1954 Prevention of Pollution Convention (with all its subsequent Amendments) should be replaced by the International Convention for the Prevention of Pollution from Ships, adopted by an Inter-Governmental Conference in London, on 2 November 1973.5 While the 1954 Convention deals only with oil pollution, the new Convention deals with a wide range of harmful substances, a harmful substance being defined in the Convention as:
any substance which, if introduced into the sea, is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea, and includes any substance subject to control by the present Convention (Art. 2(2)).

The Convention applies to vessels of any type, but excludes from its application warships and all other state ships which are on government non-commercial service only. With regard to the discharge of oil, general conditions have been imposed along the lines of the 1954 Convention, as amended in 1969. But, at the same time special areas have been designated in which no discharge is permitted. The Mediterranean Sea, including the Adriatic, is included in the list of special areas. It is the duty of every state whose coasts border a special area to ensure that all loading terminals and repair ports within the special area are provided with facilities adequate for the reception and treatment of all dirty ballast and tank washing waters from

ILM (1973) p. 1319. Five Annexes and two Protocols were adapted at the same time as the Convention. For the time being only two states (Sweden and Tunisia) are parties to the Convention (Status). On 17 February 1978 a Protocol to the International Convention for the Prevention of Pollution from ships was adopted. This Protocol is merged with the Convention into one single instrument. The Protocol is open to ratification by any state, which in doing so must give effect both to the Convention and the Protocol; it will come into force concurrently with the Convention (IMCO MSC XXXVIII/4-6 March 1978).

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oil tankers, and to provide all ports in such areas with adequate reception facilities for other residues and oily mixtures from any sort of ship. Rules on the construction, equipment and control of tankers have also been included in the scope of the Convention. The Convention envisages the co-operation of States Parties in the detection of violations and the enforcement of the provisions of the Convention, but it is up to each particular state to punish its ships according to its own laws. A ship to which the Convention applies may, when in any port or off-shore terminal of a Contracting State, be inspected by the authorities of that Contracting State in order to ascertain whether the ship discharged harmful substances contrary to the provisions of the Convention. But, this right of the port state may be limited by the right of the flag state to provide verification certificates in respect of its ships. It is only for violations of the requirements of the Convention committed within its territorial jurisdiction that a coastal state is entitled to impose sanctions under its own law covering all ships. The 1954 and 1973 Conventions deal with the prevention of the deliberate discharge from ships of liquids which could he harmful to the marine environment and to human health. The wrecking of the tanker Torrey Canyon (March 1967) highlighted the danger from maritime accidents involving ships carrying oil and other harmful substances. Soon after that accident, the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties was concluded (Brussels, 29 November 1969).6 The basic rule of that Treaty was laid down in Article I:
1. Parties to the present Convention may take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences.

The meaning of the term related interests is given in the Convention itself. They include maritime coastal activities (including fisheries), tourist attractions, the health of the coastal population and the well-being of the coastal area, including the conservation of living marine resources (Art. II(4)). The Convention does not specify the measures which coastal states are entitled to take, but it has been stated that they are to be in proportion to the actual or threatened damage. Such measures must not unnecessarily interfere with the rights and interests of other states and individuals and they must cease as soon as the aims set out in Article I have been achieved. Except in cases of extreme urgency, the coastal state has to consult with other states affected by a particular maritime accident, in particular with the flag state, and must notify the proposed measures to all physical or corporate persons whose

ILM (1970) p. 25.

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interest may be affected by those measures. Parties causing damage to others, by taking measures in contravention of the provisions of the Convention, are obliged to pay compensation. No measures may be taken against warships or other ships owned or operated by a state and used, at the relevant period, on government non-commercial service only. Installations or devices engaged in the exploration or exploitation of the resources of the seabed are also excluded from the application of the Convention. In connection with the basic principle of the Convention the right of coastal states to intervene on the high seas it is necessary to point out that the Institut de Droit International unanimously supported the view of Juraj Andrassy, its rapporteur in this matter, that this principle was based on customary law. It was the opinion of the members of the Institute, based on states right of self-protection, which exists as a rule of positive customary international law, that in the case of a maritime accident which threatens its coast with grave and imminent danger, a coastal state may take measures necessary to prevent, mitigate or eliminate such danger, even if the measures affect foreign ships.7 This fundamental rule, as well as the rule laying down the conditions for the exercise of the coastal states rights, was accepted by the Institute in the Resolution adopted at its Edinburgh session in 1969.8 On 2 November 1973 a Protocol to the 1969 Brussels Convention was adopted, extending the right of intervention on the high seas to cases of marine pollution by harmful substances other than oil.9 At the same time as the Convention Relating to Intervention on the High Seas, the International Convention on Civil Liability for Oil Pollution Damage was concluded (Brussels 29 November 1969).10 The provisions of this Convention apply to damage caused by pollution resulting from the escape or discharge of oil from ships; their application is limited to ships carrying oil in bulk as cargo. This Convention applies exclusively to pollution damage caused on the territory (including the territorial sea) of the Contracting States, and is not to be applied to warships and other ships owned or operated by a state and used only on government non-commercial service.

8 9 10

Institut de Droit International, ed., Douzime Commission, Etudes des mesures les plus aptes prvenir la pollution des milieux maritimes, Rapport provisoire prsnte par M. Juraj Andrassy, (Geneva 1969) pp. 27-29. Institut de Droit International, Session dEdinbourg, 4-13 Septembre 1969, Resolutions adoptes par lInstitut, (Geneva 1969) p. 8. ILM (1974) p. 605. ILM (1970) p. 45. Besides the inter-state Convention on Civil Liability, tanker owners themselves concluded agreements dealing with their liability for oil pollution: on 7 January 1969 Tanker Owners Voluntary Agreement Concerning Liability for Oil Pollution (Tovalop) was signed (ILM (1969) p. 497), and on 14 January 1971 the Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution (Cristal) was adopted, see ILM (1971) p. 137.

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The owner of the ship is liable for any pollution damage. His liability is of a strict nature. He is entitled to limit his liability in respect of any one incident to an aggregate amount of 2,000 Poincar francs for each ton of the ships tonnage (except for cases in which the incident occurred as a result of his actual fault or privity). The aggregate amount cannot in any event exceed 210 million francs. Contracting States are obliged to require the owners of ships carrying more than 2,000 tons of oil in bulk as cargo to maintain insurance or other financial security to cover their liability for pollution damage.11 In contrast with all the above mentioned IMCO Conventions, which deal with pollution which is the consequence of navigation, the 1972 Convention on the Dumping of Wastes at Sea (opened for signature on 29 December 1972)12 regulates the prevention of pollution of the sea from any deliberate disposal at sea of wastes from vessels, aircraft, platforms or other man-made structures. The provisions of the Convention do not apply to incidental dumping or to the disposal of wastes derived from the normal operation of vessels, aircraft or structures, or from the exploration or exploitation of seabed mineral resources. The disposal of the most dangerous substances and materials [black list] has been absolutely prohibited; the disposal of others is permitted only if certain conditions are satisfied. For some of these, the issue of special permits is required before their disposal [grey list], and for the dumping of others a prior general permit is necessary. The factors to be considered when permits are issued are also provided for in the Convention, and every Contracting State must nominate an appropriate authority to issue permits. Parties have agreed to co-operate in order to attain an effective application of the Convention, particularly on the high seas; outside the territory of each party, enforcement remains the right of the flag state.

1.3.

Lex ferenda (UNCLOS III)

The consideration of trends de lege ferenda concerning the protection and preservation of the marine environment could embrace several new global, regional and bilateral legal

11

12

The IMCO Convention on Limitation of Liability for Maritime Claims (concluded in London, 19 November 1976) incorporates a new unit of account the International Monetary Fund Special Drawing Rights. The adoption of this new unit, together with a system of calculating the limits of liability in another monetary unit for states which do not use the Special Drawing Right to determine values in national currency, made it desirable to modify the 1969 Convention on Civil Liability as well as the 1971 Convention on the establishment of an International Fund. In order to amend these two Conventions, Protocols to both Conventions were also adopted on 19 November 1976 (ILM (1977) pp. 617 and 621). As of 31 December 1977 there have been only a few signatures and no ratifications on the two Protocols (Status). ILM (1972) p. 1291.

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proceedings.13 However, we intend to limit our analysis for the purpose of this paper to the work of the most important current global international diplomatic conference in this field, namely, UNCLOS III.14 The question of the protection of the marine environment is assigned to its Third Committee and forms part of the Informal Composite Negotiating Text (ICNT)15 which represents the informal comprehensive draft treaty on all relevant aspects of the new Law of the Sea. After dealing first with main general provisions of the ICNT we intend to tackle briefly the ICNT provisions regarding different sources of pollution of the marine environment. 1.3.1. General provisions The relevant Chapter of the ICNT begins with the basic principle that States have the obligation to protect and preserve the marine environment (Art. 193). We consider this principle as the expression of the general principle of law ne pas nuire aux autres. Moreover, it is a step forward in the international legal elaboration of states fundamental environmental obligations deriving from the letter and spirit of the 1972 Stockholm Declaration on Human Environment.16 In the Chapter on pollution and preservation of the marine environment the ICNT also affirms the sovereign right of states to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment. It is a compromise, accomodating two principles of general international law binding as customary norms of international law, namely the duty of states to protect and preserve the marine environment and the sovereign right of states to exploit their natural resources. In this way the ICNT purports at the same time to contribute to the building of the New International Economic Order, on the one hand, and to safeguard the marine environment, on the other. Let us now try to summarize the way in which the ICNT tries to regulate globally the marine environment. Still under the heading of general provisions, the ICNT calls upon states to use the best practicable means at their disposal to prevent and control marine pollution from any source, to ensure that activities under their jurisdiction or control do not cause pollution damage to other states, and to ensure that pollution arising from incidents or

13 14 15 16

Particularly important is the work of IMCO and UNEP. UNCLOS III is already in its Seventh Session in Geneva. UN Doc. A/CONF.62/WP.10(1977). See, in particular, principles 7 and 21; Report of the UN Conference on the Human Environment, UN Doc. A/CONF.48/14/Rev.1 (1977).

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activities under their jurisdiction or control do not spread beyond the areas where they exercise sovereign rights. There is in the ICNT also an obligation not to transfer damage or hazards from one area to another, or to transform one type of pollution into another. States are required to co-operate globally and regionally in formulating rules, standards and recommended practices and procedures for the protection and preservation of the marine environment. The ICNT also contains provisions for the notification of imminent or actual damage, contingency plans against pollution, promotion of studies, research programmes and exchange of information and data about pollution. Parties are prepared to commit themselves to promote technical assistance to developing countries for preserving the marine environment, minimizing the effects of major pollution incidents and helping to prepare environmental assessments. Developing countries have priority in the allocation of international funds and facilities in these matters. There is also a legal responsibility on states to co-operate in global or regional international monitoring programmes concerning risks and effects of marine pollution. 1.3.2. Pollution from land-based sources This source, which is the most frequent cause of marine pollution, falls within the realm of national laws and regulations which should take into account internationally agreed rules, standards, and recommended practices and procedures to prevent, reduce and control pollution of the sea. The ICNT calls upon states to endeavour, in particular through competent international organizations, to establish global and regional rules, standards, practices and procedures to this end. States are entitled to enforce their national laws and regulations, as well as applicable international organizations or diplomatic conferences, in this field. 1.3.3. Pollution from seabed activities Here again it is up to the coastal states to establish national legislation regarding pollution arising from seabed activities under their jurisdiction and from artificial islands, installations and structures under their jurisdiction. Such national legislation and corresponding measures must be no less effective than international rules, standards, procedures and practices. States shall establish, and from time to time re-examine, global and regional rules, standards, and recommended practices and procedures to combat this kind of pollution.

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States shall enforce their national legislation and applicable international rules and standards established through appropriate international fora.17 1.3.4. Pollution from activities in the international seabed area18 The ICNT envisages the establishment of international rules, standards, practices and procedures, in accordance with the legal regime for the international seabed area, to prevent, reduce and control pollution of the marine environment from activities relating to the exploration and the exploitation of the area. In addition, states must establish national legislation governing the activities in the area of vessels, installations, structures and other devices flying their flag or which have been registered with them. The requirements of such national legislation must be no less effective than the equivalent international legislation. It has been argued19 that the marine environment of the high seas and the seabed area is not sufficiently protected by the provisions of the ICNT. 1.3.5. Dumping20 In establishing national legislation against pollution of the marine environment by dumping, states must ensure that dumping is not carried out without the permission of their competent authorities. This legislation must be no less effective in abating pollution from dumping than global rules and standards. States must endeavour to create such international rules and standards. Such national laws and regulations adopted in accordance with applicable international rules and standards are to be enforced by (a) the coastal state with regard to dumping within its territorial sea or its exclusive economic zone or on its continental shelf (b) the flag state with regard to vessels and aircraft registered in its territory or flying its flag and (c) any state with regard to acts of loading of wastes or other matter occurring within its territory or at its off-shore terminals.

17

18 19 20

UNEPs Working Group of Experts on Environmental Law discussed this question during its Session in Geneva from 3-12 April 1978 on the basis of the Study of offshore mining and drilling carried out within the limits of national jurisdiction, prepared by Professor A.L.C. de Mestral, UNEP consultant (UNEP/WG.14/ 2, 23 February 1978). Henceforth referred to only as Area. See J. Schneider, Something Old, Something New: Some Thoughts on Grotius and the Marine Environment, 18 Virginia Journal of International Law (1977) pp. 162, 163. There was at the Sixth Session of UNCLOS III a discussion whether the word incineration should be added to the term dumping as proposed by the French delegation. However, the view prevailed that the notion of dumping in the London Convention of 1972 covered the notion of incineration too. The question was raised again at the Seventh Session of UNCLOS III.

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1.3.6. Pollution from or through the atmosphere States, in establishing national legislation concerning the pollution of the marine environment from or through their air-space, or with regard to vessels or aircraft flying their flags, must take into account internationally agreed rules, standards, recommended practices and procedures. They must also endeavour to establish such global and regional legal regimes and agreements. 1.3.7. Pollution from vessels This proved to be the most controversial and time consuming item at UNCLOS III, since it brought into opposition on the one hand the developing countries and coastal states seeking primarily to protect their coastlines, and, on the other, the maritime powers, which wanted to keep the freedom of navigation as unrestricted as possible. Gradually a consciousness of the environment became more manifest at UNCLOS III, although many still take the view that it is not adequately reflected in the ICNT.21 But there is wide agreement that the relevant environmental ICNT provisions are a carefully negotiated compromise holding the balance between the opposed views. The ICNT envisages, to combat pollution from vessels, international rules and standards as well as legislation by states governing vessels flying their flag or which have been registered with them. Such national legislation must have at least the same effect as that of generally accepted international rules and standards. The ICNT foresees legislation by coastal states governing ships in their territorial seas which must not hamper the innocent passage of foreign vessels22 and also national legislation by coastal states concerning the exclusive economic zone, conforming and giving effect to generally accepted international rules and standards. The ICNT also provides for the possibility of declaring special areas with special laws and regulations issued by states in their exclusive economic zones under special circumstances and with the authorization of the competent organization.23 Such additional laws and regulations would implement the international rules and standards for discharge or navigational practices, which are made applicable through IMCO for special areas.24 The procedure for obtaining permission from IMCO is very complicated and lengthy,

21 22 23 24

See, e.g., Conservation and the New Law of the Sea, IUCN Statement on the Informal Composite Negotiating Text of UNCLOS III, International Union for Conservation of Nature and Natural Resources, February 1978. The question of environmental dangers as an element in the limitation of the right of innocent passage of vessels was one of the most debated items at UNCLOS III. The delegations at present undoubtedly have IMCO in mind. The problem of special areas would deserve special study in the light of the 1969 Amendments to the 1954 London Convention on the Prevention of Pollution by Oil and the 1973 new London Convention.

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which caused strong opposition on the part of six delegations.25 The institution of special areas is of great importance for countries bordering semi-enclosed seas, in particular the Mediterranean and Adriatic Sea. As regards the very delicate problem of enforcement, this is the responsibility of the flag state, the port state and the coastal state, depending in particular on the location of the violation. The flag state is bound to ensure compliance by its vessels with applicable international rules and standards and with its national legislation concerning pollution of the sea, and to provide for their effective enforcement regardless of where the violation occurred. The flag state must take appropriate measures to implement the requirements of international rules and standards for navigation, including those concerned with the design, construction, equipment and manning of vessels. The flag state also has special duties concerning ships certificates, periodical inspection, investigation in the case of violations of international rules and standards, proceedings, the supply of information to a state requesting it and to the competent international organization concerning the action taken and its outcome. The flag state is also bound to impose adequate and severe penalties by legislation aimed at discouraging violations wherever they occur. Enforcement by the port state applies to investigations and, where warranted by the evidence, the commencement of proceedings in respect of any discharge from a vessel in violation of the applicable international rules and standards occurring outside its internal waters, territorial sea or exclusive economic zone, when the vessel is voluntarily in a port or at an off-shore terminal of that state. The port state must, as far as practicable, comply with requests from any coastal state to investigate discharge violations of international rules and standards within its internal waters, territorial sea or exclusive economic zone, or from the flag state concerning such violations wherever they may have occurred.26 The port state also assumes certain obligations concerning the transfer of records of investigations to the flag state or the coastal state at their request, and the duty to suspend such an investigation on the request of the coastal state. The port state may, in certain cases, prevent a vessel from sailing. It may, however, permit the vessel to proceed, but only to the nearest appropriate repair yard. The enforcement powers of the coastal state vary according to the position of the ship which committed the violation and the place where the violation occurred. The coastal state may bring proceedings in respect of any violation of its national laws and regulations established in accordance with the projected Convention on the Law

25 26

China, India, Kenya, Pakistan, Somalia and Tanzania. Some developing countries, being also port states, were reluctant to assume this responsibility, stressing their inability to act in each and every case. This argument was advanced, e.g., by Singapore in the Third Committee of UNCLOS III.

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of the Sea or applicable international rules and standards concerning pollution from vessels, when the violation has occurred within its territorial sea or its exclusive economic zone and when the vessel is voluntarily in a port or at an off-shore terminal of that state. It may also undertake physical inspections and, when the evidence warrants it, institute proceedings, including the arrest of the vessel, where there are clear grounds for believing that a vessel navigating through its territorial sea has, during that passage, violated the above-mentioned rules and standards. When such a violation happens in the exclusive economic zone of the coastal state and the vessel is navigating within its exclusive economic zone or its territorial sea, then the coastal state is entitled to require the vessel to give information of its identification, its port of registry, and its last and next port of call, together with other relevant information. When, in such a case, a violation results in a substantial discharge into and in significant pollution of the marine environment, the coastal state may undertake a physical inspection of the vessel where information is refused, if the information supplied is manifestly at variance with the evident factual situation, etc. The coastal state may, in cases of flagrant or gross violations of the relevant rules and regulations, resulting in a discharge causing major damage or the threat of major damage to the coastline or related interests of the coastal state, bring proceedings under its laws. However, the coastal state must allow the vessel to proceed if it is bound by procedures established either through the competent international organization or by agreement between states, under which procedures a monetary bond or other appropriate financial security has been provided. At the 1978 Session of UNCLOS III the main discussion concerning pollution of the sea concentrated on proposals presented by the French delegation designed to strengthen the coastal states right of intervention outside its territorial sea when its marine environment is in danger. 1.3.8. Safeguards The ICNT sets out a number of safeguards to prevent unlawful action against vessels accused of pollution. The inclusion of these in the ICNT was of particular concern to the maritime powers. The articles relating to safeguards deal, inter alia, with measures to facilitate proceedings, the exercise of powers of enforcement, the duty to avoid adverse consequences in the exercise of powers of enforcement, the investigation of foreign vessels, suspension and restriction on institution of proceedings, institution of civil proceedings, monetary penalties and the observance of recognized rights of the accused, notification to flag states and other states concerned, the liability of states arising from

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enforcement measures, and safeguards with respect to straits used for international navigation. 1.3.9. Responsibility and liability; sovereign immunity; settlement of disputes States are also made liable under international law for damage which they cause through violation of their international obligation to combat marine pollution. However, the anti-pollution provisions of the ICNT do not apply to state-owned or operated ships or aircraft, including warships, used only on government non-commercial service, although states are obliged to ensure that such vessels act in a manner consistent with the new Convention so far as reasonable and practicable (Art. 237 ICNT). For the settlement of disputes in connection with the protection and preservation of the marine environment and the pollution of the sea, the ICNT institutes special arbitration procedures. The powers to draw up the list of experts for this purpose are given to UNEP and IMCO. Conciliation procedures are also envisaged by the ICNT. 1.3.10. Obligations under other conventions When these provisions, now representing lex ferenda, become lex lata, they will be without prejudice to the specific obligations already assumed by states under special conventions and agreements relating to the protection and preservation of the marine environment. Nevertheless, such special obligations should be applied in a manner consistent with the general principles and objectives of the Conventions on the Law of the Sea.

2.

REGIONAL INTERNATIONAL LAW: THE MEDITERRANEAN AREA

Due to its specific hydrographical and ecological characteristics, the Mediterranean Sea, as well as some other semi-enclosed seas, is particularly vulnerable to pollution. The existing international conventions of world-wide scope do not cover, in the view of the Mediterranean states, all aspects and sources of marine pollution and do not entirely meet the special requirements of the Mediterranean Sea Area (Preamble to the Barcelona Convention). These were the basic reasons for the conclusion of the Convention for the Protection of the Mediterranean Sea Against Pollution. The Convention was signed at Barcelona, on 16 February 1976. At the same time two Protocols to the Convention were adopted: the Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft and the Protocol concerning Co-operation in Combating

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Pollution of the Mediterranean Sea by Oil and Other Harmful Substances in Cases of Emergency.27 The 1976 Barcelona Convention and the Protocols apply to the Mediterranean Sea proper, including its gulfs and seas, the Black Sea being excluded. The internal waters of the Contracting Parties are also excluded from the application of the provisions of the Convention. Only rules of a general nature have been included in the Convention itself. The Contracting Parties have undertaken to institute appropriate measures to prevent, abate and combat pollution of the Mediterranean Sea from all types and sources of pollution: discharges from ships and aircraft, exploration and exploitation of the continental shelf and the seabed and its subsoil, and pollution from land-based sources. It is the intention of the parties to adopt protocols containing detailed rules on different sources of pollution. The two Protocols adopted in Barcelona in 1976 are to be followed by protocols dealing with land-based pollution and pollution resulting from the exploration and exploitation of the seabed and its subsoil. Although the Protocols are separate instruments, signed and ratified separately from the Convention, because of the introductory nature of the Convention and its close link with the Protocols, the following provision has been included in the Convention:
No one may become a Contracting Party to this Convention, unless it becomes at the same time a Contracting Party to at least one of the Protocols. No one may become a Contracting Party to a Protocol unless it is, or becomes at the same time a Contracting Party to this Convention (Art. 23, para. 1).

For the same reasons the entry into force of the Convention was subject to at least one of the Protocols coming into force. The Contracting Parties to this Convention have committed themselves to take, individually and jointly, all appropriate measures to achieve the aims of the Convention. Among the measures of co-operation envisaged, the following are mentioned: the conclusion of bilateral, sub-regional or regional agreements; co-operation in taking the necessary measures for dealing with pollution emergencies; the establishment of joint programmes for monitoring pollution; the holding of meetings by the Contracting Parties in order to keep the implementation of the Convention and the Protocols under review, etc. In giving effect to their obligations to prevent and abate pollution of the Mediterranean Sea area by dumping from ships and aircraft, the Contracting Parties to the Protocol for

27

ILM (1976) p. 285. The Convention and both the Protocols came into force on 12 February 1978, and there are nine Contracting Parties at the moment: the European Economic Community, France, Israel, Lebanon, Malta, Monaco, Spain, Tunisia and Yugoslavia. Each Protocol has been accepted by eight Parties; the European Economic Community is Party only to the Protocol concerning dumping, and Israel to the Protocol dealing with co-operation in combatting pollution.

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the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft have divided all wastes and other matter into three categories. The dumping of those listed in Annex I to the Protocol is prohibited. The dumping of wastes and other matter listed in Annex II requires, in each case, a special prior permit, and the dumping of all other wastes or matter requires a general prior permit from the competent national authorities. The factor which must be considered when the permits are issued are set out in Annex III to the Protocol and include: the characteristics and composition of the matter and the characteristics of the dumping site, the method of deposit and general considerations and conditions. The competent authorities of each party are to issue permits in respect of wastes or other matter intended for dumping loaded in its territory and also in respect of those loaded by a ship or aircraft registered in its territory or flying its flag, when the loading occurs in the territory of a State not Party to this Protocol (Art. 10(2)(a)). Each party is to apply the measures required to implement the Protocol to ships and aircraft registered in its territory, to ships and aircraft loading in its territory or believed to be engaged in dumping in areas under its jurisdiction. Besides those treaty provisions, the 1976 Barcelona Conference accepted a Resolution (No. 3) inviting the parties to the Protocol to prevail upon other states to take appropriate steps to ensure that ships flying their flags and aircraft registered in their countries will observe the basic principles of the Protocol. Although basically the Protocol Concerning Co-operation in Combating Pollution of the Mediterranean Sea by Oil and Other Harmful Substances in Cases of Emergency has been drafted along the lines of the 1969 IMCO Convention Relating to the Intervention on the High Seas in Cases of Oil Pollution Casualties, several important differences between these two instruments are to be noted. The Protocol deals not only with dangers following upon a maritime accident, but also with every danger due to the presence of massive quantities of oil or other harmful substances resulting from accidental causes or an accumulation of small discharges... (Art. 1). The 1969 Convention is based on the individual actions taken by coastal states while the Barcelona Protocol establishes a system of individual and joint measures between the Mediterranean states to prevent and combat pollution. The Contracting Parties have undertaken to maintain and promote their contingency plans and means for combating pollution, to develop and apply monitoring activities covering the Mediterranean Sea, and to disseminate relevant information concerning pollution. In order to collect information, parties are to issue instructions to their ships and aircraft requiring them to report all accidents likely to cause pollution, the presence of spillages of oil and other harmful substances observed at sea which are likely to present a serious threat to the marine environment and to the coasts. The Mediterranean states did not want to base their collective efforts merely on sporadic joint activities, but decided to establish regional and sub-regional oil-combating

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centres in the Mediterranean area. In accordance with a Resolution (No. 7) of the Barcelona Conference, the Regional Oil-Combating Centre for the Mediterranean has already been established. Its headquarters are in Malta, and it is sponsored by the IMCO and the UNEP. The main objectives of the Regional Centre are to assist Mediterranean states to develop and strenghten their own national ability to combat oil pollution, to facilitate the exchange of information, technological co-operation and training, and to facilitate their co-operation in order to combat massive pollution by oil.

3.

THE EMERGING SUB-REGIONAL INTERNATIONAL LAW: THE ADRIATIC SEA

Notwithstanding that the Mediterranean states already intended to conclude a convention for the protection of the Mediterranean Area, the Governments of Italy and Yugoslavia were of the opinion that they had to engage in joint bilateral action to deal with the specific pollution problems of the Adriatic. Both States are active in the common efforts of all the Mediterranean countries, but the specific features of marine environmental problems in the Adriatic Sea require their close co-operation in order to protect their Adriatic waters. On 14 February 1974 the two Governments signed at Belgrade the Agreement on Cooperation for the Protection of the Waters of the Adriatic Sea and Coastal Zones from Pollution.28 On the basis of that Agreement a Mixed Commission for the Protection of the Waters of the Adriatic Sea and Coastal Zones has been appointed. The Commission is entrusted with the following tasks: to examine all questions concerning pollution of the Adriatic Sea and coastal zones, to propose to both Governments measures necessary to prevent and combat pollution and to submit proposals for the adoption of international regulations designed to ensure the purity of the waters of the Adriatic Sea. Besides the right to establish sub-commissions for the study of particular questions, the Commission is authorized, for the purpose of obtaining more detailed scientific and technical information, to enter into contact with international organizations concerned with the protection of waters and with other mixed Italian-Yugoslav bodies concerned with navigation, fishing and the management of common waters in general. At its first meeting (Dubrovnik, 29 June1 July 1977) the Joint Commission adopted its Rules of Procedure and established three sub-commissions. The function of the First Sub-Commission is co-operation in scientific research and co-ordination of the monitoring of the Adriatic waters and coastal areas. It is entrusted with the verification of the present state of pollution on the basis of the existing scientific research projects in both States

28

For the English translation of the Agreement, see M. Nordquist and S. Houston Lay, eds., New Directions in the Law of the Sea, Documents vol. VI, ed., 1977 p. 456.

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and with the elaboration of a detailed programme of joint monitoring of the international waters of the Adriatic. It is also the task of this Sub-Commission to propose adequate measures for the improvement of co-operation in scientific research in both countries. The remit of the Second Sub-Commission is pollution of the Adriatic Sea by oil from all sources ships, oil refineries and other land-based oil pollution. The objectives of this Sub-Commission are: to evaluate the results of the implementation of international conventions accepted by the two States and dealing with pollution; to propose measures for the better application of international regulations; to elaborate proposals for the improvement of the safety of navigation, taking into account the specific characteristics of the Adriatic Sea; and to propose necessary measures which the two States should take jointly in the case of incidents which may cause grave danger to the marine environment and the coasts of the Adriatic. In proposing such measures account must be taken of the existing international organizations, including the Regional Oil-Combating Centre for the Mediterranean in Malta. Finally, there is a Third Sub-Commission dealing with legal and administrative questions. The function of this Sub-Commission is to prepare a comparative survey of national and international legal norms applicable to prevention and abatement of the pollution of the Adriatic. Furthermore, on the basis of the work of the other two subcommissions, this Sub-Commission is to formulate proposals for necessary amendments to municipal as well as international rules. Such proposals should take into account the special features of the Adriatic Sea and its coasts as well as the economic interests of both States. All three sub-commissions met in Rovinj from 28-30 March 1978 and selected priority issues to be dealt with in the first period of co-operation between the two neighbouring States. The 1974 Agreement is not the only treaty concluded between Yugoslavia and Italy which provides for their co-operation in the protection of the environment. Their joint efforts in this field are also mentioned in the Osimo Agreements concluded between the two States (11 November 1975) for the final solution of the problems resulting from the existence of the Free Territory of Trieste in the years 1947-1954.29 The existing co-operation between Italy and Yugoslavia in the field of the protection of the Adriatic Sea anticipated the obligations of states bordering semi-enclosed seas which appear in the informal draft of UNCLOS III mentioned above the ICNT. Namely, in Article 123(b) it is laid down that such states endeavour to co-ordinate the implementation of their rights and duties with respect to the preservation of the marine environment.

29

For the text in French and Croat: Slubeni list SFRJ, Medunarodni ugovori (Official Journal of the SFR of Yugoslavia, International Treaties), 1977, no. 1 p. 3.

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4.

CONCLUSIONS

Ever-growing pollution of the sea and more and more frequent and grave accidents causing pollution prompted states to adopt, on global, regional and bilateral levels, a number of international conventions constituting an important source of international treaty law. Simultaneously, a certain number of general and particular norms of customary international law has developed through the practice of states. Some norms, particularly those of a technical nature, soon became obsolete as a result of the tremendous progress of science and technology. Therefore, the process of revision and progressive development, together with the new codification of relevant international norms and standards, is taking place in the framework of the United Nations and some of its related specialized agencies and other bodies. The most important outcome is UNCLOS III, an expression of the building of a new general umbrella law of the sea treaty dealing with the questions of the protection and preservation of the marine environment. Hence, we can undoubtedly conclude that there is quite a comprehensive body of lex lata and emerging lex ferenda on pollution of the sea matters. The question which has to be answered is, consequently, whether the existing legal rules concerning pollution of the sea and the draft articles of the ICNT adequately implement the general principles and duties of states to protect and preserve the marine environment. Several conclusions might be drawn about this: 1. Analysis of the legal instruments concerning different sources of pollution of the sea shows that the bulk of legal norms is devoted to the question of the pollution of the sea from vessels and that other sources are not yet sufficiently covered by legal rules. In particular, dangerous pollution from land-based sources has not yet resulted in substantial legislation, with the exception of the European Convention for the Prevention of Marine Pollution from Land-Based Sources, concluded in Paris, on 4 June 1974. There is a legal vacuum on pollution from seabed activities. Even on dumping which is already legally regulated, the question has arisen whether incineration is covered by the 1972 London Convention on Dumping. 2. The formulation of legal rules concerning pollution of the sea is the result of a complicated process of reconciliation of different interests, which are sometimes in conflict and are sometimes interrelated. For example, the interests of the developed maritime powers who insisted, primarily in order to protect freedom of navigation, on the criterion of generally accepted international rules and standards and flag state enforcement combined with certain powers of port states are opposed to the interest of developing states. The latter are seeking wider legal powers and enforcement by the coastal state, which would, in certain cases, go even beyond international rules and standards, and stress the need for their own environmental policies in connection with the sovereign right to exploit their natural resources. Reconciliation and com-

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3.

4.

5.

6.

7.

8.

9.

promise formulae necessarily suffer from generalities and language which can be interpreted according to their own interests by States Parties. The widespread institution of the flag of convenience represents a special danger to the marine environment because the states of flags of convenience do not carry out their flag state duties properly. This institution is actually contrary to the principle of international law prescribing a genuine link between the vessel and the flag state. This practice ought to be reviewed and regulated so as to protect the marine environment by prevention, rather than by waiting for remedies which can never repair damage already done. Moreover, many states are not yet ready or sufficiently equipped either to carry out their obligations or properly to protect their rights under the relevant legal rules and standards (through lack of reception facilities, ineffective coast guard services, inadequate monitoring services, insufficient national legislation in the field, etc.). An obstacle to the fuller legal protection from pollution of the sea is the exemption of vessels under the principle of sovereign immunity concerning warships and other vessels or aircraft owned or operated by a state. It should not be overlooked that it is not only peaceful uses of the sea and seabed which may cause pollution, but that there are also military activities endangering the marine environment. It is therefore very important that states ratify, adhere to and implement the provisions of treaties like the Nuclear Test Ban Treaty (5 August 1963) or the Treaty Prohibiting the Emplacement of Nuclear and Other Mass Destruction Weapons on the Seabed (11 February 1971). In addition to this adherence to existing legal instruments, states should adopt supplementary legal measures within the framework of disarmament efforts. An analysis of the acceptance of international conventions and other instruments designed to prevent pollution reveals that the process of ratification and adherence by states is a slow one. There should be continued action in different forms to arouse the sense of responsibility of the present generation to protect and preserve the marine environment for mankind. Some positive signs of this nature can be detected, especially at recent Sessions of UNCLOS III. Yugoslavia has ratified nearly all conventions concerning pollution of the sea. Besides the acceptance of international rules on the part of Adriatic states the adherence of many other states to international instruments is essential for the preservation of the marine environment of the Adriatic Area. Among the states we must point out the land-locked European states, whose ships very often use the Adriatic ports, as well as many other states which maintain intensive maritime connections with the Adriatic states and ports. Finally, the authors are of the opinion that the international lex lata and lex ferenda described above concerning the efforts to protect the seas and oceans from pollution

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form, despite all the deficiencies mentioned, an important step forward in the direction of closing the legal gap in the field. By the continuing progressive development and codification of environmental international law, a new and vital part of international law, which should offer better legal foundations for the preservation of our environment from pollution, is born.

Chapter 13

PROVISIONS OF THE DRAFT CONVENTION ON THE LAW OF THE SEA RELATING TO THE PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT AND THE UNEPS INVOLVEMENT IN THEIR IMPLEMENTATION*

1.

UNCLOS DRAFT CONVENTION AND THE PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT Introduction

A.

The new Law of the Sea Convention will contain provisions regulating the majority of the uses of the marine environment: navigation, fishing, scientific research, the exploration and exploitation of its mineral resources, etc. A great many of the provisions relating to these uses of the sea are of environmental concern, particularly those related to the exploration, conservation and management of natural resources, and to scientific research and the transfer of marine technology. Faced with such a wide range of possible subject matters on one hand, and the limited length of this report on the other, taking into account the full range of the terms of reference and the special interest in land-based pollution, we shall orient this report towards the Draft Convention provisions dealing specifically with the protection and preservation of the marine environment. Although provisions dealing with the protection and preservation of the marine environment can be found throughout the Draft Convention, Part XII (Articles 192-237) has been dedicated exclusively to this topic. The provisions outside that Part are usually of a general nature in comparison with those dealing with the same subject matter contained in Part XII (e.g. Article 56 /1/ /b/ on the protection of the marine environment in the exclusive economic zone). Nevertheless, there are instances where the provisions of Part XII refer to detailed rules to be found in other Parts of the Draft (e.g. to the provisions of Part XI in relation to the pollution from activities in the Area). Only taken together do all the Draft Convention provisions on the protection of the marine environment represent a sound international legal system.
* This text (UNEP/IG.28/Background doc. No. 5, 10 August 1981) was prepared for the Ad Hoc Meeting of Senior Government Officials Experts in Environmental Law, held on 28 October 6 November 1981 in Montevideo, Uruguay, and it was submitted to some other meetings organized in autumn 1981 by this UN body.

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Part XII is composed of 11 Sections: (a) Several Sections contain provisions applicable to the protection of the marine environment in general, i.e. rules applicable to all sources of pollution: 1. General Provisions; 2. Global and Regional Co-Operation; 3. Technical Assistance; 4. Monitoring and Environmental Assessment; 9. Responsibility and Liability; 11. Obligations under other Conventions and the Protection and Preservation of the Marine Environment. (b) The content of rules contained in some other Sections makes it clear that they are applicable only to ship-generated pollution: 7. Safeguards (with some exceptions); 8. Ice-covered areas; 10. Sovereign immunity. (c) Finally, Section 5 (International Rules and National Legislation to Prevent, Reduce and Control Pollution of the Marine Environment) and Section 6 (Enforcement) contain special rules in relation to each source of pollution. The provisions of the Draft Convention on the protection and preservation of the marine environment could be analysed on the basis of different approaches: (a) following the system of the present Draft; (b) describing the situation of every particular regime at sea (territorial sea, exclusive economic zone, etc.); (c) analysing different activities (law-making, enforcement, co-operation of states and international organizations, etc.); (d) treating together all the provisions relating to a certain source of pollution (land-based pollution, pollution from vessels, etc.). No one of these approaches has general advantages in comparison with the others, and none suits to the scope of this report perfectly. Taking into account our terms of reference, we have decided to commence this first part of the report by a brief analysis of the general provisions on the protection of the marine environment and afterwards to deal separately with each of the sources of pollution. Our analysis is based on the Informal Text of the Draft Convention on the Law of the Sea,1 in fact the sixth informal version of the Draft, prepared by the Collegium on 27 August 1980. Nevertheless, in relation to many provisions of Part XII, we have used the terminology recommended by the Drafting Committee and adopted by the Plenary Meeting of the Conference during the First Part of its Tenth Session (New York, 6 March24 April 1981). B. General Provisions

1. Main Principles The basic principle of this Part of the Draft Convention, as well as of the customary law in the field (Principle 7 adopted at the 1972 Stockholm UN Conference on the Human

Draft Convention on the Law of the Sea /Informal Text/, U.N. Doc. A/CONF.62/WP.10/Rev.3 /27 August 1980/.

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Environment)2 is expressed in Article 192: States have the obligation to protect and preserve the marine environment. A states sovereign right to exploit its natural resources is also affirmed in the Draft; it has been said that this right must be exercised in accordance with states environmental policies and their duty to protect and preserve the marine environment (Article 193 Stockholm Principle 21). States shall take all necessary measures to carry out their basic duty in relation to the marine environment; to this end they shall use the best practicable means at their disposal and they shall take measures in accordance with their capabilities... (Article 194 /1/). It is important to underline that the drafters of the Convention have taken into account the differences that exist between states. The main consequence to be derived from this provision is the possibility of differentiating between developed and developing states in relation to the interpretation and application of some of the provisions of this Convention, as well as in regard to future national and international actions in the field (double standard). Moreover, some of the environmental provisions have already been stipulated taking into account the special needs of developing states. Scientific and technical assistance has to be provided to such countries. States party to the Convention shall promote programmes of scientific, educational, technical and other assistance to developing states for the protection of the marine environment (Article 202 /a/). The duties to provide appropriate assistance for the minimization of the effects of major incidents and to provide appropriate assistance concerning the preparation of environmental assessment are obligatory upon all party states, especially in relation to developing states (Article 202 /b/ & /c/). Furthermore, for the purpose of abating pollution, developing states shall be granted preference in the allocation of appropriate funds and technical assistance by international organizations and in the utilization of their specialized services (Article 203). Apart from the principle stated in article 192, some other general principles of environmental law have also been codified in the Draft Convention: the duty of states to take all necessary measures to ensure that pollution arising from incidents or activities under their jurisdiction or control: (a) does not spread beyond those areas; and (b) that it does not cause damage to other states and their environment (Article 194 /2/). Furthermore, states are obliged not to transfer damage or hazards from one area to another, or to transform one type of pollution into another (Article 195). They are also obliged to take all measures necessary to protect the marine environment from pollution resulting from the use of technologies under their jurisdiction or control, and from the introduction of species to a particular part of the marine environment, to which they may cause significant and harmful changes (Article 196). All these duties of states relate to all sources of pollution of the marine environment: land-based pollution, pollution from or through the atmosphere, pollution by dumping,

Declaration of the United Nations Conference on Human Environment, in: U.N. Doc. A/AC.138/SC.III/L.17, p. 4.

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pollution from vessels, pollution from installations and devices used in exploration or exploitation of the natural resources of the sea-bed and subsoil and from other installation and devices. States have assumed numerous duties under the headings: Global and Regional CoOperation, Technical Assistance and Monitoring and Environmental Assessment (Sections 2-4) which will be dealt with in the second part of this report (see p. 243), as in the majority of provisions contained in these Sections the co-operation of states and international organizations is envisaged. 2. Relation to Other International Rules and to National Legislation (a) International Rules. Article 311 of the Draft contains the general provisions on the relation of the Law of the Sea Convention to other conventions and international agreements. It establishes predominance of the new Convention over all other international obligations undertaken by states party to the Convention. The new Convention: (a) prevails as between states party to the Geneva Conventions on the Law of the Sea of 1958; (b) alters their rights and obligations arising from other agreements which are not compatible with the new Convention; (c) restricts their liberty to conclude agreements modifying or suspending its provisions. However, it appears that these general rules are not applicable to the relation of the provisions of Part XII to other conventions on the protection and preservation of the marine environment. Namely, it has been provided in Article 311(5) that the provisions of that Article shall not affect international agreements expressly permitted or preserved by other articles of this Convention, and Article 237 (Part XII) deals with Obligations under other conventions on the protection and preservation of the marine environment. Although some aspects of paragraph 5 of Article 311 are not clear, it is beyond any doubt that Article 237 is lex specialis in relation to Article 311 as concerns the relation of the provisions of Part XII to other international rules in the field. In paragraph 1 of Article 237, it has been provided that the provisions of Part XII are without prejudice to the specific obligations assumed by states under special conventions and agreements concluded previously and to agreements which may be concluded in furtherance of the general principles set forth in the Convention. This rule is in accordance with a conception of the Law of the Sea Convention as an umbrella treaty in its environmental provisions. The Convention contains only basic, general principles on the protection of the marine environment, while provisions dealing with particular sources of pollution, with the protection of different seas and with specific questions in relation to the protection of the oceans should be embodied in special international instruments. In accordance with this conception, under Article 197 states have to cooperate in formulating and elaborating international rules, standards and recommended practices and procedures for the protection and preservation of the marine environment. States shall co-operate on a global and, as appropriate, on a regional basis; in formulating

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international norms they shall take into account characteristic regional features. Their co-operation can be direct or through competent international organizations. However, the conception of the umbrella treaty also has another aspect: it envisages the Law of the Sea Convention as a set of environmental provisions of a higher value than other international rules, at least as between states party to the Convention. This results from the requirement that all future international rules, standards, recommended practices and procedures be consistent with the Convention (Article 197) and from the provision that specific obligations assumed by states under special conventions... should be carried out in a manner consistent with the general principles and objectives of this Convention (Article 237 /2/). This last provision is vague, as it seems to be inconsistent with the content of paragraph 1 of the same Article and it could affect obligations of states party to the Law of the Sea Convention towards third states (for whom this Convention is res inter alios acta). (b) National Legislation. The Convention envisages that the protection and preservation of the marine environment be regulated not only by international law (the Convention itself and other international rules not contrary to its principles), but by national legislation as well. The right of states to adopt laws and regulations has been provided for in relation to all sources of pollution, but the relation of national to international law is determined in different ways: (i) In the case of land-based pollution (Article 207 /1/) and pollution from or through the atmosphere (Article 212 /1/), national laws and regulations shall be adopted, taking into account internationally agreed rules, standards and recommended practices and procedures, which means only that national legislation should not differ substantially from international law. (ii) In relation to pollution from sea-bed activities, both within the limits of national jurisdiction and in the Area, national legislation must not be less effective than international rules (Articles 208 /3/ & 209 /2/). The same formula has been employed in relation to dumping, where national laws and regulations shall be no less effective than the global rules and standards (Article 210 /6/). (iii) As regards pollution from vessels, both the flag state and the coastal state are entrusted with the adoption of national legislation. Regarding vessels flying their flag, states shall adopt laws and regulations which shall at least have the same effect as generally accepted international rules and standards (Article 211 /2/). As concerns the right of the coastal state to enact laws for the protection of the waters of ports or internal waters, international law does not impose any restrictions. In relation to its territorial sea, the coastal state is limited by its obligation not to hamper the innocent passage of foreign vessels (Article 211 /4/). The general rule concerning the exclusive economic zone permits the coastal state to adopt rules and regulations conforming to and giving effect to generally accepted

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international rules and standards (Article 211 /5/). However, in two special cases the coastal state is authorized to enact laws which are not necessarily based on existing international law: these are the cases of specially vulnerable areas (Article 211 /6/) and of ice-covered areas within the limit of its exclusive economic zone (Article 234). (c) Problems of Interpretation. While dealing with the provisions on national and international legislation, we have to point out that the terms used in this respect leave much to be desired. Perhaps least difficulty will be experienced in the implementation of the Convention in regard to the terms laws and regulations used for the determination of national legislation, although these terms are based only on an Anglo-Saxon, common law usage and they do not satisfy the requirements of many other systems of internal law as they do not cover all the different sources of internal law. Much worse is the terminology used in regard to international law. As we have mentioned above, the terms rules, standards, recommended practices and procedures have been used in this regard. For illustrating the confusion that can be caused by the use of all these terms in relation to rule-making in the field of environment protection, it suffices to quote Gr. J. Timagenis, a very active participant in the UNCLOS negotiations on pollution provisions:
... the term recommended practice and procedures applies to the international level and denotes recommendatory (i.e. non binding) rules. The difference between rules and standards is not absolutely clear. The term regulations seems to mean secondary national norms in contrast to laws denoting principal national norms.3

By far the worst situation is created in relation to the question: when do international norms become obligatory for states? The terms international rules, standards and recommended practices and procedures are in some instances preceded by the words internationally agreed (Article 207 /1/; Article 2/2) or generally accepted (Articles 211 /2/ & /5/) and in some others the text refers to applicable international rules (Section 6). Different interpretations could be given to these terms, but none of them can clarify the problem of determining the moment in which an international rule is created and the way in which it becomes enforceable with regard to a particular state. The discussions within the Third Committee clearly demonstrate that the majority of delegations did not consider that each particular state is obliged only by its own treaty obligations or by duties based on customary international law. But the Conference has not given an answer to the question: how is international law created in the field of environmental protection for states party to the Law of the Sea Convention? Timagenis

Gr.J. Timagenis, International Control of Marine Pollution, Volume I, New York, 1980, footnote 44 at p. 603.

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opts for a solution in which a conventional rule could be considered as being international law, thus applicable to all states, when the rule is ratified not only by the minimum number of states required for its entry into force, but by a large majority of states.4 In his view, it is not necessary that such a rule pass into customary law. Although in accordance with the predominant view in the Conference, such an interpretation still begs the answer to the unsolvable problem of defining the term a great number of states. 3. Responsibility and Liability Besides particular rules on responsibility and liability concerning some special cases (e.g. liability arising from enforcement measures Article 232; responsibility and liability in relation to activities in the Area Article 139), Part XII contains general provisions on responsibility and liability in the field of the protection and preservation of the marine environment (Article 235). States are said to be responsible not only for the fulfilment of their obligations under the Convention, but in relation to their international obligations in general. They shall be liable in accordance with international law. Party states have to ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction. They have also taken the obligation to co-operate in the implementation of existing international law in the field and in its further development. This provision is based on Principle 22 adopted at the 1972 UN Conference on the Human Environment.5 4. Settlement of Disputes The 1958 Geneva Conventions on the Law of the Sea are accompanied by an Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes. The Protocol is open to states party to any one or more of the Conventions, but their adherence to the Protocol is optional and the Protocol is a treaty independent from the Conventions in many aspects. States participating in UNCLOS III have readily accepted having a system of settlement of disputes included in the new Convention itself, primarily because of the necessity for procedures entailing binding decisions upon disputes arising from the future exploitation of the international sea-bed. States party to the new Convention are obliged to settle any dispute between them relating to the interpretation or application of the Convention, but they are free to seek a settlement of such a dispute by peaceful means of their own choice. Any dispute where no settlement has been reached by such agreed means shall be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction in the case (Article

4 5

Timagenis, op. cit., p. 606. See: note 2 supra.

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286). Party states are free to chose (a) the International Tribunal for the Law of the Sea to be established under the provisions of the Convention; (b) the International Court of Justice; (c) an arbitral tribunal to be constituted in accordance with the Convention; (d) special arbitration procedure provided for in the Convention for disputes relating to: (1) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, and (4) navigation, including pollution from vessels and by dumping (Article 287 /1/). For each of these fields a separate list of experts shall be established. In the field of protection and preservation of the marine environment the list of experts shall be drawn up and maintained by UNEP, and in the field of navigation, including pollution from vessels and by dumping, by IMCO, or by the appropriate subsidiary body to which UNEP or IMCO has delegated this function. The provisions of Annex VIII to the Convention provide for the establishment of the above mentioned lists of experts, and the constitution of a special arbitral tribunal, its functioning and making of awards. Parties to a dispute dealt with by the special arbitral tribunal have to comply with the award, which is final and without appeal, unless the parties have agreed in advance to an appelate procedure. While accepting in principle a disputes settlement system containing compulsory procedures entailing binding decisions, states are not prepared to submit their disputes in all fields to such procedures. That is why the Draft Convention contains a considerable list of limitations and optional exceptions. One of the limitations relates to disputes with regard to the exercise by a coastal state of its sovereign rights or jurisdiction. Such disputes shall be subject to procedures entailing binding decisions in three cases only, one of which is defined in the following terms:
When it is alleged that a coastal State has acted in contravention of specified international rules and standards for the protection and preservation of the marine environment which are applicable to the coastal State and which have been established by this Convention or by a competent international organization or diplomatic conference acting in accordance with this Convention (Article 297 /1//c/).

The effect of this exception to the limitation is that in the field of the protection of the marine environment, for all disputes with regard to the rights and obligations of states beyond the territorial seas, the Convention system of dispute settlement fully applies.

C.

Different Sources of Pollution

As it has already been mentioned, two Sections of the Draft Convention deal separately with the different sources of pollution. More precisely, two criteria in determining the categories of pollution overlap: the criterion for determining the activity causing pollution

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(sea-bed activities, dumping, navigation) and the one based on the way by which pollution is transferred (land-based pollution, atmospherical pollution).6 The first of these two Sections deals with national and international law-making and the second with enforcement. We shall give a concise account of these two Sections, bearing in mind that the general problems concerning international rules and national legislation have already been discussed (see p. 232). It is noteworthy that a definition of the term pollution of the marine environment, based on some previous international instruments, has been included in the Draft Convention. For the purposes of the Convention it has been defined as:
the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities (Article 1 /4/).

1. Land-Based Pollution UNCLOS deals with this most frequent source of pollution because its effects are felt especially in the marine environment; the Draft Convention provisions regulate land-based pollution only in as far as it is related to the marine environment. As the sources of pollution are land-based, i.e. they are within territorial sovereignty of states, they fall within the realm of national laws and regulations. However, under the Draft Convention states (coastal as well as land-locked) are obliged to adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures (Article 207 /1/). States are also bound to take other measures in order to prevent, reduce and control pollution from land-based sources and to endeavour to harmonize their national policies at the appropriate regional level. In contradistinction to some other sources, in relation to land-based sources states are obliged only to endeavour to establish global and regional rules, standards and recommended practices and procedures, which they shall take into account while adopting national legislation. In establishing international norms they have to take into account characteristic regional features, the economic capacity of developing states and their need for economic development (double standard Article 207 /4/). All national and international legal norms and measures have to include those designated to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances, especially persistent substances, into the marine environment (Article 207 /5/).

A.Ch. Kiss, La pollution du milieu marin, in: 38 Zeitschrift fur auslndisches ffentliches Recht und Vlkerrecht 908 /1978/.

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The enforcement of both national and international rules remains with the states. Under Article 213, states shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards.... 2. Pollution from Sea-Bed Activities The following provisions (Article 208) on pollution from sea-bed activities deal with activities undertaken on the sea-bed under the jurisdiction of coastal states, in their internal waters, territorial sea, exclusive economic zone or on the continental shelf. Coastal states have to adopt laws and regulations (no less effective than international rules) and to take other measures necessary to prevent, reduce and control pollution arising from or in connection with sea-bed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction. States have also to endeavour to harmonize their national policies at the appropriate regional level and to establish global and regional international rules. States are entrusted with the enforcement of their own laws and regulations. Furthermore, in accordance with article 214, states shall adopt laws and regulations and take measures necessary to implement applicable international rules and standards. 3. Pollution from Activities in the Area Article 145, contained in Part XI, provides that with respect to such activities, necessary measures shall be taken in order to ensure effective protection of the marine environment from the harmful effects which may arise from such activities. To that end, the Authority is entrusted with the adoption of rules, regulations and procedures, the purposes of which are, inter alia: the prevention of pollution and contamination, and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment; 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. Activities in the Area and shipboard processes which are especially dangerous for the marine environment are also pointed out in the Draft: drilling, dredging, coring, excavation, as well as the disposal, dumping and discharge into the marine environment of sediment, wastes or other affluents, and the construction and operation or maintenance of installations, pipelines and other devices related to such activities (Article 145 /a/; Article 17 /2/ /f/ of Annex III). The Legal and Technical Commission, an organ of the Council, whose members shall have appropriate qualifications relevant inter alia to the protection of the marine environment (Article 165 /1/), formulates the rules, regulations and procedures relating to the protection of the marine environment (Article 165 /2/ /f/). It submits them to the Council, which adopts them provisionally, pending approval by the Assembly, by consensus (Article 162 /2//n//ii/; Article 161 /7//d/). The Assembly considers and approves the rules,

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regulations and procedures by a two-thirds majority (Article 160 /2//f//ii/; Article 159 /6/; Article 17 /1//b//xii/ of Annex III). Besides by international rules, pollution from activities in the Area has to be prevented, reduced and controlled on the basis of national legislation. The requirements of national laws and regulations shall be no less effective than international norms. National legislation shall deal with the protection of the oceans from activities in the Area undertaken by vessels, installations, structures and other devices flying their flag or of their registry or operating under their authority (Article 209 /2/). Although it has not been expressly provided for, it is clear that states shall enforce their own laws and regulations, while the organs of the Authority shall enforce the international rules (the Council, the Legal and Technical Commission Article 165 /2//h/-/m/). The organs of the Authority are entrusted with some additional functions which are not part of the law-making process. Thus, the Legal and Technical Commission prepares assessments of the environmental implications of activities in the Area, makes recommendations to the Council on the protection of the marine environment, etc. (Article 165 /2/). The Council itself issues emergency orders to prevent serious harm to the marine environment arising out of activities in the Area and disapproves areas for exploitation in cases where substantial evidence indicates the risk of serious harm to the marine environment (Article 162 /2//v/&/w/). In both cases the decision in the Council shall be taken by three-quarters majority of the members present and voting, provided that such a majority includes a majority of the members of the Council. However, in the case of emergency orders approved by a three-quarters majority, they may be binding for no more than 30 days unless confirmed by a consensus (Article 161 /7//c/). J. Schneider rightly stresses the shortcomings of these rules which enable a small number of members, or even a single member of the Council to prevent a decision concerning the protection of the environment.7 4. Dumping Here again it is up to states to adopt laws and regulations and to take other measures (not less effective than international norms) in order to prevent, reduce and control pollution (Article 210 /1//6/). In establishing national legislation and taking measures against pollution, states must ensure that dumping is not carried out without the permission of their competent authorities (Article 210 /3/). Dumping within the territorial sea and exclusive economic zone or onto the continental shelf must not be carried out without the express prior approval of the coastal state. It has the right to permit, regulate and control such dumping after due consideration of the matter with other states which

J. Schneider, Codification and Progressive Development of International Environmental Law at the Third United Nations Conference on the Law of the Sea: The Environmental Aspects of the Treaty Review, in 20 Colombia Journal of Transnational Law 264 and n. 93 (1981).

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by reason of their geographical situation may be adversely affected thereby (Article 210 /5/). Applicable international rules and standards as well as national laws and regulations adopted in accordance with them shall be enforced: (a) by the coastal state with regard to dumping within the areas under its jurisdiction (territorial sea, exclusive economic zone, continental shelf); (b) by the flag state with regard to vessels and aircraft flying its flag or of its registry; (c) by any state with regard to acts of loading of wastes or other matter occurring within its territory or at its off-shore terminals. Nevertheless, no state is obliged to institute proceedings when they have already been instituted by another state in accordance with the above provisions on enforcement (Article 216). 5. Pollution from Vessels The existence of a considerable body of treaty law enabled the UNCLOS delegates to adopt more detailed rules in relation to vessel-source pollution than in regard to other sources. The Draft provisions are partly a codification of existing rules, and in many instances the Draft Convention represents the progressive development of international law in the field. The UNCLOS solutions are compromises carefully negotiated between, on the one hand, the developing countries and coastal states seeking primarily to protect their coastlines and, on the other, the maritime powers, which wanted to keep the freedom of navigation as unrestricted as possible. The Draft envisages international rules and standards as well as legislation by states. As we have already dealt with national legislation and its relation to international law (see p. 233), we shall give now an outline of the delicate problem of enforcement, which under the Draft is responsibility of the flag state, the port state and the coastal state, depending in particular on the location of the violation.8 The flag state is bound to ensure compliance by its vessels with applicable international rules and standards and with its national legislation, and to provide for their effective enforcement regardless of where the violation occurred. The flag state must, in particular, take appropriate measures to implement the requirements of international rules and standards for navigation, including those concerned with the design, construction, equipment and manning of vessels. Flag states have to impose adequately severe penalties aimed at discouraging violation wherever they occur (Article 217). Enforcement by the port state includes investigations and, where the evidence so warrants, the institution of proceedings in respect of any discharge from a vessel in violation of the applicable international rules and standards occurring outside its internal waters, territorial sea or exclusive economic zone, when the vessel is voluntarily in a port or at an off-shore terminal of that state. The port state shall institute proceedings also in respect of a discharge violation in the internal waters, territorial sea or exclusive

Kiss, op. cit., pp. 922-924.

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economic zone of another state if it is so requested by that state, the flag state, or a state damaged or threatened by the discharge violation; the port state is also entitled to commence proceedings when such a discharge violation threatens its internal waters, territorial sea or exclusive economic zone. The port states shall, as far as practicable, comply with requests from any coastal state to investigate discharge violations of international rules and standards within its internal waters, territorial sea or exclusive economic zone, or from the flag state concerning such violations wherever they may have occurred (Article 218). The port state may prevent a vessel from sailing if she threatens damage to the marine environment (Article 219). The enforcement powers of the coastal state vary according to the position of the ship which committed the violation and the place where the violation occurred. The coastal state may institute proceedings in respect of any violation of its national laws and regulations established in accordance with the Convention or applicable international rules and standards concerning pollution from vessels, when the violation occurred within its territorial sea or its exclusive economic zone and when the vessel is voluntarily in a port or at an off-shore terminal of that state. It may also undertake physical inspection and, where the evidence so warrants, institute proceedings, including detention of the vessel, where there are clear grounds for believing that a vessel navigating through its territorial sea has, during that passage, violated the above mentioned rules and standards. When a violation is committed in the exclusive economic zone of the coastal state and the vessel is navigating within its exclusive economic zone or its territorial sea, then the coastal state is entitled to require the vessel to give information regarding its identity, its port of registry, and its last and its next port of call, together with other relevant information. When in such a case the violation results in a substantial discharge causing significant pollution, the coastal state may, under some conditions, undertake physical inspection of the vessel. If the committed violation causes major damage to the coastline or related interests of the coastal state, or to any resource of its territorial sea or exclusive economic zone, the coastal state may institute proceedings, including detention of the vessel, in accordance with its laws (Article 220). The Convention sets out a number of safeguards (Section 7) to prevent unlawful action against vessels accused of pollution (measures to facilitate proceedings, exercise of powers of enforcement, the investigation of foreign vessels, non-discrimination of foreign vessels, etc.). The inclusion of these safeguards in the Convention was of particular concern to the maritime powers. The provisions of the Convention regarding the protection and preservation of the marine environment unfortunately do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government non-commercial service (Article 236). We share the view of A.Ch. Kiss,

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that the sovereign immunity dealt with by Article 236 should have been restricted to enforcement, and should not have also excluded the application of the substantive provisions on the protection of the marine environment.9 6. Pollution from or through the Atmosphere In existing international law few specific principles on this type of pollution can be discerned in international treaties, e.g. in the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water (Moscow, August 5, 1963) and in the Convention on Long-Range Transboundary Air Pollution (Geneva, November 13, 1979). For the same reasons as for pollution from land-based sources, pollution from or through the atmosphere has been dealt with in the framework of UNCLOS III. Namely, the noxious effects of this type of pollution are also felt in the marine environment. Under this heading, one deals with sources of pollution within the air space under a states sovereignty and with pollution from or through the atmosphere emanating from vessels or aircraft regardless of their location, as far as such pollution affects the marine environment. The provisions on this type of pollution rightly follow the pattern of those relating to land-based pollution, in respect of national legislation and other measures, international rules and enforcement, as atmospheric pollution mainly originates from land-based sources (Article 212 & 222). Nevertheless, there are some differences between the provisions on land-based pollution and those on atmospheric pollution. While it is perhaps justifiable that only in respect to land-based pollution should the characteristic regional features, the economic capacity of developing states and their need for economic development be taken into account, in establishing international rules, standards, recommended practices and procedures, there is no excuse for the omission of the provision, inserted in relation to all other sources of pollution, that international rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary. One can also question the reasons for the omission in relation to atmospheric pollution of the provision regarding the inclusion in national as well as in international rules of rules designed to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances into the marine environment.

Ibidem, pp. 906, 907.

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2.

PROVISIONS ON THE PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT OF THE UNCLOS DRAFT CONVENTION AND THE ROLE OF INTERNATIONAL ORGANIZATIONS UNCLOS (III) and International Organizations

A.

International organizations have been connected in different ways with the Third UNCLOS, and they are expected to play various roles in the implementation of the provisions of the new Law of the Sea Convention. The Conference itself is being held under the auspices of the United Nations, but neither this Organization, nor the Specialized Agencies, which participate in the work of the Conference as observers, pretend to become parties to the Convention. However, one of the observing intergovernmental organizations, the European Economic Community, expressed its wish to participate in the Convention, i.e. to be accepted as a party to the Convention. This demand is based on the fact that competences in certain areas falling within the scope of the Convention have been transferred to the Community from its member states. In such areas, the member states have neither the right to enact national legislation nor to conclude international agreements. Irrespective of a number of legal and technical problems which would be created by the simultaneous participation in the Convention of the Community and its member states, it is likely that not only the European Economic Community, but all international organizations being entrusted with similar competences to the Community, will be allowed to become parties to the Convention.10 Such organizations, although parties to the Convention, shall not have all the rights and obligations of party states; they shall share them with their member states. As far as non-party international organizations are concerned, in accordance with the law of treaties, the Convention can create rights and obligations only if the intention of the parties was to create such rights and/or obligations for a determined organization, and the organization accepts them. Acceptance can be expressed either in a special formal arrangement subsequent to the conclusion of the Convention, or it can be given in an informal way when the rights and obligations mentioned in the Convention fall under the functions of the organization, as determined by its constitutional rules. In any case, considerations based exclusively on the law of treaties are not of great importance, as the organizations dealing with matters falling within the scope of the Convention have already shown a great deal of interest in assuming the functions provided

10

Note by the President, Analytical summary of the discussions in the informal plenary on participation on 31 March and 1 April 1981, FC/25, 13 April 1981, pp. 3-7.

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for international organizations under the provisions of the Draft Convention.11 The states participating in UNCLOS share this interest in the participation of international organizations in the implementation of the Convention. At their request, a directory of intergovernmental organizations concerned with ocean affairs was compiled;12 they submitted a draft declaration or resolution on international institutional arrangements in ocean affairs;13 and the Group of 77 asked for information concerning the availability of the UN Secretariat for the role it might assume in the application of the Convention.14 The interest expressed from both sides in the role of international organizations is understandable: in many instances throughout the Draft Convention the tasks assigned to organizations and their co-operation with states in the implementation of the Convention have been mentioned.15 Although numerous international organizations able to assume the tasks conferred on them in the Draft already exist, only in a few instances is a particular organization mentioned. The text mainly refers to competent international organizations or to the competent international organization. In such a situation, it is natural that the organizations within whose functions fall the tasks assigned to international organizations in the Draft compete in order to be considered competent organizations. According to Kingham and McRae, there are four UN organizations that have substantial responsibilities in respect of matters affecting the oceans (IMCO; FAO COFI; UNESCO IOC; UNEP), and an additional three that have specific, although more subsidiary, responsibilities (WMO, IAEA, WHO).16 In accordance with the concept of this report, we shall deal only with the provisions of the Draft Convention where international organizations have been mentioned in relation to the preservation and protection of the marine environment. These provisions shall be analysed from the perspective of UNEPs possible involvement in their implementation.

11

12 13 14

15

16

See: Letter from the Secretary-General of the IMCO, C.P. Srivastava to the Chairman of the Drafting Committee of UNCLOS J. Alan Beesley, dated 23 May 1980; Communication Received from the UNEP, U.N. Doc. A/CONF.62/112 /10 April 1981/. U.N. Doc. A/CONF.62/L.14 /10 August 1976/. U.N. Doc. A/CONF.62/L.30. Letter, dated 10 March 1980, addressed to the Secretary-General by the Chairman of the Group of 77; Letter, dated 2 April 1980, addressed to the Chairman of the Group of 77 by the Special Representative of the Secretary-General to the Third United Nations Conference on the Law of the Sea. For a detailed classification of different categories of references to international organizations in the Draft Convention, see: S.D. Kingham and D.M. McRae, Competent international organizations and the law of the sea, 3 Marine Policy 109 /1979/. Kingham, McRae, op. cit., p. 108.

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B.

Annex VIII and the Repartition of the Responsibilities of International Organizations

Throughout Part XII, the term competent international organizations has been used in relation to the involvement of international organizations. Nevertheless, relevant guidance concerning the distribution of competence in the field of the protection and preservation of the marine environment is given in Annex VIII to the Draft Convention which deals with Special arbitration procedure. As has been said above (p. 236), UNEP is entrusted with the establishment and maintenance of the list of experts for the constitution of special arbitral tribunals for disputes concerning the interpretation or application of the provisions of the Convention relating to the protection and preservation of the marine environment (Article 2). Although the role given to UNEP in Annex VIII is limited to the sphere of dispute settlement, it is nevertheless a strong indication of the UNCLOS opinion concerning general competence in the field of the preservation and protection of the marine environment.17 However, in this connection it is necessary to note another provision of the same Annex VIII: the list of experts in the field of navigation, including pollution from vessels and by dumping, is to be established by IMCO. As concerns the list of experts, the situation is clear: UNEP is entrusted with the establishment and maintenance of the list in relation to any dispute in the field of the protection of the marine environment, except in cases relating to pollution from vessels and by dumping. The consequences of these provisions of Annex VIII for the general repartition of competence among international organizations in relation to the protection of the marine environment are less clear. In this regard, in our view, one should draw the following conclusions: (a) Annex VIII indicates the opinion of states participating in UNCLOS (III) that general competence in the field of the protection and preservation of the marine environment lies with UNEP. General with regard to the different sources of pollution as well as with regard to the different activities envisaged in the Draft Convention for international organizations (co-operation, monitoring, law-making, etc.). This does not mean that in relation to a certain source of pollution, a particular activity, or a specific region, some other global or regional organization could not play a subsidiary, equal or even priority role simultaneously with the UNEP activity. (b) The competence given to IMCO in Annex VIII, in the field of pollution from vessels and by dumping is an indication of the view that this Specialized Agency should have prior responsibility for these two sources of pollution. A partial confirmation of such an interpretation can also be found in the relevant substantive provisions relative to pollution from vessels. Namely, it is only in relation to this type of pollution that the

17

Ibidem, pp. 108, 109.

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competent international organization, and not competent international organizations, is mentioned (Articles 211, 217 & 218). The reason for the use of singular in these articles was the opinion that IMCO should be entrusted with responsibilities in respect to vesselsource pollution. Nevertheless, this position, in our view, should not prevent other organizations, especially those engaged in regional endeavours, from dealing with pollution from vessels.

C.

UNEPs Involvement in the Implementation of Part XII

The tasks envisaged for competent international organizations in Part XII relate to all three of UNEPs functional tasks: environmental assessment, environmental management, and supporting measures. In many instances the functions of international organizations as envisaged in the Draft Convention contain elements of more than one of UNEPs tasks, and in some cases the reference to organizations is of a general nature. Article 197, providing for the co-operation of states, directly or through international organizations, in establishing international environmental law is also considered to be the norm which institutes overall co-operation of states and international organizations in the field of the protection and preservation of the marine environment. It is noteworthy that when this general aspect of Article 197 is commented upon, the lead role of UNEP is pointed out.18 This is a correct interpretation of the place UNEP should have in relation to the provisions of Sections 2-4 (Global and Regional Co-operation, Technical Assistance, Monitoring and Environmental Assessment): wherever competent international organizations are mentioned, besides the specific present and future responsibilities of UNEP, FAO, IMCO, and other organizations, one should always bear in mind the general co-ordinative role assigned to UNEP. 1. Environmental Assessment (a) Monitoring and Assessment. The duty of states in relation to monitoring has been very cautiously stipulated: States shall, consistent with the rights of other States, endeavour, as far as practicable... observe, measure, evaluate and analyse, by recognized methods, the risks of effects of pollution of the marine environment. They shall accomplish their task directly or through the competent international organizations (Article 204 /1/). Besides this task assigned to international organizations, they shall be provided with states reports on the surveillance of those activities liable to cause pollution of the marine environment. The organizations should make such reports available to all states (Article 205). They shall equally receive states reports on the assessment of the potential

18

Kiss, op. cit., p. 925.

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effect on the marine environment of planned activities under their jurisdiction (Article 206). At the request of the participating delegations, UNCLOS was informed about the Global Environmental Monitoring System GEMS at its Third Session.19 Although global in its scope, GEMS takes into account the frequent necessity for monitoring on a regional basis, which has also been confirmed by some regional instruments.20 There is no doubt that this monitoring system should be used in the implementation of the UNCLOS conception of monitoring, assessment and information exchange. However, one should bear in mind the remark made in this respect by Kingham and McRae. They stressed the necessity of coordinating GEMS with the monitoring activities of other agencies organised through the Integrated Global Ocean Station System (IGOSS) and to provide for easy access by all states to the results of monitoring programmes. Their suggestion is that the role of acting as a clearing house for information about monitoring programmes could be assumed by UNEP, perhaps as an adjunct to GEMS.21 (b) Research and Information Exchange. The competent international organizations are envisaged as the centre for the co-operation of states (besides direct inter-state cooperation) in promoting studies, undertaking programmes of scientific research and encouraging the exchange of information and data acquired about pollution of the marine environment (Article 200). A wide range of international organizations could be considered as competent within the meaning of this Article, as well as in respect to Article 201 which provides for the duty of international organizations to assist inter-state cooperation in establishing appropriate scientific criteria for the formulation and elaboration of international rules. Nevertheless, in principle, the subsumption of preliminary scientific work and the elaboration of international rules in the same field within one international organization seems desirable. 2. Environmental Management (a) Environmental Law (i) Rulemaking The basic provision in relation to the further development of international law consistent with the Convention is contained in Article 197. The duty of states to co-operate in formulating and elaborating international rules, standards and recommended practices

19 20

21

Third UNCLOS, Official Records, Volume IV, Third Session, Third Committee, 19th meeting, p. 88; U.N. Doc. A/CONF.62/C.3/L.23. See: U.N. Doc. A/CONF.62/C.3/L.23, paragraph 13; Article 10 of the Convention for the Protection of the Mediterranean Sea Against Pollution, Article 4 of the Protocol Concerning Co-Operation in Combating Pollution of the Mediterranean Sea by Oil and Other Harmful Substances. Kingham, McRae, op. cit., p. 121.

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and procedures can be realized by their direct co-operation or through competent international organizations. As co-operation on a global basis as well as co-operation on a regional level is mentioned, it is obvious that global, as well as regional international organizations could be the fora through which inter-state co-operation in the development of international law could be realized. Equally, an organization of a global character could be the proper body for the establishment of regional rules. Diplomatic conference is not mentioned in this introductory provision, but in the following clauses concerning international legislation in regard to different sources of pollution, diplomatic conference is used as an alternative way of realizing a states duty to establish international rules, besides the possibility of acting through competent international organizations. In fact diplomatic conference has replaced direct cooperation of States, only mentioned in connection with international legislation in Article 197, although it seems that the possibility for other forms of inter-state co-operation has been left open, as in all the subsequent Articles competent international organizations and diplomatic conference are preceded by the word especially, i.e. states are free to choose other paths for the establishment of international rules besides the use of international organizations and diplomatic conferences. In accordance with our conclusions based on Annex VIII, UNEP should be considered as the appropriate international agency to assume the task mentioned generally in Article 197 and elaborated in Articles 207-212 in respect of particular sources of pollution. However, the redistribution of competence of international organizations in future rulemaking will be determined by the final text and the interpretation given to the relevant provisions of the Convention, and by the present activities of the organizations and their adjustment to the new realities created by the adoption of the Law of the Sea Convention. We shall now proceed to an examination of the specific situation in relation to each particular source of pollution from UNEPs perspective. Land-Based Sources. In his address to the Third Committee of UNCLOS on 9 August 1974, the UNEP representative expressed the view that the convention could recognize UNEP as the appropriate forum for the international community of States in its endeavour to establish, both at the regional and global levels, standards, rules and regulations for the prevention of marine pollution from land-based sources.22 Representatives of the USA and Kenya supported this view.23 The interest shown on the part of UNEP, the acceptance of the offer by delegations and UNEPs record (e.g. the Mediterranean Protocol) leave no doubt that UNEP can be considered as the main organization in the field of international law-making concerning land-based pollution.24

22 23 24

Third UNCLOS, Official Records, Volume II, Second Session, Third Committee, 14th meeting, p. 371. Ibidem. Kingham, McRae, op. cit., p. 116.

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Sea-Bed Activities. It is beyond any doubt that UNEPs efforts in filling the gap in international law in respect of this source of pollution qualify this agency for assuming further responsibilities in relation to establishing international rules. The steps taken in order to prepare a Protocol to the Barcelona Convention concerning Pollution resulting from Exploration and Exploitation of the Continental Shelf, the Sea-bed and its Subsoil (i.e. the IJO/ UNEP joint Project and the 1978 Rome Meeting of Experts on the Legal Aspects of Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and Subsoil in the Mediterranean) as well as the Study on the Legal Aspects Concerning the Environment related to Offshore Mining and Drilling carried out within the Limits of National Jurisdiction already represent a great contribution by UNEP to the formulation of future regional and global rules on pollution resulting from sea-bed activities. UNEP is therefore qualified to be considered the principal competent international organization, especially if its record is compared with the inactivity of other organizations in relation to this source of threats to the marine environment. Kingham and McRae also recognize the leadership of UNEP; in their view the IOC and the International Sea-Bed Authority should play a supporting role in this field.25 Activities in the Area. Rules, regulations and procedures in respect to the protection of the marine environment from dangers resulting from activities in the Area shall be established by the organs of the Authority, in the way described above (p. 238-239). Nevertheless, we are of the opinion that the Authority should in questions of environmental protection co-operate with UNEP, which has been established as a focal agency for environmental action and co-ordination within and even beyond the United Nations system. In this particular question, such co-operation is particularly to be recommended because of UNEPs present activity in relation to the formulation of principles concerning sea-bed activities. The possibility of co-operation of the Authority with other international organizations has been provided for in the Draft Convention. The Secretary-General of the Authority shall make suitable arrangements, with the approval of the Council, for consultation and co-operation with international organizations. Procedures shall be established for obtaining the views of such organizations in appropriate cases (Article 169). The Council itself shall enter into agreements with the United Nations or other international organizations on behalf of the Authority and within its competence, subject to approval by the Assembly (Article 162 /2//f/). Dumping. In relation to dumping, as in all other instances, except for pollution from vessels, competent international organizations have been referred to as a framework for inter-state co-operation in establishing global and regional rules... (Article 210/41). As we have already mentioned, IMCO is entrusted with the establishment of the list of experts in the field of dumping (Annex VIII). One should not draw the conclusion on the basis of this solution and the fact that the contracting parties to the 1972 London

25

Ibidem, p. 112.

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Dumping Convention have entrusted the secretariat functions in respect of the Convention to IMCO, that IMCO is the sole competent international organization in respect to rulemaking concerning dumping. IMCOs lead role could be accepted as far as global international rules are concerned, but the activities of other international organizations, especially in relation to regional rules, cannot be neglected. That is why we are of the opinion that the UNCLOS provisions on dumping can by no means be interpreted as affecting UNEPs activities concerning regional rules on dumping. Pollution from Vessels. The lead responsibility of IMCO in respect to this source of pollution is affirmed in the Draft Convention not only by Annex VIII, but also by the substantive provisions on pollution from vessels, where the term the competent international organization or general diplomatic conference has been used. On the basis of the IMCOs achievements in regard to ship-generated pollution and the opinions expressed by UNCLOS delegates, it is clear that in this field, at least as general rules are concerned, the lead role of IMCO should not be questioned. The situation is somewhat more complicated in relation to the international rules on special areas in the exclusive economic zone. Although here too the competent international organization is mentioned, in relation to consultations with the coastal state, determining whether special conditions in the area really exist, and the elaboration of international rules for special areas, several delegations have expressed the view that IMCO should not be regarded as the sole competent international organization for this matter.26 Kingham and McRae are of the opinion, which we share, that primary or lead responsibility should be vested in IMCO, with adequate interagency coordinating mechanisms to ensure that other agencies, such as UNEP, FAO, IOC, IAEA, and WMO, are consulted on each request for the approval of special rules.27 The elaboration of the Protocol on the Protection of Special Areas in the Mediterranean proves the soundness of this view. There is another provision in the Draft Convention where the competent international organization is mentioned, although, in our view, more organizations could be competent. Namely, in Article 60 /5/ it is provided that the competent international organization can recommend that the safety zone established around an artificial island, installation or structure exceed a distance of 500 metres. As such a recommendation must take into consideration not only the requirements of navigational safety, but also the different activities carried out by such islands, installations and structures, not only IMCO should be competent. The conclusion reached in respect of special areas and safety zones, as well as the necessity for leaving open the possibility for at least a supporting role for other organiza-

26 27

Third UNCLOS, Official Records, Volume VI, Fifth Session, Third Committee, 32nd meeting, p. 108 / Tanzania/, p. 109 /Kenya/, p. 110 /Somalia/; 33rd meeting, p. 114 /Pakistan/, p. 115 /Kenya/. Kingham, McRae, op. cit., p. 117.

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tions in ship-generated pollution in general, are, in our view, valid reasons for seeking the replacement of the term the competent international organization by the words competent international organizations throughout the provisions of Article 212. The ongoing activities of UNEP within its Regional Seas Programme, where norms concerning vessel-source pollution are not excluded, justify such a change in the Draft Convention. Pollution from or through the Atmosphere. UNEPs involvement in respect to atmospheric pollution is warranted by its general mandate, the absence of another agency with primary responsibility in this field and the fact that the sources of atmospheric pollution are mainly land-based. Responsibility and Liability. A states duty to co-operate in formulating and elaborating international norms for the protection and preservation of the marine environment (Article 197) is not limited only to rules preventing, reducing and controlling pollution of the oceans from various sources. States also have to co-operate in the further development of international law relating to responsibility and liability... (Article 235/3/). Here the possibility of co-operating through international organizations is not mentioned. This omission should be rectified, as there is no reason for such a deviation in Article 235 from the general pattern in which all other provisions concerning the development of international law have been drafted. Even under the present drafting, though, nothing can prevent states and international organizations from acting jointly in the furtherance of international law on responsibility and liability in the field of the protection of the marine environment. UNEP has already undertaken some preliminary research in the field,28 and it should expand its efforts on a regional as well as global level in accordance with the Objectives of the UNEP Environmental Law Programme and its Goal 20 for 1982. In any case, in all efforts to establish specific rules in relation to the protection of the marine environment, the work of the International Law Commission on general rules on state responsibility should be taken into account. Other Responsibilities. Besides the above-mentioned tasks that should be assumed by UNEP in the further development of international law in the field of the protection of the marine environment, some other duties of a coordinating and supporting nature should not be neglected. In our view, it should be considered as UNEPs responsibility to try to clarify the ambiguities and fill in the gaps in environmental law. Existing international law in relation to the protection of the seas, the content of the new Convention, future international rules established on the basis of the Convention, and the interrelation of all these international norms, as well as their relation to national laws will very often require interpretation and clarification if disputes are to be avoided. UNEPs general mandate renders this organization responsible for the harmonious development of environmental law in the field of protection of the marine environment as well. It is thus with good reason that

28

UNEP/IG.14/INF.17, Annex H, pp. 16-20.

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Kingham and McRae attribute to UNEP the role of identifying gaps within the field of the protection of the marine environment and stimulating action by the appropriate organization....29 As concerns the Law of the Sea Convention, if UNCLOS itself does not clarify the ambiguities caused by the use of terms such as generally accepted, internationally agreed, applicable and similar terms (see p. 234), it should be the responsibility of UNEP (groups of experts, etc.) to assist states in the interpretation of such terms in relation to particular international rules. UNEPs Register of International Conventions and Protocols in the Field of the Environment and its Supplements give very useful information concerning the status of treaties of environmental concern.30 One could envisage a special document containing data concerning the status of international treaties (global, regional, subregional) in the field of the protection and preservation of the marine environment: law of the sea treaties; specific treaties on the protection of the oceans; treaties concerning the limitation of military activities threatening the marine environment; other treaties applicable to the protection of the oceans. A compilation of texts containing international rules and standards on the prevention, reduction and control of the pollution of the marine environment from different sources of pollution based on the system of the new Law of the Sea Convention (Articles 207-212 & 235) would be a very useful publication. Such a publication should be re-edited from time to time as necessary. (ii) Enforcement Concerning the enforcement of national legislation, the Draft Convention is explicit: states shall enforce their laws and regulations. In several instances it has been made clear that states shall enforce international rules too: (a) with respect to pollution by dumping (Article 216); (b) the flag state with respect to vessel-source pollution (Article 217 /1/&/ 4/); (c) the coastal state with respect to vessel-source pollution in regard to vessels voluntarily in their ports (Article 218 /1/). In respect to pollution from land-based sources (Article 213), pollution from sea-bed activities (Article 214), and pollution from or through the atmosphere (Article 222), the right of states to enforce international rules can be deduced from their competence to adopt laws and regulations and take other measures necessary to implement applicable international rules and standards... (i.e. Article 213).31 In relation to these sources of

29 30 31

Kingham, McRae, op. cit., p. 119; See also: V. Vukasovic, Zatita i unapredenje covekove sredine medunarodnopravno regulisanje, Beograd, 1980, p. 119. UNEP/GC/INFORMATION 5/Supplements 1-4; UNEP/GC.9/5/Add.1. Gr.J. Timagenis, Marine Pollution and the Third United Nations Conference on the Law of the Sea: The Emerging Regime of Marine Pollution, London, 1977, pp. 34 & 38.

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pollution, international organizations shall be entrusted with enforcement only as provided for in the international rules themselves. The role of international organizations in respect to enforcement has been mentioned explicitly in only a few instances. The first is the duty of the flag state to inform the competent international organization of action taken at the request of another state to investigate a violation alleged to have been committed by a vessel flying its flag (Article 217 /7/). The organization in question is IMCO, as the practice of notifying IMCO in such cases has already been established. A further reference to the competent international organization is made in Article 220 /7/ which deals with the establishment of procedures to ensure compliance with requirements for bonding or other arrangements for financial security. We concur with the opinion expressed by Kingham and McRae that this role is also for IMCO.32 Article 223 contains a reference to the competent international organization in relation to proceedings instituted in respect to violations of rules on the protection of the marine environment. States have to take measures to facilitate the admission of evidence submitted by the competent international organization and to facilitate the attendance at such proceedings of official representatives of the organization. Although the singular has been used in this provision in respect to international organizations, Kingham and McRae are of the opinion that Article 223 contains a general reference to the organizations responsible for the various aspects of marine pollution and that is why they conclude:
The organization to which this provision refers will depend upon the nature of the violation. Thus, if the violation involves vessel-source pollution or dumping, the organization will be IMCO, if it involves atmospheric or land-based source pollution, the organization would be UNEP.33

Although the scope of Article 223 is not expressly limited to vessel-source pollution, the facts that the term the competent international organization is used and that the whole Section on safeguards is to be considered as inserted in the Draft in order to make sure that freedom of navigation is maintained along with ensuring environmental protection and preservation warrant doubts of the plausibility of the conclusions reached by Kingham and McRae.34 Finally, in respect to pollution resulting from activities in the Area, enforcement of international rules, regulations and procedures shall lie with the organs of the Authority.

32 33 34

Kingham, McRae, op. cit., p. 118. Ibidem. See: J. Schneider, Codification and Progressive Development of International Environmental Law at the Third United Nations Conference on the Law of the Sea, pp. 15, 16; B. Bohte and B. Vukas, International Law and the Pollution of the Sea, in: 3 Hague Zagreb Essays, The Hague, 1980, p. 156.

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(iii) Settlement of Disputes Annex VIII, dealing with special arbitration procedure and UNEPs responsibility for establishing and maintaining the list of experts in the field of protection and preservation of the marine environment has already been discussed (see p. 236). This list shall be composed of two experts nominated by every party state, whose competence in the legal, scientific or technical aspects of the protection of the marine environment is established and generally recognized and who enjoy the highest reputation for fairness and integrity. Only the party which made the nomination has the right to withdraw the name of an expert from the list, provided that such an expert shall continue to serve until the completion of any case in which that expert has begun to serve (Article 2). If the parties to a dispute do not agree otherwise, the special arbitral tribunal shall consist of five members. They shall preferably, but not necessarily, be chosen from the appropriate list (Article 3). The role of experts nominated to the list under the provisions of Annex VIII is not only to sit as members of the special arbitral tribunal. In disputes involving scientific or technical matters, any court or tribunal exercising jurisdiction under the provisions of the Convention (see p. 236) may select not less than two scientific or technical experts from the appropriate list prepared in accordance with Annex VIII, to sit with such court or tribunal but without the right to vote. The court or tribunal shall engage such experts at the request of a party to the dispute or on its own initiative, and in consultation with the parties (Article 289). (b) Contingency Planning In cases of imminent or actual damage, states have to notify other states they deem likely to be affected by such damage, as well as the competent international organizations (Article 198). Here again the question arises of which is the competent international organization. There is no definite answer at present; neither organization has exclusive competence in this regard. Kingham and McRae suggest two alternative approaches. The first would be to notify only the organization within whose field of competence the form of pollution that is threatening the marine environment occurs. The second would be to designate one organization to be notified in every case; this organization in turn could notify the others concerned with that type of pollution.35 In view of the promising developments on the regional level (Mediterranean, Kuwait Action Plan Region, West and Central African Region), where regional arrangements exist, the best solution would be to notify the regional centre and the international organizations involved in the regional programme, and through them other competent organizations. Nevertheless, as regional solutions cannot be expected to materialize all

35

Kingham, McRae, op. cit., p. 119.

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over the world, a central agency for such notification should be determined or created. UNEP might envisage the extension of GEMS activities to this field also. When imminent or actual danger is notified, states in the area affected and the competent international organization have to co-operate in eliminating the effects of pollution and preventing or minimizing damage. States are expected to develop and promote jointly contingency plans (Article 199). The list of international organizations obliged to act in the case of imminent danger cannot be exhaustive. Although international organizations are not expressly mentioned in relation to the development of contingency planning, the states joint efforts should be through international organizations. (c) Enclosed or Semi-Enclosed Seas Different theories and claims had been advanced by states and scholars in relation to the regime of closed, internal, semi-enclosed, etc. seas.36 UNLOS (III) recognized the necessity for having some specific provisions on enclosed or semi-enclosed seas and has elaborated a modest set of rules for such seas. Besides a vague definition of an enclosed or semi-enclosed sea, based on their small surface area and the poor connection of such seas with other seas (Article 122), Part IX contains only one additional Article on co-operation between states bordering on such seas (Article 123). These states should co-operate with each other in the performance of their rights and duties under the Convention. To this end, they shall endeavour to co-ordinate their activities with respect to the living resources of the sea, the protection and preservation of the marine environment and scientific research. Co-operation can be realized directly or through an appropriate regional organization. The result of such preliminary co-operation may be an invitation to other interested states or international organizations to co-operate with states bordering an enclosed or semi-enclosed sea or with the appropriate regional organization (Article 123 /d/). The most useful global international organizations for such regional co-operation would be the organizations sponsoring regional projects, such as UNEPs Regional Seas Programme. Co-operation with international organizations is not limited to a certain type of activity in relation to the protection of the enclosed or semi-enclosed seas; therefore, co-operation may include: research, monitoring, technical assistance, rulemaking, information exchange, etc. Because of the general scope of the provisions concerning co-operation with regard to the protection of the marine environment, and even more so because of the link between co-operation in this field and co-operation with respect to the management of living resources and scientific research policies, we have considered the provisions on enclosed or semi-enclosed seas under the heading Environmental Management.

36

See: B. Vukas, Enclosed and Semi-Enclosed Seas, Iranian review of international relations, 1978, nos. 11-12, pp. 171-197.

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3. Supporting Measures: Technical Assistance The Convention provisions on technical assistance involve international organizations in two ways. They are considered to be the proper forum for the realization of the states obligation to provide scientific and technical assistance and, on the other hand, they have duties of their own in respect of developing states (Article 203). We have already mentioned the duties of states in the field of the scientific and technical assistance (see p. 231), the purpose of which is mainly to benefit developing states. Some specific means of rendering such assistance are enumerated in Article 202 /a/: training of personnel, facilitating the participation of developing states in relevant international programmes, supply of equipment and facilities, etc. The direct obligation of international organizations consists in granting developing states preference in the allocation of appropriate funds and technical assistance and in the utilization of the special services of international organizations (Article 203). The current activities of several organizations correspond to the UNCLOS clauses concerning the role of international organizations in the field of technical assistance (UNEP, IOC, FAO, IMCO, WMO, UNDP). Some specific activities in the field are pointed out by Kingham and McRae as being of special interest for UNEP: scientific and technical programming for the preservation of the marine environment; assistance in minimizing the effects of incidents causing pollution; assistance in the preparation of environmental assessment.37 Preferential treatment for developing states, in accordance with Article 203, should be taken into account in relation to the Environment Fund.

3.

UNEP AND THE FOLLOW-UP OF THE UNCLOS DRAFT CONVENTION

The above analysis of the UNCLOS provisions on the protection and preservation of the marine environment and of the role of international organizations in their implementation also includes the pollution of the marine environment from land-based sources. The special provisions on this source of pollution of the oceans have also been commented upon (p. 237). In this, the third part of the report we shall add only a few remarks warranted by the specific features of this type of pollution. Land-based pollution, considered as the most serious threat to the oceans, does not originate from an area where the dominance of the common interests of states and of international law over particular interests and national legislation has been recognized. The sources of this type of pollution are situated within the territories of states or in some other areas within their jurisdiction.38 On the other hand, as the harmful effects of land-

37 38

Kingham, McRae, op. cit., p. 120. Cf. Article 4 of the Protocol for the Protection of the Mediterranean Sea Against pollution from Land-Based Sources, 19 International Legal Materials, 870.

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based pollution are mainly felt in the marine environment, the obligations of states in relation to this source of pollution are part of their general obligation to protect and preserve the marine environment. This obligation relates to all the marine areas under the sovereignty or jurisdiction of states as well as to the international sea areas. The particularities of land-based pollution have influenced all the international instruments elaborated up to now, including the UNCLOS Draft Convention. The UNCLOS Articles dedicated to land-based pollution, although maintaining the general structure of other Articles dealing with rule-making and enforcement (see p. 237), underline the relevance of a states situation and its own decisions: national laws and regulations shall be adopted taking into account internationally agreed rules... which states shall endeavour to establish..., taking into account the economic capacity of developing States, and their need for economic development (Article 207). Many of the basic provisions of special treaties on land-based pollution do not contain precise legal obligations upon states in relation to the prevention, reduction and control of pollution from land-based sources, but rather plans for further co-operation in establishing concrete obligations. I.e. states party to the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources have not accepted common standards concerning the most dangerous substances, but only the obligation to elaborate and implement, jointly or individually, as appropriate, the programmes and measures which shall include, in particular common emission standards and standards for use (Article 5). They have not adopted criteria, but promised to formulate and adopt progressively guidelines, standards or criteria dealing with pipelines for coastal outfalls, special requirements for effluents requiring separate treatment, etc. (Article 7). In such a situation, further activities in establishing international rules, standards and recommended practices and procedures in this field require more flexibility and tenacity than activities with regard to other sources of pollution. Because of the varying regional characteristics and different attitudes of states, regional and subregional solutions should be more easily attainable than global rules, standards and practices. Moreover, besides the establishment of international norms, the harmonization and unification of the national legislation of neighbouring states should also be envisaged as a useful method in improving the legal regulation of land-based pollution. The co-operation of Italy and Yugoslavia, on the basis of their 1974 Agreement for the Protection of the Waters of the Adriatic Sea and Coastal Zones from Pollution,39 is expected to lead to the harmonization of the national policies and legislation of the two neighbouring states. UNEP should assist states in formulating and elaborating international law, but should also help them in the further development of their national law. To this end, taking into account states reluctance to accept stringent international rules and often even to enforce

39

New Directions in the Law of the Sea, Documents, Volume VI, Compiled and Edited by R. Churchill, M. Nordquist and S. Houston Lay, 1977, p. 456.

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existing national legislation, UNEP should concentrate its efforts upon providing states with evidence concerning the noxious effects of pollution from land-based sources. That is why assessment, monitoring, scientific research, and exchange of information should be fields for UNEPs immediate action, even beyond the Regional Seas Programme activities. Furthermore, UNEP, together with some other agencies (UNDP, FAO, WHO, etc.), should undertake studies elucidating the link and correlation between the protection of the marine environment and economic development, especially in relation to developing states. All these activities should assist states in harmonizing their policies in relation to the abatement of land-based pollution, and in enhancing their co-operation, directly, or through international organizations. As concerns the development of international law in relation to land-based pollution, one should not envisage only rules, standards, practices and procedures to prevent, reduce or control pollution, but also the elaboration of principles of responsibility and liability which should take into account the particularities of land-based pollution (i.e. the difficulties in tracing the link between the source of pollution and the damage). Contrary to rules and standards established for the prevention of pollution, the international rules on responsibility and liability should preferably be global.

4.

FINAL REMARKS

The tasks assigned to international organizations in the UNCLOS Draft Convention are, as we have seen in the field of the protection of the marine environment, very rarely allocated to a particular organization. The present activities of such organizations and the discussions in the Conference can in some cases help in identifying the appropriate organization. Although we can accept the argument that precise assignment of responsibility in a particular sphere of co-operation in every case would also not be an ideal solution, the present unclear situation in relation to the future role of international organizations in the implementation of the Law of the Sea Convention is not satisfactory at all. Different solutions for the clarification of this question can be envisaged; attempts in this direction could be made in the future work of the Conference, in the Preparatory Commission to be established in order to prepare the functioning of the Authority, in the General Assembly of the United Nations, in a special meeting of states parties to the Convention, etc.40 In our view, the first path should be chosen: UNEP and other interested international organizations should raise this problem at the Resumed Tenth Session of the Conference, in August 1981. The agenda of that Session will probably not be overburdened and the

40

Kingham, McRae, op. cit., p. 127.

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main bodies of the Conference could allocate sufficient time to a discussion of this matter. The interest of international organizations in their own role in the implementation of the Convention would, on the other hand, be an incentive to the Conference, faced at present with the most dangerous crisis since its convening. We do not think that significant changes could be made in the Draft Convention itself. One could suggest the elaboration of an annex to the Convention clarifying the role of international organizations, the formulation of a special resolution to be accepted by the Conference to this purpose, or the inclusion of another text on this matter in the Final Act of the Conference. Anyhow, even if this effort does not result in the elaboration of a text, the discussion itself would assist organizations and states in elucidating the role the Conference wanted to assign to particular organizations. It is not impossible that the discussion would reveal the necessity for creating some joint, inter-agency bodies or the establishment of some new forms of co-operation among international organizations. The variety of the existing organizations and their ongoing activities exclude the need for the creation of new organizations, at least at the global level.

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IX ENCLOSED OR SEMI-ENCLOSED SEAS

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Chapter 14

ENCLOSED AND SEMI-ENCLOSED SEAS*

As a result of the development and expansion of the international law of the sea, the specific features of individual sea areas, the sea-bed and subsoil thereof, and even the coasts are increasingly being taken into account in formulating new rules. Several general legal regimes of the sea (internal waters, continental shelf) are based on these specific features, and special rules have been worked out for some specific situations (straits, channels). Needless to say, these rules, too, represent a compromise solution with respect to the varied interests of States in the spheres of navigation, economics, security, etc. At the Third United Nations Conference on the Law of the Sea efforts have been continued to expand and adapt the law of the sea to recent developments concerning the interests of individual groups of States and the international community as a whole. A new rgime is being created for the sea-bed and the ocean floor and sobsoil thereof beyond the limits of national jurisdiction; a special regime for archipelagic waters is being increasingly recognized, the rules on straits perfected, etc.

1.

A SURVEY OF CLAIMS MADE EARLIER

Even in the course of preparations for the Conference, the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction endorsed the idea that it was necessary to draw up special rules for enclosed and semienclosed seas. This question was incorporated into the list of items submitted for consideration to the Conference by its Second Committee.1 It had not been debated upon at the earlier conferences for the codification of the law of the sea, but requests to accord

*
1

First published in Iranean Review of International Relations, The New Law of the Sea, After New York, before Geneva, Special Issue, Nos 11-12, Spring 1978.
UN Doc.: A/AC.138/52 and Add.1; A/AC.138/56; A/AC.138/58; A/AC.138/66; A/CONF.62/29.

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some inland seas a special status were often made.2 However, such requests were based on various reasons and on different legal constructions. a) According to the general rules on bays (Art. 7 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone) some seas qualify for being proclaimed internal waters. This is also applicable to any large sea whose coasts, including those bordering its entrance, belong to one State alone, and the width of the entrance does not exceed twenty-four miles. Such seas are referred to as internal, but also as enclosed seas.3 The best known example of such seas today is the Sea of Azov, while earlier it was the Zuider Zee.4 b) A large number of States claim as their internal waters also those bays which do not meet the general requirements set by international law for a bay to be treated as the internal waters of the State bordering all its coasts. Such claims are justified by historic titles, by which is understood a combination of the most varied grounds: discovery of the bay by the nationals of a country, continuous and exclusive utilization of its waters and coasts by the nationals of the coastal State, the bays importance for the security of the coastal State, recognition by other States, etc., etc.5 Examples of such historic bays are Egypts Arabs Gulf, Great Britains Bristol Bay and Moray Firth, Canadas Hudson Bay, the Soviet Unions Peter the Great Bay and the Riga Gulf, etc. However, in addition to the right to historic bays, various States invoke such historic titles to lay claims to some large seas partly surrounded by their coasts. Thus, for example, the Soviet Union considers some bay-type seas as its internal waters, as for example the Kara Sea, the Laptev Sea, the East Siberian Sea, the Chukchi Sea, and the White Sea from the line connecting the Cape Svyatoi Nos to the Cape Kanin Nos.6 The question of historic waters, including historic bays, was not resolved at the Geneva Conference in 1958, and will in all likelihood not be solved at the Third United Nations Conference on the Law of the Sea. For although the list of items for the Con-

5 6

The term enclosed sea is used by some authors also for those seas which do not have an outlet to other seas (the Aral, Caspian and Dead seas); see: Kurs mezhdunarodnogo prava, 3rd edition, Ed. F.I. Kozhevnikov, Moscow, 1972, p. 133. C.I. Colombos refers to such seas as inland seas; C.I. Colombos, The International Law of the Sea, 4th revised edition, p. 164. We agree, however, with those authors who from the viewpoint of international law treat such seas as lakes; see: Mezhdunarodnoe pravo, Ed. G.I. Tunkin, Moscow, 1974, p. 291; J. Andrassy, Medunarodno pravo, 6th edition, Zagreb, 1976, p. 149. G. Gidel, Le droit international public de la mer, Le temps de paix, Vol. III La mer territoriale et la zone contingue, Chateuroux Paris 1934, p. 762; Andrassy, op. cit. pp. 163, 177; R. Lapidoth, Les dtroits en droit international, Paris, 1972, p. 24. Andrassy, op. cit., p. 177; Kurs mezhdunarodnogo prava, p. 117. However, some Soviet authors consider the Sea of Azov to be internal waters of the Soviet Union as part of its historic waters; P.D. Barabolya et al., Voenno-morskoi mezhdunarodno-pravovoi spravochnik, Moscow, 1966, p. 216. Gidel, op. cit., p. 628; Lapidoth, op. cit., p. 66; Barabolya et al., op. cit., p. 215. Kurs mezhdunarodnogo prava, p. 118; Barabolya et al., op. cit., p. 216.

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ference includes the regime of historic waters, the informal drafts prepared to date by the Chairmen of the Main Committees of the Conference do not refer to this question.7 c) Closest to the conception of enclosed and semi-enclosed seas that is being discussed at the present Conference on the Law of the Sea is the demand to recognize a special status to some minor seas whose coasts belong to several States and are connected to other seas by narrow outlets. Such demands have been most frequently voiced by the Soviet Union and have been presented with the greatest precision by Soviet authors. In Mezhdunarodnoe pravo, edited by Professor Tunkin, we find the following definition:
Enclosed seas are considered to be seas enclosed by territory belonging to several States and connected to an open sea (world ocean) by a waterway which belongs to these States alone.8

States bordering such a sea should by mutual agreement regulate the legal regime for the enclosed sea involved. In so doing, they should respect freedom of navigation for merchant ships of all States, but they might restrict or abolish freedom of navigation for warships of States which do not border such sea, and freedom of overflight for their aircraft. The natural resources of such seas, outside the territorial waters, could be used on equal and equitable terms by all States bordering them. None of them should be allowed to endanger the economic and security interests of other coastal States. Soviet authors cite the Black Sea and the Baltic Sea as examples of enclosed seas subject to special regimes on the basis of agreements concluded by the bordering States. These agreements primarily relate to the regulation of navigation through the straits connecting these seas to the high seas. Among the seas having the features of an enclosed sea but with respect to which no agreement have been concluded between the bordering States are the Sea of Japan and the Sea of Okhotsk. Their rgime is governed by the national laws and general principles of international law; other coastal States have not yet accepted the Soviet Unions proposal that these seas be proclaimed closed to warships and aircraft.9

8 9

The last Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction (Vol. IV) contains a few proposals in connection with historic waters, because this question had been entered into the list of issues for the Conference (General Assembly, Official Records; Twenty-Eight Session, Supplement No. 21 (A/9021), p. 5. Provisions on this issue were later on only mentioned in the Working paper of the Second Committee: main trends, prepared after the Second Session of the Conference (Caracas 1974); See: Third United Nations Conference on the Law of the Sea (further: UNCLOS); Official Records, Vol. III, p. 109. Mezhdunarodnoe pravo, l.c. Mezdhunarodnoe pravo, l.c.; Kurs mezhdunarodnogo prava, pp. 133-134; Barabolya et al., op. cit., pp. 129-133. For doubts in the existence of an enclosed-sea regime for the Baltic see: M. Barto, Medunarodno javno pravo, Vol. II, Belgrade, 1956, pp. 165-166; Andrassy, op. cit., p. 177.

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The Bering Sea was proclaimed an internal sea both at the time when its coasts belonged to one State alone (Russia) and when its waters were bordered by two States. However, the arbitral award of 1893 concerning seal fishing, rejected the United States claim that the Bering Sea was an internal sea.10 d) Claims by the great sea powers to the effect that they should have exclusive mastery over individual seas and even parts of the oceans, regardless of other coastal States, belong to the past. Genoas claims to the Ligurian Sea, Venices claim to the Adriatic Sea, Norways claim to the northern part of the North Sea, Scotlands and later on Great Britains claim to the neighbouring seas, the claims of Spain and Portugal to parts of the ocean, were recognized by many authors and some other States, but have not played any major role in the development of the contemporary law of the sea.11

2.

THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA

At the Second Session of the Conference (Caracas, June 20-August 29, 1974), the first one devoted to the law of the sea itself, numerous delegations taking part in the general debate broached the problem of enclosed and semi-enclosed seas. The problem was also discussed in the Second Committee and a number of draft articles on that matter were submitted.12 In the discussion of enclosed and semi-enclosed seas, parallel with the debate on the various issues concerning the regime of such seas, doubts were expressed from the outset as to whether it was necessary at all to incorporate into the Convention on the Law of the Sea any general rules for this category of sea. Although such doubts were also voiced by delegates from a number of States at the latest sessions of the Conference, it is indisputable that the idea of incorporating some special rules on enclosed and semienclosed seas into the Convention is now generally accepted by the Conference. At the Session in Caracas this question was still in the focus of attention. A major number of States emphasized the importance of according special treatment to enclosed and semienclosed seas; the Israeli representative enumerated even as many as 18 delegations which

10 11 12

Colombos, op. cit. pp. 55, 88, 136-138; Andrassy, op. cit., pp. 177-178. N. Katicic, More i vlast obalne drave, Zagreb, 1953, pp. 40-131. For views presented in the general debate see: UNCLOS, Official Records, Vol. I, pp. 116, 130, 133, 136, 140, 148, 151, 168. For discussions in the Second Committee at the Session in Caracas see: UNCLOS, Official Records, Vol. II, pp. 273-279. Draft rules were submitted by Algeria (A/CONF.62/C.2/L.20); Turkey (A/ CONF.62/C.2/L.55 and L.56); Iraq (A/CONF.62/C.2/L.71 and Add. 1 and 2); Iran (A/CONF.62/C.2/L.72). Because of the informal character of work of the Second Committee and its working groups, no official public minutes were kept of the meetings held at the Third, Fourth, Fifth and Sixth Sessions, nor are there any official texts of the amendments submitted. As a member of the Yugoslav delegation, the author of the present article took part in the work of the Conference at the Third, Fourth, Fifth and Sixth sessions, so that the data on these four Sessions are based on his own notes and documentations.

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had in the general debate declared themselves in favour of this idea. It is a fact, however, that some representatives, even those of the States bordering such seas, pleaded that the problems of such seas should not be solved by the general rules of the Convention on the Law of the Sea for all such seas, but rather by regional agreements for each such sea in particular (France, Greece, Iran, Sweden). Some of the States which were against incorporating any special rules for enclosed and semi-enclosed seas into the Convention, based their opposition on the lack of clarity of the definition of such seas (Greece, France). Algeria presented in greater detail the position of the States which urged that rules on enclosed and semi-enclosed seas be incorporated into the Convention, but regardless of it, these States were of the opinion that subsequent regional agreements should be concluded by the coastal States to solve specific questions of each individual enclosed or semi-enclosed sea. Yugoslavia is among the States which consider that special rules on enclosed and semi-enclosed seas should be incorporated into the Convention. At the Fourth Session of the Conference the chairman of the Yugoslav delegation, Ambassador Z. Periic, cited the following characteristics of such seas as the essential reasons for incorporating special rules for such seas into the Convention: (a) the complexity of navigation in these seas and in outlets connecting them with the open seas due to their small surface and poor connection with other seas; (b) the growing danger from all types of pollution; because of their small size and poor interchange of their waters with adjacent seas; (c) the necessity of taking special precautionary measures in relation to the management, conservation and exploitation of the living resources of such seas, as they are endangered by their natural characteristics and by pollution. At that Session the Finnish representative too, drew attention to the special geographical, geophysical and other characteristics of enclosed and semi-enclosed seas which were not taken into account by existing law and which brought in question the justifiability of the application of the general rules of the present drafts to such seas. In this connection he stressed in particular the difficulties that might arise from the application of the general rules to the exclusive economic zone in enclosed and semienclosed seas, especially for the freedom of international navigation (the establishment of artificial structures). At the Caracas Session several draft articles on enclosed and semi-enclosed seas were submitted. A condensation of these draft articles resulted in Provisions 221-228 being incorporated into the Main Trends, a working paper drawn up after that Sessions with a view to facilitating further work in the Second Committee.13 At the Geneva (Third) Session of the Conference (March 17-May 9, 1975), these problems were discussed only at two meetings of the informal consultative group of

13

A/CONF.62/C.2/WP.1.

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the Second Committee.14 By a decision of the Conference, the Chairman of the Second Committee (R. Galindo-Pohl-El Salvador) was entrusted with the task of preparing an informal draft for the material of his Committee on the basis of all proposals submitted and their echo in the debates in the Committee. Chapter IX (Article 133-135) of Part II of the Informal Single Negotiating Text (in further text: ISNT) is devoted to enclosed and semi-enclosed seas.15 The provisions of this Chapter relate to the definition of such seas, cooperation of States bordering enclosed or semi-enclosed seas, and the relations of special rules on enclosed or semi-enclosed seas with other provisions of the Convention. At all subsequent Sessions of the Conference issues concerning enclosed and semienclosed seas, and almost all other questions considered by this Committee, were discussed at informal meetings. At the Fourth Session (New York, March 15-May 7, 1976) the Committee discussed the whole of Part II of ISNT, including Chapter IX devoted to enclosed and semi-enclosed seas. On the basis of informal amendments introduced by States and of the discussion in the Committee, the new president, Andrs Aguilar (Venezuela) presented a Revised Single Negotiating Text (in further text: RSNT), a draft of the same informal nature as was ISNT.16 The new drafts of Article 129 (Definition) and Article 130 (Cooperation of States bordering enclosed or semi-enclosed seas) dealt with enclosed and semi-enclosed seas. In other words, the provision on the relations of special rules on enclosed and semi-enclosed seas with other provisions of the Convention (Article 135 ISNT-a) was omitted. At the Fifth Session (New York, August 2-September 1976), the Second Committee chose to discuss only a number of priority questions, but the problem of enclosed and semi-enclosed seas was not among them. However, at the end of the Session the Committee held several meetings to discuss all remaining issues. Several delegations also spoke of enclosed and semi-enclosed seas; some amendments to RSNT were introduced, and a number of proposals submitted at the Fourth Session were repeated. At the end of this Session a new draft was worked out. At the Sixth Session (New York, May 23-July 15, 1977), apart from intensive consultations conducted by the most interested States, the problem of enclosed and semienclosed seas was again discussed only in the debate on those issues for discussion for which no separate groups had been set up. Some fifty delegations took part in the debate on this theme, and several new amendments to RSNT were introduced. However, in the course of the debate not a single amendment either in its entirely or with respect to individual elements entailing essential changes in Chapter IX of the RSNT, received strong support. Therefore in the new draft (Informal Composite Negotiating Text in further

14 15 16

See: A/CONF.62/C.2/L.89/Rev.1, para 8 and 17. A/CONF.62/WP.8/Part II. A/CONF.62/WP.8/Rev.1/Part II.

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text ICNT),17 which was at the Sixth Session jointly prepared by the Chairmen of the Main Committees and the President of the Conference, the part on enclosed or semienclosed seas did not undergo any changes in relation to the earlier draft (RSNT).

3.

CONTENT OF THE INFORMAL NEGOTIATING TEXTS

The basic shortcomings of the draft worked out at the 1975 Geneva Session, which have not yet been eliminated, are the lack of clarity of the definition and the non-existence of provisions on some questions whose separate regulation was urged by many delegations (navigation in those seas, navigation and overflight through outlets connecting such seas to the open seas). Although the title of Chapter IX and the definition itself have retained both terms, i.e., enclosed and semi-enclosed seas, in Article 133 of ISNT they are defined in a single definition:
For the purposes of this part, the term enclosed or semi-enclosed sea means a gulf, basin, or sea surrounded by two or more States and connected to the open seas by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.

This definition, which is repeated in the subsequent drafts of the Chairman of the Second Committee, is not clear, so that there are justified reasons for its varied interpretation and for proposals for its amendment. From this definition it is nevertheless possible to conclude with certainty: (a) that there is a reluctance to make a distinction between enclosed and semi-enclosed seas; (b) that the first requirement for a sea to qualify for the Status of an enclosed or semi-enclosed sea, for which this Convention should give special rules, is to be surrounded by land territories of two or more States; (c) that, to meet the second requirement for a sea to be considered enclosed or semi-enclosed, it would be sufficient for it either to be connected to the open seas by a narrow outlet or to have a relatively small surface, i.e. that it consists entirely or primarily of the territorial seas and exclusive economic zones of coastal States. In view of the use of two terms and of the alternative requirements mentioned under (c), an interpretation according to which a sea connected to the open seas by a narrow outlet would be treated as an enclosed sea, and the status of a semi-enclosed sea would be given to any small surface sea regardless of the number of outlets to the open seas, may also seem to be acceptable. However, such an interpretation must be rejected in

17

A/CONF.62/WP.10.

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the light of the entire structure of Article 133 which shows that its author did not want to define these two terms by two separate notions. Article 134 of ISNT has fairly successfully summed up the various proposals on cooperation of States bordering enclosed or semi-enclosed seas, other interested States and international organizations, in connection with the living resources of, the preservation of the marine environment and conduct of scientific research in, these seas:
States bordering enclosed or semi-enclosed seas shall co-operate with each other in the exercise of their rights and duties under the present Convention. To this end they shall, directly or through an appropriate regional organization: (a) Co-ordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) Co-ordinate the implementation of their rights and duties with respect to the preservation of the marine environment; (c) Co-ordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; (d) Invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article.

Although several amendments to this Article, too, were proposed at the subsequent Sessions, only its introductory part was amended after the Fourth Session. At that Session proposals (Mexico, Tunisia, Turkey) to lessen the commitments of bordering States in connection with co-operation, received considerable support. Accepting the Committees stand in the new draft, A. Aguilar changed the introductory part of this Article (Art. 130 RSNT):
States bordering enclosed or semi-enclosed seas should cooperate with each other in the exercise of their rights and duties under the present Convention. To this end they shall endeavour, directly or through an appropriate regional organization:

Thus amended, the text of this Article pertaining to co-operation was incorporated into the latest draft ICNT, prepared by Chariman Aguilar after the Sixth Session. The last Article of the Geneva draft (ISNT), which was devoted to enclosed and semienclosed seas, dealt with relations of the special rules on such seas and other provisions of the Convention. Article 135 read:
The provisions of this part shall not affect the rights and duties of coastal or other States under other provisions of the present Convention, and shall be applied in a manner consistent with those provisions.

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In the debate on this Article conducted at the Fourth Session its text was variedly interpreted and amendments to it were proposed (Turkey, Finland), but its elimination was not demanded. A. Aguliar opted, however, precisely for such a step: no rule reflecting even in part the content of Article 135 of ISNT was incorporated into RSNT.

4. A.

FUNDAMENTAL PROBLEMS Definition

At the Third United Nations Conference on the Law of the Sea many seas were mentioned as falling within the category of enclosed and semi-enclosed seas. The Iranian representative Kazemi asserted that there were from 40 to 50 such seas.18 The following seas were most frequently cited as belonging to this category: the Baltic Sea, the Mediterranean Sea (and its parts: the Adriatic, Aegean and Black Seas), the Persian Gulf, the Caribbean Sea, the Red Sea, the South China Sea and the Andaman Sea. On the other hand, various States tried to prove that some of these seas did not fall within the category of enclosed or semi-enclosed seas. Thus, the Soviet Union rejected any possibility of the Mediterranean being considered either an enclosed or semi-enclosed sea, because, according to the Soviet representative, this was a large sea and was used by States as a high sea. The Soviet Union does not in general accept any special rgime for semi-enclosed seas, considering them to be large bodies of water with several outlets through which pass international waterways. It agrees, however, to the possibility of formulating special rules for enclosed seas, which the Soviet representative, Admiral Barabolya, defined from a juridical point of view as comparatively small seas which have no outlet to the ocean and do not serve as international shipping routes in the broadest sense.19 Such dilemmas as to whether a particular sea should be considered enclosed or semienclosed, indicate the importance of an adequate definition of such seas. However, until now no major effort has been made at the Conference to work out a generally acceptable definition. One of the basic problems in connection with such a definition is the question of whether it is necessary separately to define enclosed and semi-enclosed seas, or to cover both notions by a single definition. At the beginning of the work of the Conference, Iran proposed a draft definition for either of these terms:

18 19

UNCLOS, Official Records, Vol. II, p. 272. UNCLOS, Official Records, Vol. II, p. 277.

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(a) The term enclosed sea shall refer to a small body of inland waters surrounded by two or more States which is connected to the open seas by a narrow outlet; (b) The term semi-enclosed sea shall refer to a sea basin located along the margins of the main ocean basins and enclosed by the land territories of two or more States.20

The Iranian draft definition is not quite satisfactory; it contains too many juridically and geographically vague notions (inland waters, open seas, narrow outlet, sea basin, main ocean basin). And yet, under this definition many seas could be clearly classified as enclosed (e.g. the Black Sea and the Adriatic Sea) or semi-enclosed (e.g. the North Sea and the Caribbean Sea). It is to be regretted that other delegations which use both terms did not make any effort to explain them. Nor was this done by the Chairman of the Second Committee: their definition (ISNT, RSNT, ICNT), jointly defines both notions by an awkward combination of elements contained in the Iranian definition. The definition contained in the Informal Negotiating Texts was not acceptable to many States, so that at the last three Sessions minor or major amendments thereto were proposed. We shall mention here only those entailing radical changes. According to the Finnish amendment an enclosed or semi-enclosed sea should be understood to mean a sea surrounded by two or more States and connected to the open seas by one or more narrow outlets. The essential aspect of this amendment is contained in the second paragraph of the definition according to which spacious sea basins which separate continents and which themselves include a number of semi-enclosed seas should not fall within this category of sea. Such a limitation was also contained in the Iranian amendment submitted at the Fourth Session, according to which the Mediterranean Sea would not come under this category. The Finnish amendment was mainly supported by Eastern European States. The intention to exclude from the category of semi-enclosed seas spacious sea basins was also contained in the amendments proposed by the Arab Group at the Fifth Session and in the amendment introduced by Iraq at the Sixth Session of the Conference. The essential characteristic of the amendment submitted by the European Communities is that according to it a narrow outlet would be considered narrow enough to qualify a particular sea as enclosed or semi-enclosed only if its waters were situated within the territorial seas of one or more States, i.e. if a strait in the sense of international law were involved. The absurdity of this amendment is seen when it is applied to the Adriatic Sea. Because the Strait of Otranto is 41 miles wide and its waters are not in their entirety situated within the territorial seas of Albania and Italy, the Adriatic would be neither an enclosed nor a semi-enclosed sea!

20

A/CONF.62/C.2/L.72.

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At earlier Sessions, Turkey and Yugoslavia made various observations on the definition contained in ISNT, but these two countries, together with Algeria, Libya and Romania, submitted at the Sixth Session a new draft for Chapter IX as a whole within the framework of which they also proposed some amendments to the definition contained in RSNT. According to this proposal, only the term semi-enclosed sea would remain. Since the Conference has so far failed to explain and delimit the notions of enclosed and semi-enclosed seas, these States did not see any need to retain both terms. Changes were also made in the definition with respect to both alternative requirements which must be met by a sea to be considered as semi-enclosed. Thus not only a sea connected to other seas by a narrow outlet, but all seas having one or more straits or narrow outlets would be considered as being semi-enclosed. As regards the other requirement not a large sea in order to emphasize that the real surface of the sea is important, the following phrase was added at the end of the Article: whether established or not. This addition relates to economic zones: qualifying a particular sea as semi-enclosed may not depend on whether or not the coastal States have proclaimed their exclusive economic zones. Regardless of how much the differentiation between enclosed and semi-enclosed seas is justified from the viewpoints of geography, navigation, etc., it seems to us that in this final stage of the work of the Conference it would not be opportune to begin to seek a separate definition for each of these two kinds of sea. Instead of it, the present definition should be changed so as to make it clearer and suitable to cover with certainty all seas which should be specially treated. For this purpose it would be useful for the definition to say one or more outlets instead of a narrow outlet, because not only a sea connected to another sea by one narrow outlet is geographically an enclosed sea, but also all those seas which are connected to other seas by a wider outlet, or even by several outlets. The properties and problems of the Black Sea, Adriatic Sea and the Sea of Marmara, are very similar, despite differences in the width and number of outlets connecting them to other seas. The formulation according to which every sea which entirely or partly consists of territorial seas and exclusive economic zones of ... coastal States should be considered an enclosed or semi-enclosed sea, would make it possible to classify as such even such large seas as the Mediterranean, Caribbean, Tasman, Bering, Barents, etc. seas. However, because of their poor connections with other seas and oceans, such seas also call for some special rules. On the other hand, small seas do not need any special rgime if they only constitute open bays of a bigger sea (e.g. the Chukchi Sea or the Beaufort Sea). A great weakness of the definition contained in the drafts prepared to date by the Chairmen of the Second Committee lies in the fact that according to it even a sea which is in fact an ocean bay can be considered as being an enclosed or semi-enclosed sea only because two or more States border its coasts, and its surface is not big enough not to

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be treated exclusively or primarily as part of the territorial seas and exclusive economic zones of coastal States (e.g. the Arabian Sea, the Bay of Bengal or the Greenland Sea). To conclude: in order for a sea to be considered enclosed or semi-enclosed, it should be surrounded by the coasts of two or more States, should have a relatively small surface (that it has not a large surface falling under the rgime of the high seas), and should be connected to other seas by one or more outlets. All these three requirements should be simultaneously met. B. Co-operation of Coastal States

In the opinion of numerous participants in the Conference, the specific features of enclosed and semi-enclosed seas call for great and concerted efforts by the bordering States and all third States using such seas to protect them from pollution, exhaustion of their living resources and unsafe navigation. Because of this, the above-quoted text of the Article on co-operation of bordering States in connection with living resources, preservation of the marine environment and scientific research, has not been questioned by anyone. The sphere of co-operation can, of course, be expanded; thus Yugoslavia proposed the introduction of a new sphere of co-operation in designating sea lanes and prescribing traffic separation schemes. The most significant changes proposed relate to co-operation with respect to living resources. At the Fourth Session the United Arab Emirates proposed that the aim of this co-operation should be to avoid effects detrimental to the fishing communities and to avoid over-exploitation. Denmark proposed that States should undertake to negotiate regional agreements concerning the living resources so as to find an equitable solution to problems resulting from the introduction of economic zones affecting traditional fishing activities of the bordering States. Iraq, which proposed at the Fourth Session that co-operation of bordering States relating to living resources should enable them to obtain an equitable share, amended its proposal at the Sixth Session, formulating it with greater precision and making it stiffer. According to this proposal, the bordering States would be bound to conclude regional agreements so as to find equitable solutions to problems of fishing activities of the bordering States, taking into account the special circumstances of the bordering States and the nutritional needs of their populations. The proposed radical change in the texts discussed theretofore received a rather limited support in the Committee. A better support was received by the draft amendment to the introductory part of Article 130 of RSNT contained in the joint draft submitted by Algeria, Libya, Yugoslavia, Romania and Turkey and in the Finish draft, according to which the conclusion of agreements among bordering States should be mentioned as one of the possible ways of realizing co-operation among them.

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C.

Navigation

At the Caracas Session a major number of States bordering enclosed and semi-enclosed seas proposed that the chapter on such seas should regulate the question of access to and from such seas which are connected to other seas by narrow outlets. The reasons for this are obvious. The extension of the territorial sea and contiguous zone and the introduction of the exclusive economic zone would greatly increase possibilities for restricting the freedom of navigation on small-sized seas, with a virtual disappearance from them of parts of the high seas. Such changes could in particular endanger navigation through outlets providing the only link between enclosed and semi-enclosed seas and other seas. This would in most cases result in the entire surface of such outlets being situated within the territorial seas and contiguous zones (in addition to the exclusive economic zones) of the bordering Sates. This would provide considerable possibilities for lawful but also unlawful disturbance of free navigation by the coastal States. In this connection it should be noted that not all such outlets are protected by the special rules on passage through straits used for international navigation, because in some of them (e.g., the Strait of Otranto, the Davis Strait navigation is also possible outside the territorial seas of the coastal States (Article 36, ICNT). Rules on navigation were proposed in the drafts submitted by Algeria and Iraq as early as 1974.21 The Algerian draft provided for free transit for merchant ships and government ships operated for commercial purposes which are proceeding to or from a coastal State bordering a semi-enclosed sea whose access to ocean space lies exclusively through straits connecting two parts of the high seas and traditionally used for international navigation... The Iraq draft speaks of the freedom of navigation for ships of all States in straits connecting two parts of the high seas, whether they are open seas or semi-enclosed seas. In other words, both proposals restrict the application of the rules on navigation to straits which connect open seas to a semi-enclosed sea in which there is also a corridor of the high seas. Iraq proposed that the freedom of navigation should also be maintained in this corridor itself, but also in those areas of semi-enclosed seas which had been previously considered as part of the high seas and which had, as a result of the limit of the territorial sea being extended to 12 miles, become part of this belt. Although as a result of all these proposals, within the framework of the provisions on enclosed and semi-enclosed seas contained in the Caracas working paper Main Trends most space was devoted to the rules of navigation,22 and they were also discussed at the Geneva Session in 1975, not a single provision thereon was entered into ISNT. Because of this, new proposals concerning the regulation of navigation in enclosed and semi-enclosed seas were made at the Fourth Session.

21 22

A/CONF.62/C.2/L.20 and L.21. A/CONF.62/C.2/WP.1, Provision 227 (Formula A-C), Provision 228.

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Finland and Iraq proposed special rules to protect the freedom of navigation inside those enclosed and semi-enclosed seas which can be particularly endangered by the construction of artificial islands and installations in the economic zones of the bordering States. The amendments proposed by the United Arab Emirates, Iraq and Yugoslavia contained special rules to ensure the freedom of navigation (passage) through outlets (straits) connecting enclosed and semi-enclosed seas with other seas. These proposals were supported by many States, but some States which had throughout the entire Conference been in favour of granting broad rights to coastal States in areas under their jurisdiction (e.g. Guinea, Kampuchea, Albania, Somalia), expressed fears for the sovereignty and security of the States bordering enclosed and semi-enclosed seas in case of free navigation by foreign warships. The Chairman of the Committee failed again to enter into the new draft RSNT any rules pertaining to navigation. This is to some extent justified by the variety of proposals and the brevity of the debate on this issue conducted at the Fourth Session, because of which it was not possible to work out a compromise proposal. At the Fifth Session, although the debate on enclosed and semi-enclosed seas was short, all new amendments (Romania, Israel, Yugoslavia) were devoted to the freedom of navigation through passages leading to enclosed and semi-enclosed seas. In the new amendments to Chapter IX submitted at the Sixth Session, Finland and Iraq reitereated their concern for free navigation in enclosed and semi-enclosed seas themselves. The problem was, however, more comprehensively tackled in the joint proposal submitted by five States: Algeria, Libya, Romania, Finland and Yugoslavia. This proposal also emphasized that the existence of islands, artificial islands, structures or installation in such seas should not exercise an influence on unimpeded navigation. In addition the five States proposed safeguards to ensure free access to and from semienclosed seas:
1. In outlets used for international navigation connecting semi-enclosed seas with other seas, freedom of navigation and overflight shall be maintained unimpeded for all ships and aircrafts. 2. Paragraph 1 is without prejudice to the provisions on straits used for international navigation contained in Chapter II of this part.

This proposal mustered considerable support from States taking part in the discussion. There was some lack of understanding for the need for such an amendment, and there were also proposals to the effect that a rule of this kind should be incorporated into the draft in some other place. However, only a small number of delegations opposed its substance. This rule was not incorporated into the latest draft (ICNT), but as a result of the adjustment of views of the States most concerned, this issue should at the next Session receive a still greater support in the Committee and is expected to be incorporated into the next draft Convention.

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D.

Delimitation of Marine Spaces

A number of States proposed that in connection with enclosed and semi-enclosed seas special rules on the delimitation of marine spaces of coastal States should be adopted. In the debate in the Second Committee in Caracas, the Iranian representative asserted that the delimitation of various areas of jurisdiction in such seas should be based on the principles of justice, equity and equidistance, while the representative of Thailand added to it special circumstances, rejecting the equidistance method where it leads to unjust results.23 In its draft Article on the regime of islands, Turkey proposed that maritime spaces of islands in areas of semi-enclosed seas having special geographic characteristics should be jointly determined by the States of that area.24 The Iraqi draft introduced at the Fourth and the Finnish draft submitted at the Sixth Session also mentioned delimitation between adjacent or opposite States. According to both these drafts, such delimitation should also be carried out in enclosed and semienclosed seas in accordance with the general rules of the Convention. The Iraqi proposal added to it the principles of equality and due regard to special circumstances. In contrast to this, the joint proposal made by the five above-mentioned States also mentioned relevant circumstances in addition to the Conventions general rules on delimitation. Proposals demanding a separate regulation of the question of delimitation in connection with enclosed and semi-enclosed seas did not receive any major support in the discussions. This is understandable in view of the difficulties the Committee had had in the debate on general rules on the delimitation of the continental shelf and the exclusive economic zone. E. Relation to Other Provisions of the Convention

In its proposal submitted in Caracas, Iran suggested a rule on the application of the general provisions of the Convention to enclosed and semi-enclosed seas.25 According to this proposal, the general rules should apply in a manner consistent with the special characteristics of these seas and the needs and interests of their coastal States. The proposal did not specify who should judge and decide on the special characteristics of individual seas and on the interests and needs of their coastal States. There is no doubt that such a provision would bring about legal insecurity with respect to the regime of each individual enclosed and semi-enclosed seas. However, the Geneva draft prepared by the Chairman of the Second Committee contained a general clause of an opposite meaning in above-mentioned Article 135 of

23 24 25

UNCLOS, Official Records, Vol. III, pp. 273, 275. A/CONF.62/C.2/L.55, Article 5. A/CONF.62/C.2/L.72; this rule was also proposed by Finland at the Fourth Session.

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ISNT. Although perhaps not best formulated, this Article would make it possible adequately to determine the scope of special provisions on enclosed and semi-enclosed seas, and would thus eliminate the fears of third States for their positions in such seas. At the Fourth Session Turkey proposed the omission of the last part of Article 135, so that only the rule would be left according to which the provisions of Chapter IX should not affect the rights and duties of States under other provisions of the Convention. In addition, Finland suggested that a reserve be added to Article 135 to the effect that the rule contained in this Article would not relate to arrangements agreed upon by States bordering an enclosed or semi-enclosed sea. As already stated, although no proposal was made to delete it from ISNT, Article 135 was not entered into RSNT. This can to some extent be justified by the assertion that even without such a provision it is clear that special rules on enclosed and semienclosed seas must be applied in conformity with the general rules of the Convention, and that they must not affect the rights of third States. We consider, however, that such a provision could be useful in interpreting Part IX of the Convention and agreements subsequently concluded with respect to individual enclosed and semi-enclosed seas. Furthermore, such a provision could mitigate the resistance put up by some States which still oppose the incorporation of special rules on enclosed and semi-enclosed seas into the Convention. The Algerian, Libyan, Romanian, Yugoslav and Turkish delegation were also guided by such reasoning when they proposed at the Sixth Session that Article 135 be re-entered into ISNT. This appeal failed, however, to find an echo with the authors of ICNT.

5.

FINAL REMARKS

Owing to the limited scope of the present article, it has not been possible to present in all details the work of the Third United Nations Conference on the Law of the Sea. Because of the informal nature of work of the Second Committee and its working groups, many of these details will for ever remain unrecorded and even unknown to many States which took part in the Conference. At the end of this summary survey the question can be raised as to what links there exist between the earlier demands that individual enclosed seas be accorded a special status and the present efforts to work out some specific rules for all such seas. Even though, judging by some arguments presented by States bordering enclosed seas, such links seem to exist, there are substantial differences between both reasons and the solutions proposed. At an earlier stage, claims of individual coastal States were based on the need to protect some of their own interests and rights (regarding security, fisheries, etc.). Today, however, such claims are based on the changed conditions under which such seas are

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used, conditions which threaten to render impossible any further use of such seas both by bordering and all third States. The growing danger of pollution, exhaustion of living resources, dangers to navigation and dangers from navigation by some ships, and even of the current changes in the law of the sea, make it impossible to treat oceans and other large and open seas and small enclosed seas in the same way. In line with these essential differences between the reasons underlying present claims and those made in the past, there are also differences between solutions that used to be proposed and those now sought for the Convention on the Law of the Sea. In their earlier claims bordering States demanded special rights for themselves, with the restriction of the rights of or complete exclusion of third States. The proposals made at the Third Conference on the Law of the Sea have a different aim, viz. to enable bordering States and all third State to enjoy in such seas all rights generally guaranteed by the Convention. But in order to achieve this aim, it is necessary, because of the specific character of enclosed and semi-enclosed seas, to incorporate into the Convention some special rules on such seas. This aim compels us to ask ourselves whether the present provisions of the Informal Negotiating Texts on enclosed and semi-enclosed seas can lead to its realization. There is no doubt that they can, but it would be very useful that in the further work of the Conference these provisions should be supplemented by some more rules whose incorporation into the Convention is advocated by States bordering such seas. However, even such a supplement to Part IX of the Convention will leave much latitude for the subsequent solution of many issues by mutual agreement by all States and international organizations which make use of individual enclosed or semi-enclosed seas.

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Chapter 15

THE MEDITERRANEAN: AN ENCLOSED OR SEMI-ENCLOSED SEA?*

1. The constant desire of the majority of coastal States to extend their jurisdiction over new sea areas has found different means of expression. The States have always tried and have up to now succeeded to extend the breadth of the maritime areas which international law had already attributed to the coastal States (internal waters, territorial sea). Moreover, they have asked for and gradually obtained new areas to be submitted to their jurisdiction: the contiguous zone, the continental shelf, the archipelagic waters, the exclusive economic zone. However, apart from these general aspirations some of the coastal States claimed special sea areas because of their specific geographical situation. Thus, the archipelagic States claimed sovereignty over the waters within the archipelagos and some coastal States insisted on extending their sovereignty (or jurisdiction) over huge bays or marginal seas. Legal arguments advanced in respect of such claims vary and often more arguments are accumulated in respect of the same sea area. It is therefore sometimes difficult to discern whether a claim is based on the concept of historic bays, on the proper application of the method of straight baselines or on specific rights the coastal State should possess over a marginal sea surrounded only by its coasts.1 Special status for some smaller, marginal (internal, enclosed, semi-enclosed) seas has been demanded even in cases where more than one State surrounded them.2 The basis for such claims was the wish of the coastal States (sometimes only one of them) to restrict the rights of States other than those bordering that sea. Such demands have been most effective in respect of the Black Sea, where even today, on the basis of the 1936 Montreux Convention concerning the Rgime of the Straits, all the States are not equal in respect of the access to that sea.

First published in The Legal Regime of Enclosed or Semi-Enclosed Seas: The Particular Case of the Mediterranean, Prinosi za poredbeno proucavanje prava i medunarodno pravo, Pravni fakultet Sveucilita u Zagrebu, Institut za medunarodno pravo i medunarodne odnose, (Budislav Vukas, ed.), Volume XIX No. 22, Zagreb, 1988.
See Kurs mezhdunarodnogo prava, 3rd ed., Ed. by F.I. Kozhevnikov, Moscow, 1972, p. 118; N. Ronzitti, Sommergibili non identificati, pretese baie storiche e contromisure dello Stato costiero, in: Scritti in onore di Dante Gaeta, Milano, 1984, pp. 345-397, at p. 373 et seq. Kurs mezhunarodnogo prava, op. cit., pp. 133-134; Mezhunarodnoe pravo, G.I. Tunkin Ed., Moscow, 1974, p. 291.

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2. Be that as it may, claims for closing some seas to States not bordering them or reducing the rights they are entitled to on the basis of general rules of the law of the sea belong to the past. At the Third United Nations Conference on the Law of the Sea (UNCLOS III) restrictions of the rights of third States in enclosed or semi-enclosed seas were generally not proposed.3 Instead of that, the Conference was trying to elaborate some specific rules which would take into account the specific characteristics of such seas. Ambassador Z. Periic, chairman of the Yugoslav delegation stated the following characteristics of such seas as essential reasons for inserting special rules into the Convention: a) the complexity of navigation in these seas and in outlets connecting them with the open seas due to their small surface and poor connection with other seas; b) the growing danger from all types of pollution because of their small size and poor interchange of their waters with adjacent seas; c) the necessity of taking special precautionary measures in relation to the management, conservation and exploitation of the living resources of such seas as they are endangered by their natural characteristics and by pollution.4 Although with some hesitation and scarce content, the Conference eventually decided to adopt specific rules on enclosed or semi-enclosed seas (Part IX of the United Nations Convention on the Law of the Sea LOS Convention). These rules are adopted not only in the interest of States bordering enclosed or semi-enclosed seas but also for the benefit of all States using them. 3. The first problem UNCLOS III was faced with in respect of the enclosed or semienclosed seas was the definition of such seas. The greatest impact on the definition eventually inserted in Article 122 of the LOS Convention was made by the proposal of Iran, which contained two separate definitions for enclosed and semi-enclosed seas.5 However, after a brief discussion in the Second Committee of the Conference,6 its Chairman (R. Galindo Pohl El Salvador), decided to draft a single definition of an enclosed or semi-enclosed sea7 which eventually became Article 122 of the LOS Convention. The consequence of that decision is a vague definition the constituent elements of which are the following:

4 5

6 7

The draft articles on enclosed and semi-enclosed seas proposed by Iran were one of the rare exceptions; doc. A/CONF.62/C.2/L.72 of 21 August 1974. On the negotiations concerning Part IX of the LOS Convention see: B. Vukas, Enclosed and semi-enclosed seas, Iranean Review of International Relations, Nos. 11-12, Spring 1978, The New Law of the Sea, pp. 171-196; B. Vukas, Zatvorena ili poluzatvorena mora, Novo pravo mora, Prinosi za poredbeno proucavanje prava i medunarodno pravo, Pravni fakultet Sveucilita u Zagrebu, Institut za medunarodno pravo i medunarodne odnose, Vol. XV, No. 17, pp. 138-157. This authors notes from the informal meeting of the Second Committee held on 27 April 1976. See supra note 3. Other suggestions for the definition: USSR, doc. C.2/Informal Meeting/13 of 27 April 1978; Algeria, Iraq, Libya, Romania and Turkey, doc. C.2/Informal Meeting/18 of 28 April 1978 and doc. C.2/Informal Meeting/18/Rev. 1 of 1 September 1978. UNCLOS III, Official Records, Volume II, pp. 273-278. Art. 133 in Informal single negotiating text (ISNT) doc. A/CONF. 62/WP. 8/ Part II of 7 May 1975.

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a) If an enclosed or semi-enclosed sea satisfies other criteria of this definition, the geographical denomination of the sea is irrelevant: the LOS Convention considers an enclosed or semi-enclosed sea any gulf, basin or sea possessing the characteristics required in Article 122. b) In order to be considered an enclosed or semi-enclosed sea for the purposes of this Convention, a gulf, basin or sea has to be surrounded by two or more States. Thus, if all the coasts of a gulf, basin or sea belong to one coastal State it shall not be considered an enclosed or semi-enclosed sea even if it possesses other characteristics required by Article 122. The exclusion of all the seas surrounded by the coasts of one State only from the notion of enclosed or semi-enclosed seas is justified because the only requirement according to Part IX as regards such seas increased co-operation of the coastal States is in such case irrelevant. c) Apart from being surrounded by two or more States an enclosed or semi-enclosed sea has to satisfy at least one of the following conditions: it has to be connected to another sea or the ocean by a narrow outlet or it has to consist entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States. Although in the majority of cases an enclosed or semi-enclosed sea will be connected to another sea or the ocean by a strait, the term strait was deliberately not used to avoid referring to Part III of the Convention dealing with Straits used for international navigation. The reason for basing the definition on the connection of an enclosed or semi-enclosed sea with other seas by a narrow outlet is obvious and justified: every such sea even when of considerable size due to its poor connection with other seas is particularly vulnerable and deserves special protection. The necessity of protecting endangered seas is also present in the second alternative condition: small seas are susceptible of being vulnerable to pollution and over-exploitation of their natural resources. However, it is a question whether the drafters of the Convention have not exaggerated when they proclaimed an enclosed or semi-enclosed sea even such a sea as that consisting ... primarily of the territorial seas and exclusive economic zones ...? According to this requirement rather large seas such as the Norwegian Sea, the Greenland Sea or the Tasman Sea can be considered enclosed or semi-enclosed seas as they primarily consist of the territorial seas and economic zones of the coastal States. However, the formulation of this last condition seeks the answer to another question: does the Convention require that the coastal States actually extend their territorial seas and that they establish their exclusive economic zones to cover the extent required by the Article 122, or is it sufficient that the surface of the sea is such that the potential extension of the territorial seas and the potential establishment of the exclusive economic zones could embrace almost all the surface of the sea? Notwithstanding the language of Article 122, we would opt for the latter interpretation, as the general reason for having

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some specific rules for enclosed or semi-enclosed seas is based on their natural, geographical characteristics. Thus, the definition of a particular sea as an enclosed or semi-enclosed sea can not depend upon the actual breadth of the territorial seas or the decisions of the coastal States concerning the establishment of their exclusive economic zones. Moreover, it should be pointed out that when at UNCLOS III States agreed to establish the regime of the exclusive economic zone no one expected that there would be coastal States who would hesitate to establish their own zone. 4. In the light of the above interpretation of the definition of enclosed or semienclosed seas, whether the Mediterranean satisfies the requirements of the definition needs to be clarified. However, prior to the definite adoption of the definition in Article 122 of the LOS Convention, the possibility of defining the Mediterranean as an enclosed or semi-enclosed sea was discussed on terms differing from those contained in Article 122. Thus, for example L.M. Alexander considered semi-enclosed seas only primary seas and not parts thereof. According to this concept the Mediterranean itself should be considered a semienclosed sea but not so its constituent parts (the Adriatic Sea, the Aegean Sea, etc).8 Another reasoning, leading to an opposite conclusion concerning the Mediterranean, was expressed by the delegation of the Soviet Union at UNCLOS III. According to the soviet delegate Barabolya, seas crossed by international waterways can not be considered enclosed or semi-enclosed seas. However, the representatives of some other States (Israel, Thailand) included the Mediterranean among enclosed or semi-enclosed seas.9 Contrary to both of these restrictive concepts excluding either the Mediterranean itself or its constituent seas from the category of enclosed or semi-enclosed seas it is our view that both the Mediterranean as well as the smaller seas which form it (the Adriatic Sea, the Black Sea, the Aegean Sea, etc.) are to be considered enclosed or semienclosed seas in the sense of Part IX of the LOS Convention.10 The conclusion is proved not only by comparing the elements of the definition in Article 122 with the geographical realities in the Mediterranean, but also by the fact that all the Mediterranean States as well as the coastal States in the Adriatic, the Black Sea, etc. have already begun extending their co-operation along the lines indicated in Part IX (Art. 123). As far as the Mediterranean itself is concerned the fact that it is surrounded by twenty one States and that it is connected to the Atlantic Ocean only by the Strait of Gibraltar suffices to define that sea as an enclosed or semi-enclosed sea in the terms of Article

8 9 10

L.M. Alexander, Regional Arrangements in the Oceans, American Journal of International Law, Vol. 71, 1977, pp. 84-109, at pp. 90-91. UNCLOS III, Official Records, Volume II, p. 274, para. 12; p. 275, para. 26; p. 277, para, 49. Although the Black Sea and its coastal States have been excluded from some forms of co-operation among the rest of the Mediterranean States (e.g. from the Mediterranean Action Plan), it is an undeniable fact that the Black Sea is only the most eastern part of the Mediterranean Sea; see Pomorska enciklopedija, 2nd ed., Volume II, Zagreb, 1975, p. 55.

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122. Moreover, once the exclusive economic zones are established, it will consist almost entirely of the territorial seas and exclusive economic zones of the coastal States. All its constituent seas are surrounded by two or more States. The proportions of these seas are such that they all satisfy the last condition mentioned in Article 122. Moreover, some of them are connected to another sea by a narrow outlet (the Black Sea, the Adriatic Sea). 5. Although many proposals for the contents of Part IX of the LOS Convention were made at UNCLOS III, only one part of the States bordering such seas were interested in adopting special rules on enclosed or semi-enclosed seas. Several States proposed rules for the regulation of navigation in such seas (Algeria, Iraq, Finland, United Arab Emirates, Romania, Israel, Libya, Yugoslavia).11 Moreover, Yugoslavia was particularly interested in assuring the free ingress and egress into such seas.12 Algeria, Iraq, Libya, Romania and Turkey proposed special rules on the delimitation of marine areas for enclosed or semi-enclosed seas.13 None of these suggestions were supported enthusiastically either by the rest of the States bordering the enclosed or semi-enclosed seas or by other participants at UNCLOS III. Moreover, these proposals even endangered the inclusion of Part IX in the LOS Convention.14 Namely, the vast majority of the States did not want to have specific rules on such important questions as navigation or delimitation for enclosed or semienclosed seas, the category of seas not being defined clearly enough. The Conference adopted only a set of rules on the co-operation of States bordering an enclosed or semienclosed sea in respect of the living resources of the sea, the marine environment and the scientific research (Art. 123). 6. The co-operation of coastal States was envisaged as early as in the first set of draft articles elaborated by the Second Committee of UNCLOS III in 1975 (Informal single negotiating text ISNT). However, the then Chairman of the Second Committee, R. Galindo Pohl provided for a duty of coastal States to co-operate. The introductory part to the provision corresponding to Article 123 of the LOS Convention read:
States bordering enclosed or semi-enclosed seas shall co-operate with each other in the exercise of their rights and duties under the present Convention. To this end they shall, directly or through an appropriate regional organization: (a) ......15

11 12 13 14 15

See proposals: A/CONF. 62/C.2/L.20 of 23 July 1974; A/CONF.62/C.2/L.71 of 21 August 1974; C.2/Informal Meeting/18; C.2/Informal Meeting/18/Rev. 1. Doc. C.2/Informal Meeting/3 of 26 April 1978. Doc. C.2/Informal Meeting/18/Rev. 1. Doc. C.2/Informal Meeting/61 of 21 March 1980. Art. 134 of doc. A/CONF. 62/WP. 8/Part II.

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At the Fourth Session of the Conference the proposals of Mexico and Tunisia to change the obligation of the coastal States into a mere suggestion to co-operate received a considerable amount of support.16 Therefore, the new Chairman of the Second Committee, A. Aguilar (Venezuela), introduced in the next draft (Revised single negotiating text RSNT) the provision on the co-operation of coastal States of an almost equal content as the one eventually included at the beginning of Article 123 of the LOS Convention.17 7. Article 123 of the LOS Convention deserves to be analysed in respect of its legal nature, the fields of co-operation it envisages and the partners which should be involved in the co-operation. Although the character of this provision was drastically changed in comparison with the text proposed by Galindo Pohl in 1975, it cannot be claimed that the present text of Article 123 amounts to a mere recommendation to States bordering an enclosed or semi-enclosed sea. Even the first element of the introductory part of Article 123 leaves some doubts in this respect; perhaps less in English (States ... should co-operate ...), than in French (Les Etats ... devraient cooprer ...). The second element shows rather clearly that this is something more than a simple recommendation to States. Namely, States are instructed on the manner in which they shall achieve co-operation: to this end they shall endeavour to co-ordinate their activities in the three fields mentioned in Article 123. Although it is difficult to indicate which specific actions are required from States in order to satisfy the terms of this provision, it is obvious that a refusal to undertake negotiations or a rejection of all bona fide proposals of other coastal States in respect of the living resources, the marine environment or the scientific research would be contrary to Article 123. Therefore, it has to be concluded that Article 123 contains an obligation sui generis (a bona fide obligation according to T. Scovazzi); there is indeed a legal, and not only a moral obligation to co-ordinate activities in the three mentioned fields.18 Article 123 indicates only three subjects of co-operation i.e. of co-ordination of the activities of coastal States: a) the management, conservation, exploration and exploitation of the living resources of the sea; b) the implementation of their rights and duties with respect to the protection and preservation of the marine environment, and c) their scientific research policies; they shall endeavour to undertake, where appropriate, joint programmes of scientific research in the area. The three fields in which the necessity of co-operation has been accentuated are those in which the co-operation of all the users of enclosed or semi-enclosed seas is particularly important for the protection and preservation of the seas.

16 17 18

This authors notes, taken at the informal meeting of the Second Committee on 27 April 1976. Art. 130 of doc. A/CONF. 62/WP. 8/Rev. 1/Part II of 6 May 1976. T. Scovazzi, Implications of the new law of the sea for the Mediterranean, Marine Policy, Vol. 5, pp. 302312.

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Although the co-operation of coastal States has been pointed out in the first place (title of Article 123; its introductory part; paras. /a/-/c/, the Convention requires that the States bordering an enclosed or semi-enclosed sea invite, as appropriate, other interested States or international organizations to co-operate with them in furtherance of the provisions of this article (Art. 123/d/). The term other interested States should be understood as meaning, in the first place, all other States users of an enclosed or semi-enclosed sea; as interested international organizations competent universal as well as regional organizations should be considered. 8. The LOS Convention not yet being in force one is tempted to analyse each of its parts in respect to their relations to customary international law.19 However, due to the scarcity of the contents of Part IX and the dubious obligations of States under Article 123, this question does not seem to be a very intriguing one as far as the enclosed or semi-enclosed seas are concerned. In this respect, nevertheless, some facts should be pointed out. First, the attitude of the Mediterranean States in respect of the LOS Convention in general. The majority of States voted for its adoption; Bulgaria, Italy, Spain and the USSR (as well as the Ukrainian SSR) abstained; Israel and Turkey voted against the adoption of the Convention and Albania did not take part in the votes.20 It should be stressed that Part IX was not decisive for the attitude of States in respect of the adoption of the Convention. It can only be assumed that Turkey may have had different position had Part IX contained specific rules on the extension and delimitation of marine areas in enclosed or semi-enclosed seas. By 9 December 1984 all the Mediterranean States except Albania, Israel, Syria and Turkey signed the Convention. However, as of 31 October 1987 only Egypt, Tunisia and Yugoslavia have ratified the LOS Convention.21 Second, the co-operation envisaged in Article 123, as mentioned already supra in para 4, could be noticed long before UNCLOS III. Thus, as early as in 1949 the General Fisheries Council for the Mediterranean was established within the framework of the Food and Agriculture Organization (FAO). Specific provisions for the protection of the Mediterranean from pollution have been agreed upon in general conventions (since the 1954 International Convention for the Prevention of Pollution of the Sea by Oil), in regional treaties (the 1976 Barcelona Convention and related protocols) and in subregional agreements (e.g. the 1974 Italo-Yugoslav Agreement on Co-operation for the Protection of the Waters of the Adriatic Sea and Coastal Zones from Pollution).22 Therefore, Part

19

20 21 22

See B. Vukas, The Impact of the Third United Nations Conference on the Law of the Sea on Customary Law, in: The New Law of the Sea, Ed. by Ch. L. Rozakis and C.A. Stephanou, Amsterdam New York Oxford, 1983, pp. 33-54. UNCLOS III, Official Records, Volume XVI, pp. 154-155, para. 28. Law of the Sea Bulletin, No. 10, November 1987, pp. 1-5. See B. Bohte and B. Vukas, International Law and the Pollution of the Sea, in: Hague Zagreb Essays 3, C.C.A. Voskuil and J.A. Wade Editors, T.M.C. Asser Institute, The Hague, 1980, pp. 143-163.

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IX of the LOS Convention may well contribute to the consolidation of the existing practices of the Mediterranean States. 9. The provisions on the co-operation of States envisaged in Article 123 of the LOS Convention and the ever increasing co-operation of States bordering enclosed or semienclosed seas impose the necessity of determining the real scope of the provisions of Part IX within the general framework of the Convention. The final solution in this respect differs substantially from the proposition made by Iran at the beginning of UNCLOS III. In Article 2 of its draft articles on enclosed and semi-enclosed seas Iran proposed the following provision:
The general rules set out in this Convention shall apply to an enclosed or semi-enclosed sea in a manner consistent with the special characteristics of these seas and the needs and interests of their coastal States.23

The ICNT contained an opposite provision in which the regime of enclosed or semienclosed seas was subjected to the general rules of the Convention:
The provisions of this part shall not affect the rights and duties of coastal or other States under other provisions of the present Convention, and shall be applied in a manner consistent

Although at the Fourth Session of the Convention there was no substantial opposition to this provision, it was ommitted from the next draft the RSNT.24 Such an omission can be justified to a certain degree by the claim that even without this provision it is clear that the modest special provisions on enclosed or semi-enclosed seas must be applied subject to the general rules contained in other parts of the Convention and that these provisions cannot affect the rights of States not bordering these seas. However, it is regrettable that a clear provision to that effect was not included in Part IX. 10. In the opinion of the States Parties to the LOS Convention it represents the codification and progressive development of the law of the sea ... (seventh preambular paragraph). However, the progressive development of international law does not always lead to precise and detailed legal rules. Many of the provisions of the LOS Convention (e.g. in the Part on the protection and preservation of the marine environment and in the Part on marine scientific research) can be defined as promotional. Their role is to promote both immediate international co-operation and further development of international law. The value of Part IX of the Convention should be assessed in this sense. Article 123 should stimulate the co-operation of States and international organizations in respect to the use and protection of enclosed or semi-enclosed seas as well as to the

23 24

DOC. A/CONF. 62/C. 2/L. 72. Doc. A/CONF. 62/WP. 8/Rev. 1/Part II.

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adoption of regional and subregional rules concerning particular seas. In fact, besides being based on existing rules, every international co-operation contributes also to the development of further international rules, standards, procedures and practices. The establishment and the implementation of the Mediterranean Action Plan and the system of treaties based on the Barcelona Convention are the best example of the creative link between the co-operation of States and the elaboration of international law. We can only hope that similar results will be achieved in other fields, i.e. in respect to the initiative to transform the Mediterranean into a zone of peace, security and co-operation.

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X SETTLEMENT OF DISPUTES

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Chapter 16

LE CHOIX DES PROCDS PRVUS PAR LARTICLE 287 DE LA CONVENTION DE 1982 SUR LE DROIT DE LA MER*

1. Les procds prvus larticle 287, tels quils sont mentionns dans le titre de mon intervention, appartiennent la Partie XV, Section 2 de la Convention des Nations Unies sur le droit de la mer. Daprs le titre de cette section, il sagit de procdures obligatoires aboutissant des dcisions obligatoires. Mais, mon devoir est prcis par les suggestions que les concepteurs de ce Colloque mont communiques. Ils mont dit que je devrai traiter aussi des procdures naboutissant pas des dcisions obligatoires. Cette suggestion moriente vers la Section 1 de la mme Partie de la Convention o, sous le titre dispositions gnrales se cachent les rgles concernant lex procdures naboutissant pas des dcisions obligatoires. En principe toutes ces procdures, celles aboutissant des dcisions obligatoires, comme aussi celles aboutissant des dcisions facultatives, sont applicables tout diffrend relatif linterprtation ou lapplication de la Convention sur le droit de la mer, y inclus les diffrends concernant la dlimitation de zones maritimes. Lapplicabilit de la Partie XV aux diffrends concernant la dlimitation de la zone conomique exclusive et le plateau continental est confirme par le paragraphe 2 des articles 74 et 83. 2. Mais, avant de chercher les procdures naboutissant pas des dcisions obligatoires il faut souligner que la Convention elle-mme donne un rle subsidiaire au systme de rglement des diffrends quelle tablit. Il y a plusieurs dispositions dans la Partie XV, Section 1, qui confirment la priorit de tous les autres moyens pacifiques choisis par les parties un diffrend. Daprs larticle 280, les tats peuvent convenir tout moment de rgler par tout moyen pacifique de leur choix un diffrend surgissant entre eux.... Dans ce cas, les procdures prvues dans la Convention ne sappliquent que si lon nest pas parvenu un rglement par le moyen choisi par les parties. Il faut ajouter que le paragraphe premier de larticle 281 finit par une phrase surprenante: elle permet aux parties un diffrend de se mettre daccord pour exclure la possibilit dengager une autre procdure si on nest pas parvenu un rglement par le moyen choisi dans leur accord spcial!

Ce rapport a t prsent au Colloque international Le processus de dlimitation maritime tude dun cas fictif, Monaco 27-29 mars 2003.

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Dun autre ct, larticle 282 donne la priorit aux procdures aboutissant une dcision obligatoire convenue pour les diffrends relatifs linterprtation ou lapplication de la Convention dans le cadre dun accord gnral, rgional ou bilatral, ou accept de tout autre manire. 3. Mais, revenons notre tche: les procdures naboutissant pas des dcisions obligatoires, cest--dire aux procdures initiales du systme tabli par la Convention elle-mme. Daprs larticle 283, paragraphe 1, lorsquun diffrend surgit entre des tats Parties la Convention, les parties en litige doivent procder promptement un change de vues concernant le rglement du diffrend par la ngociation ou par dautres moyens pacifiques. On pourrait imaginer que lchange de vues reprsente dj un moyen permettant aux parties en litige de chercher une solution. Mais, le texte de larticle 283 ne nous permet pas une telle conclusion. Cest--dire que daprs cet article lchange de vues sert trois buts diffrents: Primo: lchange de vues permet aux parties en litige de choisir un moyen pacifique de rglement du diffrend; larticle suggre que a peut tre la ngociation ou nimporte quel autre moyen pacifique; Secundo: les parties doivent procder promptement un change de vues chaque fois quil a t mis fin une procdure de rglement dun diffrend sans que celui-ci ait t rgl; Tertio: les parties sengagent dans un change de vues chaque fois quun rglement est intervenu et que les circonstances exigent des consultations concernant la manire de le mettre en uvre.

Bien quil soit difficile dimaginer une diffrence substantielle entre lchange de vues et la ngociation, il est clair que la Convention sur le droit de la mer traite lchange de vues comme une procdure obligatoire dans diffrentes phases du processus de rglement dun diffrend, tandis que la ngociation nest quun moyen facultatif mentionn seulement comme un exemple des moyens pacifiques qui peuvent tre choisis par les parties en litige. Naturellement, une fois choisie, la ngociation revt les caractristiques traditionnelles de ce moyen de rglement des diffrends: les parties ont le devoir de ngocier de bonne foi, mais pas une obligation de parvenir une solution. Le deuxime moyen naboutissant pas des solutions obligatoires mentionn la Section 1, cest la conciliation. Mais, je ne vais pas traiter ce moyen, il sera prsent par mon collgue, Monsieur le juge Marsit. 4. Et maintenant, je passe aux procdures aboutissant des dcisions obligatoires, prvues par larticle 287. A cause des diffrentes altitudes des tats envers ce type de procd en gnral, et la prfrence de chaque tat pour certaines procdures dtermines, larticle 287 offre quatre moyens:

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une cour nouvelle, spcialise en droit de la mer, cest--dire le Tribunal international du droit de la mer; la Cour internationale de Justice, lorgane judiciaire principal des Nations Unies; larbitrage et, finalement, la possibilit de crer des tribunaux darbitrage spcialiss dans diffrents domaines du droit de la mer. Mais, comme la dlimitation de zones maritimes ne figure pas sur la liste des matires mentionnes lannexe VIII, nous pouvons presque ignorer larbitrage spcial. Egalement, je ne mentionnerai pas dautres aspects de la Section 2, qui ne concernent pas le sujet de notre colloque, ni les rgles ayant une signification tout fait gnrale.

Tous ces cours et tribunaux (sauf les tribunaux darbitrage spcialiss) ont comptence pour connatre de tous diffrends relatifs linterprtation ou lapplication de la Convention, mais aussi comptence pour connatre de tout diffrend qui est relatif linterprtation ou lapplication dun accord international se rapportant aux buts de la Convention et qui lui est soumis conformment cet accord (art. 288). Ils appliquent les dispositions de la Convention et les autres rgles du droit international qui ne sont pas incompatibles avec celle-ci. Mais, si les parties un diffrend sont daccord, les cours et tribunaux peuvent statuer ex aequo et bono (art. 293). 5. Comme je lai dj signal, la liste de quatre procdures est prvue pour permettre aux tats de choisir un ou plusieurs de ces moyens. Le choix nest pas obligatoire; chaque tat a le droit, mais pas lobligation, de choisir un ou plusieurs de ces moyens lorsquil signe ou ratifte la Convention ou y adhre, ou nimporte quel moment par la suite (par. 1). Le choix se fait par voie de dclaration crite. Naturellement, cette dclaration peut tre modifie ou rsilie. Mais, tous les moyens prvus larticle 287 nont pas un traitement gal: la procdure darbitrage est le grand vainqueur des ngociations de Genve, Montreux et New York. Le systme est le suivant: si les parties en litige ont accept la mme procdure, ce litige ne peut tre soumis qu cette procdure, moins que les parties nen conviennent autrement. La dtermination en faveur de larbitrage se manifeste dans deux cas: Primo: un tat Partie la Convention qui est partie un diffrend non couvert par une dclaration en vigueur est rput avoir accept la procdure darbitrage; Secundo: si les parties en litige nont pas accept la mme procdure, le litige en question ne peut tre soumis qu la procdure darbitrage, moins que les parties nen conviennent autrement.

Mais il faut rappeler que cette priorit de larbitrage nexiste pas poules parties ayant accept la juridiction de la Cour internationale de Justice la base de larticle 36 de son Statut. Cette conclusion est fonde sur larticle 282 de la Convention, mentionn auparavant.

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Pour 19 tats, le Tribunal du droit de la mer est le premier choix ou au moins une juridiction gale une autre, ou plusieurs autres; 14 tats choisissent le mme rle pour la Cour internationale de Justice; 5 tats larbitrage; et 5 tats larbitrage spcial.

Il y a 11 tats qui, en choisissant plusieurs juridictions, ont donn priorit certaines dentre elles. 6. Le principe selon lequel tout diffrend qui na pas t rgl par lapplication dautres moyens, la demande dune partie au diffrend peut tre soumis une cour ou un tribunal prvus larticle 287, a t accept sous rserve de ladoption de deux listes dexceptions. La premire liste contient des limitations applicables automatiquement tous les tats Parties la Convention, mais elle na pas dintrt pour le sujet (art. 297). La deuxime permet aux tats de dclarer quils nacceptent pas une ou plusieurs des procdures devant les cours et tribunaux en ce qui concerne une ou plusieurs des catgories de diffrends numrs larticle 298. Il sagit de diffrends concernant: la dlimitation de zones maritimes ou les diffrends qui portent sur des baies ou titres historiques; les diffrends relatifs des activits militaires; les diffrends pour lesquels le Conseil de Scurit des Nations Unies exerce ses fonctions daprs la Charte, moins que le Conseil nincite les parties rgler leur diffrend par les moyens prvus dans la Convention.

Seulement pour les diffrends concernant la dlimitation de zones maritimes, la Convention prvoit des procdures remplaant la juridiction de cours et tribunaux. Tout dabord, elle oblige les parties un tel diffrend de procder des ngociations, et si elles ne parviennent pas un accord dans un dlai raisonnable, chaque partie a le droit de soumettre le diffrend la conciliation. Pour le moment il y a 20 tats Parties la Convention qui ont fait des dclarations concernant les exceptions facultatives: 13 dentre eux ont exclu lapplication des procdures de rglement des diffrends obligatoires et juridiquement contraignantes en ce qui concerne les diffrends relatifs la dlimitation de zones maritimes; 11 tats ont exclu les diffrends relatifs des activits militaires, 7 les diffrends traits par le Conseil de Scurit.

Chapter 17

MAIN FEATURES OF COURTS AND TRIBUNALS DEALING WITH LAW OF THE SEA CASES*

The purpose of this brief paper is to point out some of the main characteristics and problems arising out of the use of compulsory procedures entailing binding decisions in the settlement of disputes system established under the Law of the Sea Convention. The system is based on four different fora for the peaceful settlement of disputes listed in article 287: two types of arbitral tribunals, the International Court of Justice, and the International Tribunal for the Law of the Sea. The principles that every dispute concerning the interpretation or application of the Convention can eventually be submitted at the request of any party to the dispute to a compulsory procedure entailing binding decisions has often been pointed out as one of the main contributions of the Third United Nations Conference to the development of the law of the sea.1 In the Convention, this principle has been implemented by many specific rules. It has, however, also been considerably restricted in its application. The first characteristic of the system is the right of States Parties to the Convention to choose one or more of the courts and tribunals listed in article 287. To date, twentyfour States have made a declaration concerning their choice. Fifteen States have indicated the Tribunal as the only, their preferred, or one of the preferred means for the settlement of disputes. An equal number of States have expressed such preference for the ICJ. Two States have expressly rejected the ICJ as a means for the resolution of disputes under the Convention.2 The small number of States having made a declaration expressing their choice renders even more important the rule according to which a State Party to the Convention, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration.3 In addition to this rule, there is the provision that arbitration shall

First published in Current Marine Environmental Issues and the International Tribunal for the Law of the Sea, Center for Oceans Law and Policy, (Myron H. Nordquist, John Norton Moore, eds.), Martinus Nijhoff Publishers, The Hauge/London/New York, 2001.
See article 286 of the Convention in: The Law of the Sea, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index (New York: United Nations, 1983). Oceans and Law of the Sea, Division for Ocean Affairs and the Law of the Sea, Settlement of Disputes Mechanism, <http://www.un.org/Depts./los/los_sdml.htm>. Article 287, para. 3.

1 2 3

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17 LAW OF THE SEA CASES AND INTERNATIONAL JUDICIAL SETTLEMENT

be applied to disputes where the parties have not accepted the same procedure.4 The importance of this provision does not depend upon the number of declarations but rather on the variety of means chosen. Thus, in a dispute involving two States that have opted for permanent courts one for the ICJ and the other for ITLOS the regulations concerning arbitration in accordance with Annex VII will apply! This solution does not seem very logical. Be that as it may, we must recall that under article 282 of the Convention, any disputes settlement mechanism that is binding on the disputing parties is favored over the courts and tribunals listed in article 287. According to article 282, if the States Parties to the Convention that are parties to a dispute concerning the interpretation or application of the Convention have agreed that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided in article 287. It is interesting to note that Judge Treves includes in those procedures, agreed outside the Conventions system, even the ICJ itself, in case all parties to a dispute have accepted the Courts compulsory jurisdiction under article 36, paragraph 2, of the Courts Statute.5 Although the conclusion seems plausible, it should be stressed that article 282 would seem to give priority to procedures that fall outside of Part XV of the Convention, while in respect of the disputes concerning the interpretation or application of the Law of the Sea Convention, the ICJ is one of the procedures on which the system of article 287 is based. If the variety of the fora for the settlement of disputes offered to States should have the effect of increasing the number of cases brought before the courts and tribunals, the restrictions of their jurisdiction ratione materiae have the opposite effect. The Convention contains a poorly drafted article on limitations on applicability of compulsory procedures entailing binding decisions6 and an impressive list of optional exceptions to applicability of such procedures.7 Fortunately, only twelve States have to date made declarations concerning non-acceptance of the procedures entailing binding decisions with respect to one or more of the categories of disputes listed in article 298.8 It is also interesting to note that eight States have made reservations excluding various disputes concerning law of the sea issues from their acceptance of the jurisdiction of the International Court of Justice further to article 36, paragraph 2, of its Statute.9

4 5 6 7 8 9

Article 287, para. 5. T. Treves, Conflicts between the International Tribunal for the Law of the Sea and the International Court of Justice, 31 New York University Journal of International Law and Politics (1999): 812. Article 297. Article 298. Declarations made upon ratification of, accession to, or succession with respect to the Convention: <http:// www.un.org/Depts/los/los_decl.htm>. Declarations recognizing as compulsory the jurisdiction of the International Court of Justice: <http://www.icjcij.org/icjww/ibasicdocuments/ibasictext/ibasicdeclarations.htm>.

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Notwithstanding the general equality of the courts and tribunals listed in article 287, the differences of their jurisdiction ratione personae and ratione materiae inevitably affect their present and future activities. A great advantage of the ICJ and arbitration outside the Conventions framework is the fact that their jurisdiction is not limited to the law of the sea. Therefore, for example, they can deal with a dispute concerning land and maritime delimitation, while under article 287, jurisdiction could only be established in respect of maritime delimitation. The arbitral tribunals established in accordance with Annex VIII would have the most limited jurisdiction of all the means set out in article 287. On the other hand, only the ITLOS Seabed Disputes Chamber has jurisdiction in respect of disputes and requests for advisory opinions concerning activities in the Area.10 As those activities at present are almost nonexistent, this jurisdiction is not likely to generate cases or requests for advisory opinions in the near future. However, the provisions on the jurisdiction of the Seabed Disputes Chamber disclose more clearly than any other part of the Convention the broad jurisdiction of ITLOS ratione personae. The Chamber is open to States Parties, the International Seabed Authority, its Enterprise, state enterprises, and natural or juridical persons.11 Furthermore, the Tribunal itself has to open to all those entitled to become parties to the Convention: States, self-governing associated States, non-fully independent territories, and international organizations.12 In addition to the exclusive jurisdiction of ITLOS in respect of the activities in the Area, the Tribunal has some priority in respect of two specific issues: the prompt release of vessels and crews, and the prescription of provisional measures.13 This priority established under the provisions of the Convention has resulted in several cases dealt with by the Tribunal in the first four years of its work.14 Finally, an important advantage of the ICJ in comparison with all other courts and tribunals should be mentioned. Article 94, paragraph 2, of the United Nations Charter reads:
If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

10 11 12 13 14

See articles 187 and 191. See article 187. See article 305. See articles 292 and 290. M/V Saiga (Prompt Release) (1997); M/V Saiga (Provisional Measures) (1998); Southern Bluefin Tuna Cases (1999); Camouco (2000); and Monte Confurco (2000).

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State Parties to the Law of the Sea Convention should find a solution that would contribute to the enforcement of the judgments rendered by the tribunals established under the Convention. A solution permitting a party to address the Meeting of States Parties and/or the General Assembly of the United Nations, if the other party fails to perform the obligations incumbent upon it under a judgment rendered by ITLOS or an arbitral tribunal should be found. A conclusion at the end of these brief remarks would be out of place. Let me only add a final note. The development of the law of the sea in the last thirty-five years is but another proof of the chaotic development of international law and international institutions. The revision of this part of international law was commenced because of the impression created by the developed countries that the exploitation of mineral resources of the ocean floor was imminent. Due to this conviction, half of the text of the Law of the Sea Convention deals with this presently nonexisting activity. The adoption of the disputes settlement system was also partly due to the perceived necessity of resolving disputes concerning the exploration and exploitation of the Area. The structure and the system of dispute settlement under the Convention as well as the attribution of competences to the ICJ and the tribunals were also tailored to the new vision of what was viewed as the most important activities at sea. The reality of today is quite different from what was expected in the euphoria of the 1960s and 1970s. The courts and tribunals, not only those mentioned in article 287, are left with the traditional disputes concerning law of the sea and maritime issues. Nevertheless, there will be more and more problems and disputes concerning the conservation and exploitation of the living resources of the sea and the protection of the environment. Yet, it seems to me that the existing dispute settlement system is able to cope with all the developments in the foreseeable future.

Chapter 18

THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA: SOME FEATURES OF THE NEW INTERNATIONAL JUDICIAL INSTITUTION*
1. INTRODUCTION

Several decades after World War II differently from the general development of international law international adjudication was a neglected field of international relations. Arbitration was rarely used and the International Court of Justice was condemned to long periods of inactivity. The weakening of the Cold War and its final collapse contributed to the more frequent resort to already existing mechanisms for the peaceful settlement of disputes and to the creation of new ones. The Iran-United States Claims Tribunal was followed by Tribunals for War Crimes committed in former Yugoslavia and in Rwanda, and eventually by the Statute of the permanent International Criminal Court. On the regional level, in addition to the long-existing European Court of Justice and the European Court of Human Rights, the Conference on Security and Co-operation in Europe first created a mechanism for the peaceful settlement of disputes and eventually established the Court of Conciliation and Arbitration. The characteristics of the present developments in this field are the specialisation of the newly created bodies and the diversity of entities which have access to them (individuals, juridical persons, non-self-governing territories, international organisations). A major break-through was achieved at the Third United Nations Conference on the Law of the Sea (UNCLOS III, 1973-1982). Contrary to the codification at UNCLOS I (Geneva, 1958), UNCLOS III adopted a system of settlement of disputes concerning the interpretation or application of the Convention1 as an integral part of the United

First published in The International Tribunal for the Law of the Sea Law and Practice, (P. Chandrasekhara Rao, Rahmatullah Khan, eds.), Kluwer Law International, The Hague/London/Boston, 2001.
In addition to Part XV entitled Settlement of Disputes, the majority of the rules on the subject are contained in Section 5 Settlement of Disputes and Advisory Opinions of Part XI; in the provisions dealing with The Area and in four Annexes to the Convention Annex V Conciliation; Annex VI Statute of the International Tribunal for the Law of the Sea; Annex VII Arbitration; Annex VIII Special Arbitration. Some basic writings on the settlement of disputes system in the LOS Convention: A.O. Adede, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea (1987); R. Ranjeva, Settlement of Disputes, in: R.-J. Dupuy, D. Vignes (eds.), A Handbook on the New Law of the Sea, Part II (1991), pp. 1333-1401; L.B. Sohn, Settlement of Law of the Sea Disputes, 10 The International Journal of Marine and Coastal Law (1995), pp. 205-217.

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Nations Convention on the Law of the Sea (LOS Convention).2 States Parties are obliged to settle such disputes by peaceful means, in accordance with the relevant provisions of the UN Charter (art. 279 of the LOS Convention), and they are free to choose at any time any peaceful means for the settlement of their dispute (art. 280). However, the Convention itself provides for an elaborate obligatory system of dispute settlement which includes not only the so-called diplomatic means of peaceful settlement (exchange of views between the parties to a dispute, conciliation), but also judicial procedures (procedures entailing binding decisions according to the title of Part XV, Section 2, of the LOS Convention). Where no settlement has been reached through the exchange of views of the parties, conciliation or other peaceful means of the choice of the parties, any party to a dispute may submit the dispute to one of the procedures entailing binding decisions provided for in the Convention (art. 287, para. 1). In addition to the already existing International Court of Justice (hereafter ICJ), the Convention envisages the creation of new procedures specialised in the law of the sea: the International Tribunal for the Law of the Sea, an arbitration tribunal and special arbitration tribunals. While the ICJ, the International Tribunal for the Law of the Sea (hereafter ITLOS, or the Tribunal) and the arbitration tribunal have a general jurisdiction, the special arbitration tribunals may be entrusted with the following categories of disputes: 1. fisheries; 2. protection and preservation of the marine environment; 3. marine scientific research, and 4. navigation, including pollution from vessels and by dumping. However, not all the disputes concerning the interpretation or application of the Convention may be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under Section 2 Compulsory procedures entailing binding decisions. The agreement at UNCLOS III was possible only when the applicability of such procedures concerning disputes with regard to the exercise by a coastal State of its sovereign rights or jurisdiction was limited (art. 297); and optional exceptions were provided with respect to disputes concerning sea boundary delimitations, disputes concerning military activities and enforcement activities, and disputes in respect of which the UN Security Council is exercising its functions (art. 298). Yet, nothing can prevent parties to a dispute falling into the above categories to agree to submit it to any of the procedures entailing binding decisions (art. 299).

The Convention was opened for signature in Montego Bay, Jamaica, on December 10, 1982. However, because of its provisions on the activities in the international seabed area (the Area), it was not acceptable to industrialised States. In order to make the universal participation in the Convention possible, on 28 July 1994, the Agreement for the implementation of its Part XI was adopted in resolution 48/263 of the UN General Assembly; the Agreement and Part XI of the LOS Convention shall be interpreted and applied together as a single instrument (art. 2 of the Agreement). On 16 November 1994, the Convention entered into force, and as at 31 July 2000 there were 133 States Parties to the Convention (132 States and the European Community).

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Commentators rightly stress that the principle of compulsory resort to procedures entailing binding decisions is significantly restricted by articles 297 and 298, and that the scope of those limitations and optional exceptions is not sufficiently clear.3 The proliferation of judicial organs creates the problem of the choice of the procedure applicable to a certain dispute (case). Any State, when signing, ratifying or acceding to the Convention or at any time thereafter, is free to choose, by means of written declaration, one or more of those procedures. If the parties to a dispute (or one of them) have not expressly accepted any of the procedures mentioned in the Convention, or they have not accepted the same procedure, the dispute may be submitted only to arbitration, unless the parties otherwise agree (art. 287, para. 5). While the mentioned rules concerning the choice of procedure give priority to the arbitration tribunal, other relevant rules of the Convention point out ITLOS as the primary forum for dispute settlement under the LOS Convention. In respect of some categories of disputes, the Tribunal has priority over other procedures or even exclusive jurisdiction. This paper does not attempt a systematic overview of the rather complicated system of dispute settlement under the LOS Convention; it only seeks to shed some light upon one of the judicial institutions established under the Convention the International Tribunal for the Law of the Sea. We shall deal with its composition, its jurisdiction, access to the Tribunal and the applicable law. This analysis should make clearer the characteristics that distinguish this institution from the other three judicial procedures envisaged by the Convention.

2.

COMPOSITION

In addition to the ICJ, the Tribunal is the only mechanism provided for in article 287 of the Convention, which has a fixed membership. The arbitration tribunal and the special arbitration tribunals have to be constituted in every particular case submitted to them, preferably of members chosen from the lists of arbitrators and experts established in accordance with Annexes VII and VIII to the Convention. However, there are several differences between the establishment of the ICJ and ITLOS. Being the principal judicial organ of the United Nations, the members of the ICJ are elected by the UN General Assembly and the Security Council. On the other hand, as ITLOS is an independent judicial institution established in accordance with the

See: T. Treves, The Law of the Sea Tribunal: Its Status and Scope of Jurisdiction after November 16, 1994, 55 Zeitschrift fr auslndisches ffentliches Recht und Vlkerrecht, (1995), pp. 421-451, at pp. 42-46; Sh. Oda, Dispute Settlement Prospects in the Law of the Sea, 44 The International and Comparative Law Quarterly, (1995), pp. 863-872; A.E. Boyle, Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction, 46 The International and Comparative Law Quarterly, (1997), pp. 37-54, at pp. 42-46.

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LOS Convention and Annex VI thereto, its members are elected by the meetings of States Parties to the Convention. The difference between the two judicial bodies is reflected also in their financing. The budget of the ICJ is an integral part of the UN budget, while the expenses of the Tribunal are to be borne by the States Parties and by the International Seabed Authority (art. 19, para. 1 of Annex VI).4 Such a solution for the financing of ITLOS is due to the fact that its main activity is the settlement of disputes between the States Parties, while the functions of its Seabed Disputes Chamber are related to the activities under the control of the Seabed Authority. However, if an entity other than a State Party or the Authority is a party to a case submitted to the Tribunal it also has to contribute towards the expenses of the Tribunal. There are similarities, but also differences in the composition of the two bodies. The requirements concerning the moral character and recognized competence in international law (art. 2 of the ICJ Statute) have mutatis mutandis been taken over to the ITLOS Statute. Under article 2 of the Statute, the 21 independent members of the Tribunal have to be elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea (para. 1). It is not appropriate for a member of the Tribunal to try to evaluate whether the first 21 members, elected by the Fifth Meeting of States Parties to the LOS Convention on 1 August 1996, satisfy the mentioned conditions. However, some facts may be stated: a great majority of the elected judges participated in the Third United Nations Conference on the Law of the Sea (two of them were chairmen of the Main Committees, three were members of the Secretariat of the Conference, etc.) and in the Preparatory Commission for the International Seabed Authority and for the International Tribunal for the Law of the Sea (including its first President). A majority of them are renowned authors in the field of the law of the sea.5 A fear has been expressed respecting the fact that the nominees for ITLOS are required only to be persons of recognized competence in the field of the law of the sea and not in international law in general, as the law of the sea is an integral part of international law as a whole.6 Although it is difficult to determine when a person can be said to have recognized competence in international law, it is interesting to note that 12 of the present 21 members of the Tribunal were at one time or the other professors

See C.-A. Fleischhauer, The Relationship between the International Court of Justice and the Newly Created Law of the Sea Tribunal. Address given on 28 November 1996 on the occasion of a visit to the International Court of Justice of the Independent World Commission on Oceans. On the initial composition of the Tribunal more details in: A. Yankov, The International Tribunal for the Law of the Sea. Its place within the Dispute Settlement System of the UN Law of the Sea Convention. Presentation at the Deutsch-Bulgarische Gesellschaft, Hamburg, 20 February 1997, p. 11. Oda, op. cit., p. 864.

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of international law, and 7 are members/associate members of the Institute of International Law (Institut de Droit International). In addition to the specialisation of the members of the Tribunal in the law of the sea and the attractiveness of its procedure,7 there is another characteristic of the composition of the Tribunal which may prove to be relevant for States Parties from all different parts of the world. Article 2, paragraph 2 of its Statute provides that in the Tribunal as a whole the representation of the principal legal systems of the world and equitable geographical distribution shall be assured (the same requirements are stated also in respect of the selection of the members of the Seabed Disputes Chamber art. 35, para. 2 of Annex VI). There are two additional rules to the above principles: no two members of the Tribunal may be nationals of the same State and there shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations (art. 3). On the basis of these rules, the Fifth Meeting of States Parties (New York, 24 July to 2 August 1996) decided to distribute the 21 places in the Tribunal as follows: African group 5, Asian group 5, East European Group 3, Latin American 4 and West European and Other States group 4. Although there is no general agreement concerning the interpretation of the expression principal legal systems, and the criteria of equitable geographical distribution are vague, there could be no major objections to the distribution of the 21 places in ITLOS. It broadly corresponds to the number of States in the five relevant UN geographical groups, and to the number of States Parties at the time of the first elections to the Tribunal (100) coming from each of the regional groups.8 Although there may be disappointments in one or the other geographical group or among States belonging to a principal legal system, there are no such discrepancies in the composition of ITLOS as in the ICJ, where one-third of the judges (5 out of 15) are nationals of States belonging to the West European and Other States group. Such an overrepresentation of one region in that body continues, notwithstanding the increased number of new members of the United Nations (and Parties to the ICJ Statute) from other regions, and the Statutes provision which requires the representation of the main forms of civilization and of the principal legal systems of the world in the Court (art. 9 of the ICJ Statute).

3.

JURISDICTION AND ACCESS

The listing of four different means for binding settlement of disputes concerning the interpretation or application of the LOS Convention (art. 287) may leave the impression that the choice of States Parties depends exclusively upon their preference for one or

7 8

See: Fleischhauer, op. cit., p. 6. Boyle, op. cit., p. 50.

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the other of the mentioned courts or tribunals. That impression is only partially correct, as all these courts and tribunals do not have the same jurisdiction and therefore the States Parties are not completely free in the choice of the forum for their cases. The principle that a court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention... (art. 288, para. 1) has a very important exception. The ICJ, the arbitration tribunal and the special arbitration tribunals to be constituted in accordance with Annexes VII and VIII to the LOS Convention do not have jurisdiction over disputes with respect to activities in the Area (art. 187 and 188). Generally, the jurisdiction in respect of such disputes is given to the Seabed Disputes Chamber, formed within ITLOS. However, a limited category of such disputes those between States Parties concerning the interpretation or application of the Convention may, at the request of the parties to the dispute, be submitted either to one of the special chambers to be formed in the Tribunal, or, at the request of any party to the dispute, to an ad hoc chamber of the Seabed Disputes Chamber (art. 188, para. 1). The special rules concerning disputes over the interpretation or application of the provisions on the activities in the Area in the different chambers of ITLOS prove that the drafters of the LOS Convention wanted to exclude any other court or tribunal including the ICJ from hearing such disputes.9 A special characteristic of the procedure envisaged for disputes concerning seabed activities is the permission given to the party to submit disputes over the interpretation or application of a contract relating to the activities in the Area to binding commercial arbitration, unless the parties otherwise agree. However, a commercial arbitration tribunal to which the dispute is submitted shall have no jurisdiction to decide any question of interpretation of the LOS Convention. When the dispute also involves a question of the interpretation of the Conventions provisions on the activities in the Area, the question has to be referred to the Seabed Disputes Chamber for a ruling [art. 188, para. 2 (a)]. While the competence of the Seabed Disputes Chamber is limited only to seabed disputes, ITLOS is entitled to form other special chambers for dealing with particular categories of disputes. During its Second (Organisational) Session (3-28 February 1997), in addition to the Seabed Disputes Chamber, the Tribunal selected the members of the Chamber for Marine Environment Disputes and the Chamber for Fisheries Disputes. However, the creation of those two chambers does not detract from the full Tribunals jurisdiction in fisheries and environmental matters; a dispute shall be heard by one of those chambers only if the parties to the dispute so request (art. 15, para. 4 of Annex VI).

Fleischhauer is of the opinion that inter-State disputes concerning activities in the Area and involving interpretation or application of Part XI of the LOS Convention, by consensus between the parties may be brought to the ICJ; Fleischhauer, op. cit., p. 9.

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On the other hand, the special arbitration tribunals provided for in article 287, paragraph 1, are only entitled to deal with one or more of the categories of disputes indicated in Annex VIII: (1) fisheries; (2) protection and preservation of the marine environment; (3) marine scientific research; or (4) navigation, including pollution from vessels and by dumping. While in respect of the activities in the Area the Tribunal (its chambers) has exclusive jurisdiction, in two other instances it has priority over other courts and tribunals in some specific circumstances.10 Already at the beginning of this activity, the jurisdiction of ITLOS in these two situations was invoked in a dispute between Saint Vincent and the Grenadines and Guinea. As in both those cases a judicial body is required to act urgently, and in the absence of an agreement over the choice of a court or tribunal, the drafters of the Convention seem to have decided to resort to a pre-established body. They chose the Tribunal and not the ICJ, probably because of their expectation that the Rules of the Tribunal would enable the Tribunal to act with the required speed. In the case of prompt release of vessels and crews, an additional reason for choosing ITLOS was the fact that the application for release might be made not only by the flag State, but also on behalf of the flag State of the vessel (art. 292, para. 2). This means that private parties, ship-owners could be entrusted by States to act before the Tribunal, which was not possible before the ICJ.11 The Convention permits the coastal State to detain a foreign vessel in enforcing its laws and regulations concerning the living resources in the exclusive economic zone (art. 73, para. 1), and for violating the provisions on the protection and preservation of the marine environment (art. 220). However, detained vessels and their crews must be promptly released upon the posting of reasonable bond or other security [art. 73, para. 2; art. 226, para. 1 (b)]. If it is alleged that the detaining State has not complied with the provisions for the prompt release, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties. Failing such agreement within 10 days from the time of detention, the question of release from detention may be submitted to a court or tribunal accepted by the detaining State under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree (art. 292, para. 1).12 As Saint Vincent and the Grenadines and Guinea did not agree on the choice of a court or tribunal in respect of the request of the former for the release of its vessel and crew, this request was dealt with by ITLOS in the M/V Saiga case (Judgment of 4

10 11 12

On the jurisdiction of the Tribunal see: R. Wolfrum, Der Internationale Seegerichtshof in Hamburg, 44 Vereinte Nationen, (1996), pp. 205-210, at pp. 207-209. Treves, op. cit., pp. 430 at 432. A profound criticism of all the provisions on the prompt release of vessels in the LOS Convention, see in: Oda, op. cit., pp. 865-867.

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December 1997). For the same reason the Camouco case was decided by the Tribunal on 7 February 2000 (Panama v. France). The second case in which the Tribunal has compulsory jurisdiction is when a request for provisional measures, pending the Constitution of an arbitration tribunal to which a dispute is being submitted, is being made. If within two weeks from the date of the request for provisional measures the parties cannot agree on the court or tribunal which should decide on the provisional measures, the Tribunal or, with respect to activities in the Area, the Seabed Disputes Chamber, may prescribe, modify or revoke provisional measures. On the basis of these provisions, the Tribunal made its Order of 27 August 1999 in the Southern Bluefin Tuna cases (New Zealand v. Japan). The Tribunal and the Chamber may do so only if they consider that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. Once constituted, the tribunal to which the dispute has been submitted may modify, revoke or affirm the provisional measures decided upon by the Tribunal or the Chamber (art. 290, para. 5). Further restrictions concerning the use of different courts and tribunals are the result of their constitutional provisions or the provisions of the LOS Convention on their jurisdiction ratione personae. The LOS Convention offers the choice of the mentioned compulsory procedures entailing binding decisions to the States Parties (art. 287, para. 1). However, according to the Convention, States Parties are not only States, but also some other entities entitled to become Parties: associated States, non-self-governing territories and international organisations having competence over matters governed by the LOS Convention, including the competence to enter into treaties in respect of those matters (art. 1, para. 2 and art. 305). A territory not having the status of a State as well as international organisations could not be parties in cases before the ICJ, even if such disputes concern law of the sea matters. The jurisdiction of the ICJ is limited to disputes between States (art. 34, para. 1, of the Statute of the Court). That is why article 7, paragraph 1, of Annex IX to the LOS Convention, dealing with the participation of international organisations in the Convention, states that organisations are free to choose any of the means for the settlement of disputes referred to in article 287, except the International Court of Justice. International organisations as well as all other Parties to the Convention are entitled to bring all the disputes concerning the interpretation or application of the Convention or any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement, to all other procedures provided for in article 287: the Tribunal, the arbitration tribunal and special arbitration tribunals (art. 288, paras. 1 and 2).

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While all the States Parties to the LOS Convention have at least a restricted choice of procedures entailing binding decisions, other parties to the disputes envisaged by the Convention are limited to the Tribunal and its Chambers. As already mentioned, the Seabed Disputes Chamber (and in some cases other Chambers of ITLOS) has jurisdiction in disputes with respect to activities in the Area. In addition to States Parties, other parties may be included in such disputes: the International Seabed Authority and the Enterprise, State enterprises and natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals and sponsored by such States (art. 187). In addition to the access of the Tribunal to entities other than States Parties in cases concerning the activities in the Area, the Statute of the Tribunal opens the Tribunal to such entities in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case (art. 20). On the basis of such agreements the Tribunal may open to an even wider range of entities than the one envisaged in article 305 of the Convention, including, for example, other intergovernmental organisations than those referred to in article 305, paragraph 1 (f), or even non-governmental organisations active and competent in the field of the law of the sea. Such a possibility of extending the range of parties has not been provided for in the constitutional provisions of the arbitration tribunal and the special arbitration tribunals (Annexes VII and VIII to the LOS Convention). Judicial bodies referred to in the LOS Convention do not have only the contentious jurisdiction: advisory jurisdiction is also provided for. However, in the two instances where the Convention mentions advisory opinions, the only body entitled to deal with requests for such opinions is the Seabed Disputes Chamber of ITLOS. Article 191 of the Convention contains a general provision entrusting the Seabed Disputes Chamber with giving advisory opinions at the request of the Assembly or the Council of the Authority. They are entitled to request advisory opinions on legal questions arising within the scope of their activities. Article 159, paragraph 10, provides for a special procedure on the basis of which the Authority may ask the Seabed Disputes Chamber for an advisory opinion on the conformity with the Convention of a proposal before the Assembly on any matter. The only other possibility for seeking an advisory opinion is to be found in article 21 of the ITLOS Statute, which gives the Tribunal jurisdiction not only in respect of all disputes and all applications submitted to it in accordance with the Convention, but also in respect of all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal. The last quoted phrase is so broad that it does not exclude requests for advisory opinions by any State or other entity to the Tribunal itself or to its chambers. Thus, the Convention does not envisage advisory opinions either by other new bodies that may be constituted on the basis of its provisions (arbitration tribunal, special arbitra-

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tion tribunals) or by the ICJ the judicial organ which has given many important advisory opinions in different fields of international law. Notwithstanding that silence, taking into account the right of the ICJ to give advisory opinions on legal questions (art. 65 of the ICJ Statute), the Court should be considered as having the right to give advisory opinions also on legal questions related to the LOS Convention and the law of the sea in general to all those who are generally entitled to request such opinions from the ICJ (main UN bodies and the specialised agencies).13 In this discussion on the jurisdiction of different judicial bodies mentioned in the LOS Convention we have already been dealing with the jurisdiction ratione materiae as well as the jurisdiction ratione personae, as these two issues are closely linked. Yet, some additional remarks concerning the first are necessary. As already mentioned, all the courts and tribunals referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of the LOS Convention (art. 288, para. 1). As the Convention deals with the law of the sea, the courts and tribunals are entitled to deal with all disputes to which the rules of that part of international law, as codified in this Convention, are applicable. It goes without saying that this does not mean only disputes dealing exclusively with the seas and oceans. For example, disputes on the application of the Conventions provisions on anadromous stocks (art. 66) and catadromous species (art. 67) will fall within the jurisdiction of the courts and tribunals provided for in the LOS Convention even when they concern the treatment of those species in rivers. The same courts and tribunals will be entitled to hear and decide disputes on the implementation of the provisions on the freedom of transit of land-locked States (art. 125-132) even in cases when they concern only the implementation of the Convention in respect of the traffic through the land territory of transit States. Similarly, disputes concerning overflight of straits used for international navigation (art. 38), of the archipelagic waters (art. 53 and 54), of the exclusive economic zone (art. 58, para. 1) and of the high seas [art. 87, para. 1 (b)] are included. Paragraph 2 of article 288 leaves greater latitude to the law of the sea courts and tribunals. It provides for their jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention (emphasis added). International agreements envisaged in the quoted provision are not only those expressly mentioned in the provisions of the LOS Convention, but also other international agreements the content of which can be considered as being related to the Convention. So, for example, the courts and tribunals referred to in article 287 are not competent only in respect of international agreements on the protection and preservation of the marine environment mentioned in Part XII of the Convention, but also, for example,

13

See Treves, op. cit., p. 427.

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in respect of any agreement on the joint exploitation of the continental shelf, although such agreements are not mentioned in the Convention. Moreover, article 288, paragraph 2, does not refer only to international agreements dealing stricto sensu with the law of the sea, but to all international agreements related to the purposes (emphasis added) of the LOS Convention. Thus, for example, in order to protect and preserve the environment of a coastal area, States may deal in an agreement jointly with the coast and the coastal waters. Such an agreement is covered by the above mentioned provision, as is an international economic agreement relevant for the exploration and exploitation of the Area, but not expressly envisaged in Part XI or Annexes III and IV. An additional remark relating to the jurisdiction of ITLOS is required in respect of the already quoted article 21 of the Tribunals Statute. In addition to disputes and applications submitted to the Tribunal in accordance with the Convention, it mentions all matters specifically provided in any other agreement which confers jurisdiction to the Tribunal. The drafters of this provision have avoided the term international agreements used elsewhere in respect of the jurisdiction of the courts and tribunals (e.g., art. 288, para. 2), which means that the agreements referred to may not be international, i.e., they may be agreements concluded between entities which are not subjects of international law. The plausibility of such a conclusion is confirmed by the second part of article 21, where no restrictions are indicated concerning the matters provided for in such agreements. However, in our view, even such agreements should be related to the purposes of this Convention (art. 288, para. 2).14

4.

APPLICABLE LAW

Article 293 of the LOS Convention states as the general rule concerning the applicable law for all the courts and tribunals having jurisdiction according to article 287, paragraph 1:
A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.

As in the case of the Statute of the ICJ (art. 38, para. 2), another provision too often forgotten has been added to the above rule:

14

A. Boyle offers an even more extensive interpretation of article 21 of the ITLOS Statute: ... An agreement need neither be a treaty nor need it relate to the purposes of the Convention; Boyle, op. cit., p. 49.

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Paragraph 1 does not prejudice the power of the court or tribunal having jurisdiction under this section to decide a case ex aequo et bono, if the parties so agree (art. 293, para. 2).

This authorisation permits the parties to instruct the courts and tribunals to ignore international law. However, even in deciding ex aequo et bono the application of the peremptory norms of international law (jus cogens) cannot be excluded. Let us now return to the issue of the law applicable by the judicial organs having jurisdiction under the LOS Convention. All the courts and tribunals referred to in article 287, paragraph 1, including the Tribunal, the Seabed Disputes Chamber and all other of its chambers apply the Convention and other rules of international law not incompatible with this Convention (art. 293, para. 1). That is why the Statute of ITLOS refers to article 293 (art. 23 of Annex VI). As far as other rules of international law are concerned, the Convention itself often refers to international rules adopted for its implementation (e.g., agreements which may be concluded in furtherance of the general principles set forth in this Convention art. 237, para. 1). General, but not crystal clear, are instructions in this respect that States Parties have adopted in article 311, which deals with the relation of the LOS Convention to other conventions and international agreements concluded among themselves as well as between States Parties and third States. Some agreements related to the purposes of this Convention expressly conferring jurisdiction to the courts and tribunals referred to in article 287 have already been concluded. Such is, for example, the Agreement of 4 December 1995 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 straddling fish stocks and highly migratory fish stocks, and the 1996 Protocol to the Convention of 29 December 1972 on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (adopted on 7 November 1996). The Seabed Disputes Chamber (and its ad hoc chamber), because of its specific jurisdiction, shall apply additional rules:
(a) the rules, regulations and procedures of the Authority adopted in accordance with this Convention; and (b) the terms of contracts concerning activities in the Area in matters relating to those contracts (Annex VI, article 38).

The mentioned rules, regulations and procedures of the Authority shall deal with prospecting, exploration and exploitation in the Area and with related matters [art. 160, para. 2 (f)]. The law of the sea, as well as other parts of international law, deals with an everwidening range of issues. The comparison of the 1958 Geneva Conventions on the Law of the Sea with the 1982 LOS Convention proves that very clearly. In many of the new

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fields in which international law has only recently penetrated it is closely linked to national, internal law. That is why international judicial bodies in applying international law have to take into consideration also national law. In some fields, international rules are only in an initial, formative stage, while internal law has a long history and is well developed. The contents of the LOS Convention offer an abundance of examples in this sense: marine scientific research, transfer of technology and mining are rather new fields in international law, while some of them are regulated by a multitude of rules in national law. The close linkage with other branches of law is not a new phenomenon in the law of the sea. Issues such as the nationality of ships (art. 91) or the liability for the pollution of the marine environment (art. 235) offer adequate proof of the interdependence of the law of the sea (international law) with maritime law (internal, national law).

5.

FINAL REMARKS

The above sketchy remarks are based primarily on the LOS Convention, including the Statute of ITLOS, on the basis of which the Rules of the Tribunal were adopted on 28 October 1997. Dealing with the composition, jurisdiction, access and law applicable by the Tribunal, we were obliged to indicate the similarities as well as differences between ITLOS and the other courts and tribunals having jurisdiction under the LOS Convention. Yet, on the basis of those data we would not dare to engage in any predictions concerning the activities of ITLOS (or other courts or tribunals) in the future. It is too early to characterise the creation of ITLOS as a revolutionary step in the peaceful settlement of international disputes, but also to qualify its establishment as a great mistake.15 Throughout the twentieth century, arbitration has tried to play a role in the settlement of disputes between States, notwithstanding the existence of the Permanent Court of International Justice and later the ICJ. It is unnecessary to remind that arbitration tribunals have lately been particularly successful in respect of disputes dealing with the law of the sea, which have been dominant also in the work of the ICJ.16 The United Nations Charter has proclaimed the ICJ as the principal judicial organ of the United Nations (art. 92), but not the sole court in the international community. On the contrary, article 95 of the Charter reads:
Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.

15 16

Oda, op. cit., p. 864. Boyle, op. cit., pp. 40-41.

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Therefore, the idea of creating other tribunals for the law of the sea should not be considered as endangering the authority of the ICJ. On the contrary, having included the ICJ among the courts and tribunals having compulsory jurisdiction in respect of disputes concerning the interpretation or application of LOS Convention, UNCLOS III acted in accordance with article 36 of the ICJ Statute, as this is one of the ways in which the ICJ can be given compulsory jurisdiction, which it does not automatically have on the basis of its own Statute.17 However, such a complex treaty as the LOS Convention could not rely only on a court limited to disputes between States. The unavoidable variety of parties and some specific provisions of the Convention required the establishment also of other judicial mechanisms. Similar developments have taken place in other fields of international law, i.e., human rights, economic law, and humanitarian law. It is difficult to enumerate and evaluate all the reasons for the establishment of ITLOS. One of the participants in UNCLOS III and now a member of the Tribunal, Judge Gudmundur Eiriksson, in a very plausible way summarises the reasons for the establishment of ITLOS:
During the course of the negotiations of the Convention many threads were woven together to result in the Tribunal as we now find it. These included: the near passionate belief of many participants in the negotiations in the ideal of the peaceful settlement of disputes; the desire of important industrialized States for a secure system of conflict resolution in the face of new concepts in international law and institutions; the reluctance of certain States to make use of the International Court of Justice at The Hague; and the desire for a specialized organ to deal with deep seabed mining disputes.18

Notwithstanding the positive reactions of the majority of scholars over the establishment of ITLOS, some commentators have expressed dismay in respect of the creation of this (as well as other) new international judicial institutions.19 They argue that the multiplicity of judicial institutions and the fragmentation of international adjudication could result in an uneven practice. Although, it is impossible that all the existing courts and tribunals have identical views in respect of all the questions regulated by international law, multiplicity and specialisation of mechanisms have been a reality for some time and this is an inevitable development accompanying the progress of substantive international law.

17 18

19

Treves, op. cit., p. 429. G. Eiriksson, The Role of the International Tribunal for the Law of the Sea in the Peaceful Settlement of Disputes. Lecture given at the Research Centre for International Law, University of Cambridge, on 7 February 1997. Oda, op. cit., p. 864; G. Guillaume, La Cour Internationale de Justice. Quelques propositions concrtes loccasion du Cinquantenaire. Revue gnrale du droit international public (1996), pp. 321-333, at pp. 331-332.

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As respects ITLOS, even some members of the ICJ do not share such a negative opinion.20 And Shabtai Rosenne concludes his considerations in respect of the establishment of the Tribunal with this realistic evaluation:
There is no evidence to support the view that a multiplicity of international judicial institutions for the settlement of disputes seriously impairs the unity of jurisprudence (a difficult proposition at the best of times). The Convention requires ITLOS to perform tasks that are beyond the competence of the International Court under its present Statute. If only for that reason, the cautious observer will hesitate before crying redundant.21

20 21

Fleischhauer, op. cit., p. 11. Sh. Rosenne, Establishing the International Tribunal for the Law of the Sea. 89 American Journal of International Law, (1995), pp. 806-814, at p. 814.

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Chapter 19

RGLEMENT DU TRIBUNAL INTERNATIONAL DU DROIT DE LA MER QUESTIONS CHOISIES *

1.

INTRODUCTION

1. Le Tribunal international du droit de la mer (le Tribunal) est un des moyens pour le rglement des diffrends relatifs linterprtation ou lapplication de la Convention des Nations Unies sur le droit de la mer (la Convention) appliquant une procdure obligatoire aboutissant des dcisions obligatoires (article 287, paragraphe 1 de la Convention). Les rgles principales relatives sa constitution, ses comptences et son fonctionnement sont contenus dans la Convention elle-mme (surtout la partie XV) et dans son Statut (annexe VI la Convention). Larticle 16 du Statut prvoit que le Tribunal dtermine par un rglement le mode suivant lequel il exerce ses fonctions, et notamment sa procdure. 2. Lannexe I lActe final de la troisime Confrence des Nations Unies sur le droit de la mer contient la Rsolution I intitule Cration de la Commission prparatoire de lAutorit internationale des fonds marins et du Tribunal international du droit de la mer. Sur la base du paragraphe 10 de cette Rsolution, la Commission prparatoire a labor, avec laide de son Secrtariat, le Texte final du projet de Rglement du Tribunal.1 Le projet a t tabli en tenant compte surtout du Rglement de la Cour internationale de Justice (CIJ). Nonobstant le fait que la Commission prparatoire avait cr une commission spciale charge de prparer le projet des documents ncessaires pour lentre en fonction du Tribunal, le texte final du projet de Rglement a ncessit une adaptation considrable des comptences et spcificits du Tribunal. Mme la version finale du projet suivait strictement le Rglement de la CIJ, en ne tenant pas suffisamment compte de diffrences entre la Cour et la Tribunal en ce qui concerne leurs comptences ratione personae et ratione materiae. 3. Ds sa constitution en octobre 1996, la tche principale du Tribunal a t dlaborer le texte dfinitif de son Rglement. Comme pendant la premire anne le Tribunal sest runi seulement pour des courtes sessions administratives, et que la mise au point du Rglement sest montre une tche trs complexe, le Rglement ne fut dfinitivement

*
1

Publi pour la premire fois dans Espaces et ressources maritimes, no. 12, 1998.
Document LOS/PCN/SCN.4/WP.2/Rev.2.

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adopt que le 28 octobre 1997. En mme temps, le Tribunal a adopt deux autres documents essentiels pour son futur travail: les Lignes directrices concernant la prparation et la prsentation des affaires dont le Tribunal est saisi (28 octobre 1997), et la Rsolution sur la pratique interne du Tribunal en matire judiciaire (31 octobre 1997).2 4. Dans ce bref article nous ne pouvons pas prsenter le Rglement du Tribunal, un texte long de 138 articles.3 Nous allons nous occuper seulement de quelques dispositions du Rglement qui attirent lattention cause de leurs relations spcifiques avec les rgles de la Convention (et du Statut du Tribunal), cause de leurs diffrences en comparaison avec les dispositions analogues du Rglement de la CIJ, ou encore cause de leur application et interprtation lors des premiers cas traits par le Tribunal.

2.

MESURES CONSERVATOIRES

5. Larticle 290 de la Convention contient les dispositions gnrales concernant les mesures conservatoires applicables toutes les cours et tous les tribunaux reprsentant des procdures obligatoires aboutissant des dcisions obligatoires daprs la section 2 de la partie XV. Comme une de ces procdures celle de la Cour internationale de Justice possde ses propres rgles relatives aux mesures conservatoires, il est intressant de noter certaines diffrences entre larticle 290 et les dispositions pertinentes du Statut et du Rglement de la Cour. Mais, la vraie signification de diffrences entre les deux juridictions ne peut pas tre dcouverte par la simple comparaison de leurs textes de base. Leur application nous montre que les diffrences ne sont pas si grandes quon pourrait limaginer sur la base de dispositions applicables. La Cour applique larticle 41 de son Statut, ainsi que les articles 73 78 de son Rglement, propos de diffrends touchant nimporte quelle partie du droit international. Cependant, en ce qui concerne les diffrends propos de linterprtation ou de lapplication de la Convention sur le droit de la mer, et dautres diffrends quelle pourrait connatre sur la base dautres accords internationaux se rapportant aux buts de la Convention (article 288, paragraphe 2), larticle 290, tant lex specialis en ce qui concerne les diffrends dans la matire du droit de la mer, devrait tre appliqu mme par la Cour.4

2 3

Les trois documents seront prochainement publis chez Kluwer Law International, dans le volume 1 de la Collection Tribunal international du droit de la mer, Textes de base. Pour une revue des problmes et solutions principales du Rglement, voir: T. TREVES, The Procedure Before the International Tribunal for the Law of the Sea: The Rules of the Tribunal and Related Documents, Leiden Journal of International Law, Vol. 11, 1998, pp. 565-594; du mme auteur, voir aussi Ann. Fr. de Droit international, 1997, pp. 341-367. R. WOLFRUM, Provisional Measures of the International Tribunal for the Law of the Sea, Indian Journal of International Law, vol. 37, 1997, pp. 420-421.

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6. Daprs larticle 41 du Statut, la Cour a le pouvoir dindiquer .... quelles mesures conservatoires du droit de chacun doivent tre prises titre provisoire (paragraphe 1) [les italiques sont de nous]. Dun autre ct, la Convention autorise toutes les cours et tous les tribunaux prescrire toutes mesures conservatoires [les italiques sont de nous] juges appropries pour prserver les droits respectifs des parties en litige ou pour empcher que le milieu marin ne subisse des dommages graves en attendant la dcision dfinitive (article 290, paragraphe 1).5 La consquence logique du caractre obligatoire des mesures conservatoires prsentes sur la base du paragraphe 1 est lobligation contenue au paragraphe 6 du mme article et qui se lit comme suit:
Les parties au diffrend se conforment sans retard toutes mesures conservatoires prescrites en vertu du prsent article.

Cette obligation est beaucoup plus claire que celle contenue au paragraphe 1 de larticle 41 du Statut de la CIJ. Toutefois, tant lorgane judiciaire principal des Nations Unies (article 92 de la Charte), la Cour notifie immdiatement lindication des mesures conservatoires non seulement aux parties au diffrend, mais aussi au Conseil de Scurit (article 41, paragraphe 2 du Statut, et article 77 du Rglement de la CIJ). 7. Une diffrence existe aussi concernant les rapports que doivent faire les parties sur les mesures conservatoires adoptes. Daprs larticle 78 de son Rglement, la CIJ peut demander aux parties des renseignements sur toutes questions relatives la mise en uvre de mesures conservatoires indiques par elle [les italiques sont de nous]. Dun autre ct, cest dj larticle 95 du Rglement, et non une dcision ultrieure du Tribunal, qui oblige les parties prsenter des rapports:
1. Chaque partie informe le Tribunal au plus tt des dispositions quelle a prises pour mettre en uvre les mesures conservatoires prescrites par le Tribunal. En particulier, chaque partie prsente un rapport initial sur les dispositions quelle a prises ou quelle se propose de prendre pour se conformer sans retard aux mesures prescrites. 2. Le Tribunal peut demander aux parties un complment dinformations concernant toutes questions relatives la mise en uvre des mesures conservatoires prescrites par lui.

8. La pratique de la CIJ et la premire ordonnance du Tribunal sur des mesures conservatoires montrent que la diffrence entre la nature juridique des mesures conservatoires dcides par les deux juridictions nest pas du tout claire.

Tribunal international du droit de la mer, Anne 1998, Affaire du navire Saiga (No. 2) (Saint-Vincent-et-les Grenadines c. La Guine), Demande en prescription de mesures conservatoires. Ordonnance du 11 mars 1998, Opinion individuelle de M. Laing, Juge, par. 4.

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La terminologie utilise larticle 41, paragraphe 1, du Statut de la Cour a caus une opposition de vues concernant lexistence dune vraie obligation des parties de se conformer aux mesures indiques par la Cour.6 Cette incertitude est confirme dune manire spcifique aussi dans les mesures conservatoires indiques rcemment par la CIJ dans lAffaire relative la Convention de Vienne sur les relations consulaires entre lAllemagne et les tats-Unis dAmrique. Dans lordonnance du 3 mars 1999, dont le texte anglais fait foi, la Cour a dcid lunanimit:
The United States of America should take all measures at its disposal to ensure that Walter LeGrand is not executed pending the final decision in these proceedings... [les italiques sont de nous].7

Un shall au lieu de should aurait t particulirement indiqu, parce quil sagissait de lexcution dun tre humain. Daprs ce texte anglais, on sattendrait ce que le texte franais dise que [les Etats-Unis devraient] prendre toutes les mesures dont ils disposent... [les italiques sont de nous]. On est surpris que dans le texte franais, la Cour dise que les Etats-Unis doivent prendre toutes les mesures dont ils disposent.... [les italiques sont de nous].8 9. Le Tribunal international du droit de la mer lui aussi na pas appliqu dune manire stricte les rgles daprs lesquelles il prescrit des mesures conservatoires. Dans lAffaire du navire Saiga (No. 2) il a prescrit une mesure conservatoire, mais il en a en outre recommand une autre. Au paragraphe 52 de son ordonnance du 11 mars 1998, il a prescrit que la Guine doit sabstenir de prendre ou dexcuter toute mesure judiciaire ou administrative lencontre du navire Saiga et de son quipage en rapport avec les vnements qui ont conduit larraisonnement et limmobilisation du navire, le 28 octobre 1997. Mais il a galement recommand que les parties cherchent parvenir un arrangement provisoire en vue de ne pas aggraver ou tendre le diffrend soumis au Tribunal.9 10. Pour quune cour (ou un tribunal) puisse prescrire des mesures conservatoires daprs larticle 290 de la Convention, il faut quelle considre prima facie avoir comptence dans le diffrend dont elle est saisie (paragraphe 1). Bien que la mme condition ne soit pas expressment mentionne dans les dispositions pertinentes de la CIJ, celle-ci a rcemment dit dune manire tout fait claire quelle applique le mme principe:

6 7 8 9

WOLFRUM, op. cit., pp. 432-433; TREVES, op. cit., p. 582. Affaire relative la Convention de Vienne sur les relations consulaires (Allemagne c. tats-Unis dAmrique), Demande en indication de mesures conservatoires, Ordonnance du 3 mars 1999, par 29I(a). Ibid. Note 5, par. 52.1. et 2.; voir aussi la dclaration de M. Vukas, Juge, jointe lordonnance.

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13. Considrant quen prsence dune demande en indication de mesures conservatoires, la Cour... ne peut cependant indiquer ces mesures que si les dispositions invoques par le demandeur semblent prima facie constituer une base sur laquelle la comptence de la Cour pourrait tre fonde.

11. Il y a une diffrence entre la CIJ et le Tribunal qui est relative aux motifs pour lesquels des mesures conservatoires peuvent tre prescrites par chacune de ces deux juridictions. Comme nous lavons dj mentionn, la raison pour la prescription de mesures conservatoires par le Tribunal nest pas seulement la prservation des droits respectifs des parties au litige, comme la CIJ, mais aussi la prvention de dommages graves du milieu marin (article 290, paragraphe 1). En vue de cette seconde raison, qui nest pas toujours lie aux droits et intrts des parties au litige, il aurait t naturel dautoriser le Tribunal prescrire des mesures conservatoires non seulement sur demande dune des parties mais aussi doffice (proprio motu). Mais la solution est inverse: le Tribunal nest autoris agir qu la demande dune partie au diffrend (article 290, paragraphe 3), tandis que la CIJ peut indiquer des mesures conservatoires tant sur demande que doffice (article 75, paragraphe 1 de son Rglement). Toutefois, on trouve une correction de cette solution illogique au paragraphe 5 de larticle 89 du Rglement. Lorsque est demand au Tribunal de prescrire des mesures conservatoires, il peut prescrire des mesures totalement ou partiellement diffrentes de celles qui sont sollicites. Cette disposition est formule sur la base du paragraphe 2 de larticle 75 du Rglement de la CIJ.

3.

EXCEPTIONS PRELIMINAIRES

12. Il est apparent que les diffrences entre les rglements de la CIJ et du Tribunal concernant les exceptions prliminaires dcoulent particulirement du dsir du Tribunal de conduire sa procdure sans retard inutile (article 29 de son Statut).10 Dans ce sens, larticle 97, paragraphe 1, du Rglement se lit comme suit:
Toute exception la comptence du Tribunal ou la recevabilit de la requte ou toute autre exception sur laquelle une dcision est demande avant que la procdure sur le fond se poursuive, doit tre prsente par crit 90 jours au plus tard aprs lintroduction de linstance.

Ds rception par le Greffe de lacte introductif de lexception, la procdure sur le fond est suspendue et le Tribunal fixe un dlai qui ne dpasse pas 60 jours, dans lequel la partie adverse peut prsenter ses observations et conclusions crites. Un nouveau dlai

10

TREVES, op. cit., p. 575.

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19 RGLEMENT DU TIDM

ne dpassant pas 60 jours compter de la rception de ces observations et conclusions est fix, dans lequel la partie qui soulve lexception peut prsenter ses observations crites en rponse. Contrairement ce dlai fixe de larticle 97 paragraphe 1, le Rglement de la Cour internationale de Justice lie les dlais pour prsenter des exceptions la comptence de la Cour ou la recevabilit de la requte ou tout autre exception au dlai fix pour le dpt du contre-mmoire, puisque toute exception souleve par une partie autre que le dfendeur doit tre dpose dans les dlais fixs pour le dpt de la premire pice de procdure manant de cette partie (article 79, paragraphe 1). Cette rgle a t svrement critique parce quelle permet au dfendeur dattendre la dernire minute pour prsenter des objections, puis, si son exception nest pas retenue, dobtenir un nouveau dlai pour prsenter son contre-mmoire. Ceci est la double consquence du paragraphe 3 de larticle 79 du Rglement de la Cour, daprs lequel la rception de lacte introductif de lexception suspend la procdure sur le fond et du paragraphe 7 du mme article, qui prvoit que si la Cour rejette lexception ou dclare quelle na pas un caractre exclusivement prliminaire, elle fixe les dlais pour la suite de la procdure. 13. Toutefois le Tribunal a recopi le paragraphe 8 de larticle 79 du Statut de la Cour, qui permet aux parties de se mettre daccord pour que les dlais fixs par le Rglement ne sappliquent pas. Le paragraphe 7 de larticle 97 du Rglement du Tribunal se lit en effet comme suit:
Le Tribunal donne effet tout accord intervenu entre les parties et tendant ce quune exception souleve en vertu du paragraphe 1 soit tranche lors de lexamen au fond.

Dans laffaire du navire Saiga (n 2), actuellement devant le Tribunal, nexistait pas, lors de la saisine de celui-ci, laccord au sens de larticle 97, paragraphe 7. Nanmoins la Guine a soulev trois exceptions la recevabilit des demandes de Saint-Vincent-et-les Grenadines trs postrieurement dans son contre-mmoire du 18 septembre 1998.11 Elle stait en effet mis daccord avec Saint-Vincent-et-les Grenadines successivement le 26 dcembre 1997 de porter le diffrend devant un tribunal arbitral puis le 20 fvrier 1998, de remplacer le tribunal arbitral par le Tribunal international du droit de la mer. Laccord du 20 fvrier mentionne la possibilit dune exception la comptence du Tribunal, mais pas dune exception la recevabilit de la requte. Donc, le Tribunal devra statuer si la Guine est forclose soulever des objections la recevabilit des demandes de Saint-Vincent-et-les Grenadines, objections prsentes

11

Les objections la recevabilit sont relatives la nationalit du Saiga, au non-puisement des recours internes et enfin la nationalit des victimes pour lesquelles des demandes dindemnisation sont prsentes par Saint-Vincent-et-les Grenadines.

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neuf mois aprs lintroduction de linstance. Les arguments contre lapplication du paragraphe 1 de larticle 97 se basent sur le fait que la priode aprs la conclusion de laccord de dcembre 1997 a t pleine dvnements qui ont influenc la dcision de la Guine de formuler ces exceptions. Elle a eu dabord des difficults avec son devoir de se conformer la dcision du Tribunal concernant la mainleve du navire Saiga; puis elle a t engage dans la procdure concernant la prescription de mesures conservatoires devant le Tribunal; elle a eu enfin des problmes internes pour organiser sa reprsentation devant le Tribunal du droit de la mer. Pendant tout ce temps, la Guine a dcouvert des faits nouveaux qui ont influenc sa dcision de prsenter des exceptions la recevabilit de la requte de Saint-Vincent-et-les-Grenadines.

4.

AVIS CONSULTATIFS

14. En ce qui concerne les avis consultatifs, la Convention sur le droit de la mer suit lexemple de la Charte des Nations Unies avec toutefois des diffrences considrables. Le Tribunal du droit de la mer, comme aussi la Cour internat