Law of the Sea and Maritime Law

The Ambiguity Of “Scientific Purposes” In The Whaling In The Antarctic Case

/ Gnanavi Gummadi / Leave a comment
 https://www.newscientist.com/article/2208394-japans-return-to-commercial-whaling-has-no-economic-or-cultural-case/

Though science and law might seem to be two different fields, there is nevertheless interaction between the two. The Whaling Case is an example of such interaction. The judgement rendered on 31 March 2014 by the International Court of Justice (“the court”) on the Whaling in the Antarctic Case (Australia v Japan; New Zealand intervening) raises the issue of scientific or technical matters in the proceedings before the court. In some instances, therefore, judges must analyse scientific evidence to reach a legal decision. This article is an attempt to understand how the court in the Whaling Case dealt with the science at the heart of the case. Specifically, the article tries to understand the method by which the court addressed the question of what “scientific purposes” could mean with regards to Japanese Whale Research Program under Special Permit in the Antarctic (“JARPA”) II. Under JARPA II, Japan’s purported research objective was to gather scientific data using lethal and non-lethal methods to institute a management regime for the sustainable usage of whale resources. In order to do so, the whales were killed using an explosive harpoon and their stomachs were opened and investigated to measure the quantity and the type of marine animals that they had eaten. Subsequently, the whales were sold and eaten.

Whaling “for the purposes of scientific research” is permitted by Article VIII, paragraph 1, of the International Convention for the Regulation of Whaling. The term “scientific research” has not been defined in the treaty. The main question before the court in the Whaling Case was whether the whaling activities under JARPA II by Japan were for “scientific research” or for other purposes, specifically commercial whaling. Thus, the court called on experts to help it to answer this question.

Relying on the expert opinion, the court did not find it necessary to provide its own definition of “scientific research”. While rejecting the four criteria for adjudging “scientific research” given by the Australian expert, the court also failed to explain “scientific research” and the grounds for its rejection (see para 74 here). The understanding of the term “scientific research” cannot merely depend on a State’s perception. Thus, the court has missed an opportunity to define “science research” and set a precedent for future cases.

As pointed out in the dissenting opinion by Judge Yusuf (see para 29 here), the court lacked a beginning point, i.e., the definition of “scientific research”. Consequently, the court, in its adoption of the two-step process for reviewing JARPA II, reached a contradictory position. The court stated that it would first review if the programme involves scientific research and if the method of scientific research used helped Japan in achieving the objectives of JARPA II. However, this two-step process led the court to a contradictory position – how can activities which the court found to be “scientific research” be carried out under special permits granted “not for purposes of scientific research”? (also see para 227 here).

While the court concluded that Japan’s hunting of whales was not for “scientific purposes”, it was careful not to go into the question of the actual purpose of Japan’s whale killing. It also did not address whether JARPA II was being utilised for commercial whaling in the guise of “scientific research”. 

On the one hand, it could be argued that the final decision of the court was correct, even if the court had to use convoluted reasoning in finding that the special permits under JARPA II did not fall within the provisions of the Whaling Convention. The court was nonetheless wrong in one facet of its decision. The court should have closed the possible loophole in the law by defining “scientific research”, thereby curbing future litigation on the matter. The implications of such a legal gap might allow countries like Japan with interest in commercial whaling to use “scientific research” dishonestly to mask their interests.

It is disturbing that intelligent and significant marine animals were killed in such a gruesome manner. The conclusion reached by the court pleases those who favour permitting the whales to live freely in their habitat.

Go On! Rule of Law for Oceans, 4-5 November 2019

/ Cecilia Marcela Bailliet / Leave a comment

Conference in Oslo, Norway: Is law fit for purpose to protect the oceans against increasing pressures and demands? This two-day conference aims at analyzing new trends in the law of the sea, international environmental law, and related fields of law, and discussions related to the effectiveness of certain tools and mechanisms.

The Research Group on International Law and Governance (University of Oslo, Law Faculty) and the Norwegian Institute for Water Research (NIVA) organize this conference to advance discussions on the gaps and challenges in law related to the protection of oceans, and to bring forward novel legal approaches and solutions.  

The oceans are under increasing pressure from climate change, (micro)plastic pollution, loss of biodiversity, habitat destruction, unsustainable use, to name but a few, which all adversely affect the resilience of our oceans.  UN Sustainable Development Goal 14 specifically requires us to conserve and sustainably use the oceans, seas and marine resources. Key to sustainable ocean governance is the understanding of ecosystem functioning and the appreciation of interactions and interconnections among marine ecosystems, land and sea, oceans and climate, and interactions between marine and other types of ecosystems. Changes in the ecosystem functioning and resilience often have consequences far beyond in time and geographical scope and require robust but flexible and comprehensive regulatory solutions and approaches.

International law, including the UN Convention on the Law of the Sea and the Convention on Biological Diversity, provides for a framework governing States’ rights and obligations with respect to the use of oceans and their resources, protection of the environment and biodiversity as well as responsibility for the damage caused to the oceans arising from unlawful activities of different actors. Regional agreements such as OSPAR and HELCOM have similar purposes for regional seas. National legal systems also play a crucial role in the implementation of international and regional obligations. The legal system is fragmented and comprehensive, but is the law ripe for protecting oceans in the face of increasing environmental challenges and human demands? Are legal frameworks effective, strong, and flexible enough to address new challenges and pressures in light of advanced scientific knowledge and understanding of oceans? This conference aims to discuss and reflect on how we could strengthen the rule of law for Oceans.

Where can existing laws evolve, adapt and improve? And where do we have to think afresh? Which innovative approaches and mechanisms are being adopted or under discussion and what could be their advantages?

Please send your abstract (max 300 words) and a short resume to Professor Alla Pozdnakova no later than 15th August 2019. You will be notified by 1st September 2019. Full link to conference call: here

Please mark your email with “Abstract for the Ocean Conference Oslo”. Abstracts submitted after the deadline will not be considered.

The organizing committee,

Alla Pozdnakova                                Froukje Maria Platjouw

Alla.pozdnakova@jus.uio.no               fmp@niva.no

Faculty of Law, University of Oslo       Faculty of Law, University of Oslo,  Norwegian Institute for Water Research            

Go on! Global Migration Law @ ASIL

/ IntLawGrrls / Leave a comment

bio_Thomas_Chantal_ct343For those interested in global migration law, we hope you’ll join the Migration Law Interest Group for a works-in-progress session at the American Society of International Law’s Annual Meeting on Friday, April 14 from 11 am to 12:30 pm in the Yosemite Room. (It is listed in the program as the Migration Law IG business meeting.) We have a terrific line-up:

  • Chantal Thomas (pictured above), Chair
  • Tendayi Achiume (pictured below), International Law and Xenophobic Anxiety
  • Itamar Mann, Maritime Legal Black Holes: Migration as Extra-legality
  • Ralph Wilde, Unintended consequences: Do progressive legal developments protecting forced migrants undermine protection in other areas?

The tendayipapers are available on a password-protected website. Please e-mail Joel Houkom at joel.houkom@temple.edu to access the site.

We hope that you will join us, and please spread the word widely!

Write On! Call for Papers: Gender Implications of the Law of the Sea

/ Osazenoriuwa Ebose / Leave a comment

Exploring the Human Element of the Oceans: The Gender Implications of the Law of the Sea

25-26 May 2017
Università degli Studi di Milano-Bicocca, Milano, Italy

Call for Papers

The School of Law, University of Milano-Bicocca is organising a two-days conference on the gender implications of the law of the sea, to be held in Milan (Italy) on 25-26 May 2017.

Concept

The conference stems from an empirical consideration: international law of the sea, including maritime law, has been traditionally silent about the role played by women at sea, and this is very much the case still today. Regulation is scant and scholarly research almost non-existent. The growing interest of scholars in the analysis of law of the sea and maritime law from a more human-oriented approach, in an attempt to integrate the human element into the law of the sea rules, has led to multiple interconnections between these two fields and international human rights law. However, none of these efforts have broached the impact of gender and women at sea. Yet, the issue is far from idle: women are increasingly accessing maritime careers and states and private actors are faced with the ensuing issues. In particular, the contribution of women in small- and medium-scale commercial fisheries is paramount, although often unrecognised and unregulated. The role of women as active agents and participants has been overlooked and international law of the sea still largely qualifies as a “male affair”. At the same time,

women constitute also a vulnerable group in international law of the sea, as they are more likely to be subject to trafficking, torture, and sexual abuses at seas, whether they end up there as seafarers, members of national navies, passengers or victims of trafficking.

Furthermore, after the 1995 Beijing Declaration and Platform for Action set the agenda for reaching women’s rights, gender equality has been placed at the frontline on the 2000 Millennium Development Goals. The MDG call upon the UN, the international community and civil society to adopt action and policies of gender mainstreaming tailored to achieve the equality commitments. At the institutional level, the need to recognise and strengthen the capacity of women in the maritime sector is currently addressed by the International Maritime Organization, the International Labour Organization and the Food and Agriculture Organization, and has been recently recalled also by the Secretary General of the United Nations in his 2014 and 2015 Reports to the General Assembly on Oceans and Law of the Sea.

The purpose of the conference is therefore to open up this field of research to the academic and professional communities, by mapping the existing international legal framework and discussing whether existing norms provide adequate protection for both women and men at sea and sufficient tools to strengthen their capacity to engage in a productive manner in this field. Questions that the conference intends to explore include: Is international law of the sea gender neutral, or does it reflect a male perspective that eventually marginalises women? What can be said about the role of international human rights law in providing protection to women at sea? Should a re- evaluation or re-interpretation of the system be taken into account in order to integrate a gender perspective? What are the most relevant areas in the law of the sea and maritime law where women play a major role or face particular hardships? How can their role be strengthened and women themselves be empowered?

The conference convenors welcome contributions on the gender implications of the law of the sea. We are particularly interested in international, comparative and EU perspectives on the following topics:

  •   International law of the sea and gender. Is the law of the sea gender neutral? Could/should feminist legal theory engage more with the topic? Would law of the sea benefit from such an analytical approach?
  • Torture, sexual abuses and trafficking at sea. Human trafficking, forced labour and slavery are endemic phenomena in the fisheries sector in some geographical areas; men and women, often due to their ethnicity, are sold and forced to work under physical and psychological threat. Women are the most vulnerable subject to torture, rape and sexual abuses. Do existing international norms adequately address the issue? What is peculiar about torture and sexual abuses when they occur at sea? Does international human rights law constitute a sufficient ground to tackle issues faced by women at sea or does it reinforce the depiction of women as victims rather than active participants within the international law of the sea framework?

Continue reading →

The Republic of the Philippines v The People’s Republic of China: A question of jurisdiction

/ Hayley Roberts / Leave a comment

The dispute in the South China Sea continues to be played out on the global stage with no resolution yet in sight. Tensions endure as the Philippines pursues its quest for arbitral resolution, whilst China continues to stake its claims in the area despite the ongoing litigation. Satellite photographs have been released in recent months of Chinese barges enlarging the size of reefs and islands, and the building of airstrips and harbours to accommodate jets and warships. This demonstrates China’s determination to assert its ownership of virtually the entire South China Sea.

Image Credit: www.smh.com.au

[Image Credit: http://www.smh.com.au ]

The Philippines has challenged the basis of China’s territorial claims by way of arbitral proceedings, and lodged a Memorial in March 2014. The Arbitral Tribunal (for which the Permanent Court of Arbitration acts as a Registry) fixed 15 December 2014 as the date for China to submit a Counter-Memorial in response, however no such document has been forthcoming. The Chinese Government has previously stated in a Note Verbale that it will ‘neither accept nor participate in the arbitration unilaterally initiated by the Philippines.’  Article 287(3) of the United Nations Convention on the Law of the Sea 1982 (LOSC), which both States are party to, requires States to select a preferred means of binding dispute resolution involving third parties, and if they fail to do so, arbitration under Annex VII becomes the default means – unless reservations have been made in writing with regard to optional exceptions (see below). As China and the Philippines have not agreed on a binding mechanism, they are deemed to have selected arbitration unless the aforementioned exceptions apply. Article 9 of that Annex provides for default of appearance; namely if one of the parties fails to appear before the arbitral tribunal, the other party may request that the tribunal continue its proceedings and make an award. This may well be the approach of the Tribunal in this case, as China refuses to participate.

Continue reading →

The Bay of Bengal Maritime Arbitration Case: Part II

/ Arpita Goswami / Leave a comment

Delimitation of EEZ and Continental Shelf

In order to delimit the areas beyond the territorial sea, the Tribunal first determined the relevant coastlines of the Parties and subsequently the relevant area. Its task was “…to identify the coast that generate(s) projections which overlap with the projection from the coast of the other Party.” The Tribunal found that India’s relevant coastline stretched further south west to Sandy Point as opposed to Devi Point as India had claimed. It also found that the projections from the northern tip of the Andaman Islands (India) qualified for the identification of the relevant area. It delimited the relevant area accordingly.

In his dissenting opinion, Dr. P.S. Rao, criticized the identification of the coastline stretching to Sandy Point and the relevant area, by pointing out that the international jurisprudence demands that the construction of the relevant area be “… as strict as possible to denote the disputed area as closely as possible…”. He also disagreed on identification of projections from the Andaman Islands, as its coastal front is neither opposite nor adjacent to the coast of Bangladesh.

Preference was given to the Equidistance/Special Circumstance method for delimitation of delimitation of the EEZ and continental shelf within 200nm, over the angle bisector method proposed by Bangladesh, for the reasons of transparency and the fact that Bangladesh’s arguments for angle bisector line weren’t found to be convincing. The Tribunal reasoned that the instability of Bangladesh’s coast doesn’t render it special circumstance as it was possible to identify the base points, nor can future possibility of climate change be taken to adjust provisional equidistance line.

Delimitation of Continental Shelf Beyond 200NM

The Parties and the Tribunal both agreed on the point that there is a single continental shelf , and that there is no difference between the continental shelf within 200nm and the so called ‘outer continental shelf’. The Tribunal recognizing that both the Parties have entitlements in continental shelf beyond 200 nm, decided to delimit the continental shelf beyond 200nm using the equidistance/relevant circumstances method as it has used for delimiting the shelf within 200nm.

The Tribunal accepted Bangaldesh’s argument that the concavity of Bangladesh’s coast indeed produces cut off effect. It ruled that the provisional equidistant line was not equitable as it prevents Bangladesh from extending its maritime boundary as far as International Law permits, thus defeating the principle of equitable use of the sea area. Thereby rendering it a special circumstance, the Tribunal proposed adjustment of the equidistant line within and beyond 200nm.

The final adjustment of the equidistant line gave out more area to Bangladesh. This adjustment was criticized by Dr. P.S. Rao, as in his opinion the Delimitation Point from which the adjustment was affected was well before the point where a significant cut off occurs. This adjustment is not sufficiently justified. Also, the fact that the adjusted line concurs with the bisector line proposed by Bangladesh is arbitrary and run against the majority’s own rejection of the bisector line. Continue reading →

The Bay of Bengal Maritime Arbitration Case: Part I

/ Arpita Goswami / Leave a comment

Introduction

On 7 July 2014, the Permanent Court of Arbitration, the Hague, passed the award in the Indo-Bangladesh Maritime Arbitration Case (The Bay of Bengal Maritime Boundary Arbitration). The case was initiated by Bangladesh against India in October 2009, pursuant to Art. 287 of the UNCLOS, after 11 rounds of negotiations between the parties over five decades proved to be indecisive, and often marred by local politics. Following pages give a summary of various issues and facts considered by the tribunal to reach the final award.

The Tribunal was composed of: Judge Rudiger Wolfrum (President), Judge Jean-Pierre Cot, Judge Thomas A. Mensah, Dr. P.S. Rao, and Prof. Ivan Shearer. Dr. P.S. Rao reserved a concurring and dissenting opinion.

Background

The Indian Independence Act, 1947 of the United Kingdom, partitioned from India the state of West Pakistan and East Pakistan. East Pakistan was carved out of the Bengal Province, with West Bengal remaining in India. In order to demarcate the boundary between East Pakistan and West Bengal, the Bengal Boundary Commission was set up in 1947 chaired by Sir Cyril Radcliffe. On 13 August 1947, the report was submitted describing the boundary, and is known as “Radcliffe Award.”

Thereafter, in the light of disputes on the application of Radcliffe Award, an Indo-Pakistan Boundary Disputes Tribunal was set up, known as Bagge Tribunal. The Award of this Tribunal dealt with segments not relevant to this case.

On 26 March 1971, Bangladesh declared Independence from Pakistan and succeeded to the territory of East Pakistan and its boundaries.

The boundary between India and Bangladesh runs across the Sunderban Delta region. The southern section of the land boundary lies in the riverine features, which fall in the Bay of Bengal. This delimitation exercise involves delimiting the boundary river, identifying the terminal point of the land boundary, to delimit the territorial sea, the EEZ, the continental shelf within and beyond 200nm.

Jurisdiction

The Parties were deemed to have accepted arbitration in accordance with Annex VII since there was no declaration made by either party under Art. 287(3) (Choice of Procedure), nor had any party made a declaration under Art. 298, thereby, not excluding the current dispute from compulsory dispute resolution mechanism entailing binding procedure. The Tribunal assumed the jurisdiction to ‘… adjudicate the present case, to identify land boundary terminus and   to delimit the territorial sea, the Exclusive Economic Zone and the continental shelf between the parties within and beyond 200nm in the areas where the claims of the parties overlap. Continue reading →

Oil Tanker Pirated Off Ghana Coast

/ Milena Sterio / Leave a comment

On June 7th, reports surfaced that a Liberian tanker had gone missing off the coast of Ghana.  The captain had apparently made a distress call reporting that the vessel was being attacked by pirates.  As of today, the ship remains missing; unfortunately, is it likely that it has been pirated and we can only speculate as to the kinds of demands that pirates will make regarding the ship and its crewmembers.

Although piracy has been on the decline off the coast of Somalia, in 2013 the number of piracy attacks rose by one-third off the coast of West Africa, thereby driving up insurance rates and threatening the safety of maritime routes in this region.  The root cause of West African piracy seems to be the uprising in the Nigerian oil-rich Niger Delta, where criminal networks and gangs have blossomed.  West African pirates typically hijack larger ships carrying precious cargo, such as oil.  Attacks have taken place in Nigeria, but also off the coasts of Ghana and Cote d’Ivoire, undermining the development of West Africa as an oil and gas hub by destabilizing deliveries.  West African pirates seem particularly daring.  In an earlier attack, in January 2014, they attacked a vessel off the coast of Angola and sailed it all the way up to Nigeria.

As I have reported earlier on this blog, the development of West African piracy is a serious concern, as it threatens to destabilize the region and thwart economic development.  Unfortunately, it is questionable whether lessons learning from the global combat against Somali piracy will be of any value, as the two piracy models differ on many levels.  The rise of West African piracy underscores the need for the international community to continue its anti-piracy efforts, despite a decline in Somali piracy attacks.

Cross-posted on Communis Hostis Omnium.

Will China force the USA’s hand to revisit the Law of the Sea Convention?

/ Hayley Roberts / 5 Comments

On 28th May, US President Barack Obama again called upon the US Senate to ratify the UN Convention on the Law of the Sea 1982 (LOSC), following tension in the South China Sea. This area of the ocean is notoriously problematic, with China claiming sovereignty over almost all of the South China Seas and failing to recognise any rival claims from neighbouring States, such as Vietnam and the Philippines. Conflict appears to have been renewed afresh when Vietnam reported that a Chinese flagged vessel had intentionally struck two of its ships in the area at the beginning of May.

Although China has ratified the LOSC, it asserts that it has a historical claim over disputed islands that pre-date the 1982 treaty. On 1st June, the Deputy Chief of the General Staff of the People’s Liberation Army, Wang Guanzhong, speaking in the Shangri-La Dialogue, maintained that the Convention was “not the only point of reference” in adjusting sovereignty over islands and seas, strongly suggesting that mounting disputes and its membership of the Law of the Sea Convention would not cause it to reconsider the infamous ‘Nine Dash Line’ that demarcates its claim to the South China Sea. It takes this stance despite the fact that the Philippines filed a case with the International Tribunal on the Law of the Sea in March challenging its sovereignty (China having already made known its refusal to take part in any such arbitration).

Nine Dash Line, Source: BBC.com

At the same summit, US Defense Secretary, Chuck Hagel, promised that the US would “not look the other way” whilst international law provisions were breached. However such statements would surely be more meaningful and persuasive if the USA itself had ratified the LOSC? Such a stance could appear to be hypocritical and difficult to take seriously. Although the Convention entered into force in 1994 and has since been ratified by 166 parties, the USA is yet to sign. The vote of at least two-thirds of the Senate is required to ratify a treaty, at least 67 Senators in this case. In 2012, 34 Republican Senators formally declared they would not support the ratification of the treaty; many feel that the LOSC would give the International Seabed Authority too much power over US commercial interests.

As tensions continue to escalate in the South China Seas, it will be noteworthy to see whether China will compel the US Senate to end its longstanding Democrat-Republican tug of war on this Convention. What’s more, if the US relents and signs the LOSC, however unlikely, what will its next move be? How will the US ratification of the treaty resolve these disputes and conflicting claims to land, sea and resources? It remains to be seen whether such talk by the USA will in fact lead to affirmative action or whether this is simply a shot across the bows.

Introducing Hayley Roberts

/ Karen Hoffmann / Leave a comment

Hayley RobertsIt’s our great pleasure today to welcome Hayley Roberts as an IntLawGrrls contributor. Hayley is a Lecturer in Law at the School of Law in Bangor University, where she teaches modules in the Law of the Sea, Admiralty Law, and is course director for the Law of the Sea and Maritime Law LL.M. degrees. Hayley’s Ph.D., funded by the Goronwy Clever Doctoral Scholarship and awarded in 2012, looked at the legal protection of underwater cultural heritage both on a national and international level. Hayley’s current research expands on this and looks specifically at how the recent devolution of power in the United Kingdom has impacted on historic wreck management.

Hayley’s fields of interest are the law of the sea generally, underwater cultural heritage law, salvage law, and laws on piracy. She has a particular interest in the wreck of the RMS Titanic and has been invited to give many lectures and papers on the subject.

 Hayley’s introductory post today discusses China and the Law of the Sea Convention.  Heartfelt welcome!