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High Seas Governance: Gaps and Challenges. Edited by Robert C. Beckman, Millicent McCreath, J. Ashley Roach, and Zhen Sun. Leiden/Boston: Brill Nijhoff, 2018. Pp. xvii, 318. Index.

Published online by Cambridge University Press:  20 October 2020

Bernard H. Oxman
Bernard H. Oxman*
Affiliation:
University of Miami School of Law
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American Journal of International Law , Volume 114 , Issue 4 , October 2020 , pp. 796 - 802
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Copyright © 2020 by The American Society of International Law

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References

1 Nilüfer Oral, Jurisdiction and Control Over Activities by Non-state Entities on the High Seas; Karen N. Scott, Mind the Gap: Marine Geoengineering and the Law of the Sea; Youna Lyons, Identifying Sensitive Marine Areas in the High Seas: A Review of the Scientific Criteria Adopted Under International Law; Aldo Chircop, The Use of IMO Instruments for Marine Conservation on the High Seas; Robin Warner, Conservation and Management of Marine Living Resources Beyond National Jurisdiction: Filling the Gaps; Günther Handl, High Seas Governance Gaps: International Accountability for Nuclear Pollution; Nicholas Gaskell, Liability and Compensation Regimes: Pollution of the High Seas; Erik Røsæg, Marine Pollution Preparedness, Response and Cooperation in the Arctic High Seas. The introduction comments on the problem of plastic debris in the oceans (pp. 3–4).

2 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 3 [hereinafter UNCLOS]; see A Constitution for the Oceans, Remarks by Tommy T.B. Koh, President of the Third United Nations Conference on the Law of the Sea (Dec. 1982), available at https://www.un.org/Depts/los/convention_agreements/texts/koh_english.pdf.

3 GA Res. 72/249, paras. 1–2 (Jan. 19, 2018). See Symposium, Governing High Seas Biodiversity, 112 AJIL Unbound 118 (2018).

4 UNCLOS, supra note 2. Article 86 applies the provisions of Part VII (High Seas) “to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.” It then refers to Article 58, which applies the non-fisheries provisions of Part VII to the EEZ as well: in its first paragraph, “the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms,” and in its second paragraph, “Articles 88 to 115 . . . in so far as they are not incompatible with” Part V (EEZ). The reasons for this approach include ensuring that the provision concerning the high seas in Article 12 of the Convention on International Civil Aviation continues to apply to all areas beyond the territorial sea.

5 Living resources pay no heed, however. See UNCLOS, supra note 2, Arts. 63(2), 64, 66–67, 116; Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Aug. 4, 1995, TIAS 01-1211, 2167 UNTS 3.

6 UNCLOS, supra note 2, Arts. 58(1), 86–87.

7 Id. Art. 76. “[T]he legal regime of the continental shelf has always coexisted with another legal regime in the same area. Initially that other regime was that of the high seas and the other States concerned were those exercising high seas freedoms.” Delimitation of the Maritime Boundary in the Bay of Bengal (Bangl./Myan.), Case No. 16, Judgment, 2012 ITLOS Rep. 4, para. 475 (Mar. 14).

8 UNCLOS, supra note 2, Art. 194, para. 5.

9 Id. Art. 192.

10 UNCLOS is not completely silent on liability. See id. Arts. 28(2), 106, 113, 139(2), 174(4), 187(e), 232, 235, 263, 304; Ann. III, Arts. 4(4), 11(3), 22; Ann. IV, Arts. 2–3; Ann. IX, Art. 6.

11 Eberhard Deutsch Professor of Public International Law, Tulane University School of Law.

12 Senior research fellow, Ocean Law and Policy Programme, National University of Singapore Centre for International Law.

13 Revised Draft Text of an Agreement Under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, Arts. 1(3), 14–21, Ann. I, Nov. 18, 2019, UN Doc. A/CONF.232/2020/3 (hereinafter BBNJ Draft), at https://undocs.org/en/a/conf.232/2020/3.

14 Professor, Dalhousie University Schulich School of Law.

15 Professor, University of Queensland TC Beirne School of Law.

16 Professor, University of Oslo.

17 Dr. Oral was recently appointed Director of the Centre for International Law of the National University of Singapore, and is a member of the International Law Commission.

18 UNCLOS is not exclusively state-centric. It contains extensive protections for individuals. See, e.g., UNCLOS, supra note 2, Arts. 73, 97–99, 105, 225–26, 228, 230–32, 235(2), 263; Ann. III, Art. 22. And against pirates. Id. Art. 105. With respect to deep seabed mining, it provides for conferring rights and duties directly on the private miner, including “the exclusive right to explore for and exploit the specified categories of resources in the area covered by” the miner's contract with the International Seabed Authority. Id., Ann. III, Art. 3, paras. 4–5.

19 There is however some significant specificity. With respect to mining in the international seabed “Area,” UNCLOS places supervisory obligations on the sponsoring state. See UNCLOS, supra note 2, Art. 139; Ann. III, Art. 4, para. 4; Responsibilities and Obligations of States with Respect to Activities in the Area, Case No. 17, Advisory Opinion, 2011 ITLOS Rep. 10, paras. 72–163 (Seabed Disputes Chamber Feb. 1). UNCLOS also contains references to a state of registry of an installation. UNCLOS, supra note 2, Arts. 109, 262. And it accords the coastal state “exclusive jurisdiction” over artificial islands and most installations and structures in the exclusive economic zone and on the continental shelf. Id. Arts. 60(2), 80.

20 BBNJ Draft, supra note 13, Art. 1(2).

21 E.g., UNCLOS, supra note 2, Art. 97, para. 1.

22 In the context of a readable essay of limited length, the author prudently resists the temptation to delve more deeply into the complexities of corporate organization and inquire whether the requisite link here should be formal, i.e. the place of incorporation or siege social of the specific entity engaged in the activity in question. The approach of UNCLOS with respect to ships and aircraft is largely formal—flag states and states of registry. But its approach with respect to sponsoring deep seabed mining is qualified. Each mining applicant “shall be sponsored by the State Party of which it is a national . . . unless the applicant is effectively controlled by another State Party or its nationals, in which event both States Parties shall sponsor the application.” Id., Ann. III, Art. 4, para. 3.

23 UNCLOS Article 79 confers a right on the coastal state to take reasonable measures for the prevention, reduction, and control of pollution from pipelines on its continental shelf and to consent to the delineation of their course. It also contains a savings clause regarding “the right of the coastal State to establish conditions for cables or pipelines entering its territory or territorial sea, or its jurisdiction over cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction.”

24 Professor, University of Canterbury School of Law.

25 UNCLOS drafters were aware of simultaneous work regarding weather modification. See Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, May 18, 1977, 31 UST 333, 1108 UNTS 151.

26 Bostock v. Clayton Cty., 590 U.S. ___ (Slip. Op. at 2) (2020).

27 See UNCLOS, supra note 2, Art. 81.

28 The term “deliberate disposal of wastes or other matter” in the definition of “dumping” appears broad enough to include CO2. See id. Art. 1(1)(5)(a)(i); Report of the Twenty-Second Meeting of the Scientific Group, para. 11.15, IMO Doc. LC/SC 22/13 (June 10, 1999) (“fossil fuel derived CO2 is an industrial waste”). While fossil fuel derived CO2, if not captured directly, will mingle with CO2 of natural origin in the air, mitigation efforts are presumably directed to the quantity of fossil fuel derived CO2. The question of whether increasing the sea's absorption of CO2 is pollution by dumping is not necessarily limited to fertilization of the sea by dispersal of micro-nutrients such as iron (see p. 46).

29 See Bernard H. Oxman, The Principle of Due Regard, in The Contribution of the International Tribunal for the Law of the Sea to the Rule of Law: 1996–2016, at 108 (ITLOS ed. 2017).

30 See UNCLOS, supra note 2, Art. 1, para. 1(4).

31 See id. Art. 192.

32 There is accordingly doubt regarding the Protocol's incorporation by reference under UNCLOS Article 210, paragraph 6 (p. 50).

33 Professor and Deputy Director, Australian National Centre for Ocean Resources and Security, University of Wollongong.

34 The analysis might benefit from consideration of the role, in promoting such accountability, of the dispute settlement provisions of UNCLOS and its 1995 Implementation Agreement, and relevant cases thereunder. See Request for Advisory Opinion Submitted by the Sub-regional Fisheries Commission, Case No. 21, Advisory Opinion, 2015 ITLOS Rep. 4 (Apr. 2); The South China Sea Arbitration (Phil. v. China), PCA Case No. 2013-19, Award, paras. 950–93 (July 12, 2016) (footnote added).

35 See supra note 5.

36 One of the shortcomings cited is, “Only those member states bound by an RFMO agreement are required to apply the conservation and management measures” (p. 186). It is not clear how this takes into account what we are told on the previous page: “Article 8(4) of the [1995 UNCLOS Implementation Agreement, supra note 5] provides that only those states that agree to implement conservation and managements measures established by RFMOs with regard to highly migratory and straddling stocks shall have access to the fishery resources to which those measures apply” (p. 185).