Pub Date : 2018-09-27DOI: 10.1080/00908320.2018.1502499
Timothy Perry
Since 2003, the Proliferation Security Initiative (PSI) has grown from a small collection of like-minded states into a widely accepted, and increasingly institutionalized, counterproliferation effort. However, while the PSI has evolved, the literature around it has stagnated—and disserves ongoing debate by adopting a framework that is both ahistorical and binary. Building on the author’s 2007 paper, this article assesses the past 15 years’ critiques, and argues that the PSI paradoxically reinforces our prevailingly mare liberum regime at the same time that it challenges established navigational freedoms such as the right of innocent passage.
{"title":"The PSI as a Shared Good: How the Proliferation Security Initiative Both Challenges and Reinforces a Prevailingly Mare Liberum Regime","authors":"Timothy Perry","doi":"10.1080/00908320.2018.1502499","DOIUrl":"https://doi.org/10.1080/00908320.2018.1502499","url":null,"abstract":"Since 2003, the Proliferation Security Initiative (PSI) has grown from a small collection of like-minded states into a widely accepted, and increasingly institutionalized, counterproliferation effort. However, while the PSI has evolved, the literature around it has stagnated—and disserves ongoing debate by adopting a framework that is both ahistorical and binary. Building on the author’s 2007 paper, this article assesses the past 15 years’ critiques, and argues that the PSI paradoxically reinforces our prevailingly mare liberum regime at the same time that it challenges established navigational freedoms such as the right of innocent passage.","PeriodicalId":45771,"journal":{"name":"Ocean Development and International Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90685321","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-27DOI: 10.1080/00908320.2018.1502488
Suksoo Kim
Abstract East Asian countries have vigorously engaged in a buildup of the capabilities of their coast guards. This has been driven in part by the need to protect their maritime jurisdiction in the face of numerous maritime disputes. The coast guards in East Asia serve as the front-line defender of sovereignty and maritime claims.
{"title":"The Expansion of and Changes to the National Coast Guards in East Asia","authors":"Suksoo Kim","doi":"10.1080/00908320.2018.1502488","DOIUrl":"https://doi.org/10.1080/00908320.2018.1502488","url":null,"abstract":"Abstract East Asian countries have vigorously engaged in a buildup of the capabilities of their coast guards. This has been driven in part by the need to protect their maritime jurisdiction in the face of numerous maritime disputes. The coast guards in East Asia serve as the front-line defender of sovereignty and maritime claims.","PeriodicalId":45771,"journal":{"name":"Ocean Development and International Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83866886","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-06-20DOI: 10.1080/00908320.2018.1479394
C. Whomersley
1. In an interesting article in this Journal published in Volume 49, issue 3, J. Ashley Roach considers one aspect of the Award on the Merits given by the Tribunal in the South China Sea case on 26 July 2016. Roach is a well-known expert on the international law of the sea and an often persuasive exponent of United States views thereon. Roach’s basic thesis is that the Tribunal was correct to reach the conclusion that it is not permissible in international law for a state to draw straight baselines around an offshore archipelago, that is, one detached from the main territory of the state. The Tribunal’s reasoning relates to the Spratly (Nansha) Islands, but is expressed in general terms. 2. In an earlier paper, I expressed serious reservations about the Tribunal’s decision in this respect, but Roach says that my analysis is “deficient.” First, I had pointed out that China has not in fact to date drawn straight baselines around the Spratly (Nansha) Islands; hence the question of whether straight baselines could be drawn around the Islands was hypothetical. In these circumstances, I questioned whether it was right for the Tribunal to consider such a complex question of the international law of the sea. Roach argues that because China did not appear in the proceedings, the Tribunal “felt obliged to consider the issue.” 3. However, surely the correct analysis is that, even if the Tribunal decided it must consider this issue, it should, once it had done so, have concluded that it was hypothetical. The Tribunal ought then to have asked itself whether it was appropriate for it to make a ruling on the issue. Furthermore, Roach does not seem to dispute that the issue was in fact hypothetical, and that the Tribunal’s views thereon are thus obiter, as suggested in my paper. 4. I have in addition argued that in any event, the Tribunal had no jurisdiction to address this issue. This is because China has exercised its option under Article 298(1)(a) of the U.N. Convention on the Law of the Sea (LOSC) to exclude from the compulsory dispute settlement procedures “disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations.” Any decision on whether China may draw straight baselines around the Spratly (Nansha) Islands must inevitably “have a bearing” on any maritime delimitation between China and the Philippines and thus “concern” the application of Articles 74 and 83 within the meaning of Article
{"title":"Offshore Archipelagos Enclosed By Straight Baselines: A Reply to J. Ashley Roach","authors":"C. Whomersley","doi":"10.1080/00908320.2018.1479394","DOIUrl":"https://doi.org/10.1080/00908320.2018.1479394","url":null,"abstract":"1. In an interesting article in this Journal published in Volume 49, issue 3, J. Ashley Roach considers one aspect of the Award on the Merits given by the Tribunal in the South China Sea case on 26 July 2016. Roach is a well-known expert on the international law of the sea and an often persuasive exponent of United States views thereon. Roach’s basic thesis is that the Tribunal was correct to reach the conclusion that it is not permissible in international law for a state to draw straight baselines around an offshore archipelago, that is, one detached from the main territory of the state. The Tribunal’s reasoning relates to the Spratly (Nansha) Islands, but is expressed in general terms. 2. In an earlier paper, I expressed serious reservations about the Tribunal’s decision in this respect, but Roach says that my analysis is “deficient.” First, I had pointed out that China has not in fact to date drawn straight baselines around the Spratly (Nansha) Islands; hence the question of whether straight baselines could be drawn around the Islands was hypothetical. In these circumstances, I questioned whether it was right for the Tribunal to consider such a complex question of the international law of the sea. Roach argues that because China did not appear in the proceedings, the Tribunal “felt obliged to consider the issue.” 3. However, surely the correct analysis is that, even if the Tribunal decided it must consider this issue, it should, once it had done so, have concluded that it was hypothetical. The Tribunal ought then to have asked itself whether it was appropriate for it to make a ruling on the issue. Furthermore, Roach does not seem to dispute that the issue was in fact hypothetical, and that the Tribunal’s views thereon are thus obiter, as suggested in my paper. 4. I have in addition argued that in any event, the Tribunal had no jurisdiction to address this issue. This is because China has exercised its option under Article 298(1)(a) of the U.N. Convention on the Law of the Sea (LOSC) to exclude from the compulsory dispute settlement procedures “disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations.” Any decision on whether China may draw straight baselines around the Spratly (Nansha) Islands must inevitably “have a bearing” on any maritime delimitation between China and the Philippines and thus “concern” the application of Articles 74 and 83 within the meaning of Article","PeriodicalId":45771,"journal":{"name":"Ocean Development and International Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85439795","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-06-20DOI: 10.1080/00908320.2018.1479356
Liu Nengye, X. Qi
Abstract This article addresses the following questions: How does the South China Sea matter to the European Union? What roles could the EU play in the governance of the South China Sea? In particular, how could the EU effectively engage with China in the South China Sea? The article provides an analysis of the legal basis and policy background for the EU's involvement in the South China Sea governance and explores the EU's interests in the South China Sea.
{"title":"How Might the European Union Engage Constructively with China in the South China Sea?","authors":"Liu Nengye, X. Qi","doi":"10.1080/00908320.2018.1479356","DOIUrl":"https://doi.org/10.1080/00908320.2018.1479356","url":null,"abstract":"Abstract This article addresses the following questions: How does the South China Sea matter to the European Union? What roles could the EU play in the governance of the South China Sea? In particular, how could the EU effectively engage with China in the South China Sea? The article provides an analysis of the legal basis and policy background for the EU's involvement in the South China Sea governance and explores the EU's interests in the South China Sea.","PeriodicalId":45771,"journal":{"name":"Ocean Development and International Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82954392","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-06-20DOI: 10.1080/00908320.2018.1479352
J. Hartmann
The United Nations Convention on the Law of the Sea (LOSC) permits state parties to establish an Exclusive Economic Zone (EEZ) 200 nautical miles from their coast. Coastal states have exclusive jurisdiction over resources within the EEZ, but navigational and other high seas freedoms continue to exist. A significant number of states have, however, enacted legislation that departs from the LOSC, interfering with the navigational rights and freedoms of other states. This article analzses this development with a specific focus on the Arctic. It investigates the powers of Arctic coastal states to regulate shipping in the EEZ and thereby navigation in the Arctic Ocean. It adds to the existing literature by providing an analysis of state practice, suggesting that despite uncertainty concerning the interpretation of the LOSC Article 234 and the right to exercise legislative jurisdiction over ice-covered waters, a not insignificant number of states have claimed jurisdiction in their own EEZ beyond the rights granted in the LOSC, and are therefore not in a position to object to extensive jurisdictional claims in the Arctic.
{"title":"Regulating Shipping in the Arctic Ocean: An Analysis of State Practice","authors":"J. Hartmann","doi":"10.1080/00908320.2018.1479352","DOIUrl":"https://doi.org/10.1080/00908320.2018.1479352","url":null,"abstract":"The United Nations Convention on the Law of the Sea (LOSC) permits state parties to establish an Exclusive Economic Zone (EEZ) 200 nautical miles from their coast. Coastal states have exclusive jurisdiction over resources within the EEZ, but navigational and other high seas freedoms continue to exist. A significant number of states have, however, enacted legislation that departs from the LOSC, interfering with the navigational rights and freedoms of other states. This article analzses this development with a specific focus on the Arctic. It investigates the powers of Arctic coastal states to regulate shipping in the EEZ and thereby navigation in the Arctic Ocean. It adds to the existing literature by providing an analysis of state practice, suggesting that despite uncertainty concerning the interpretation of the LOSC Article 234 and the right to exercise legislative jurisdiction over ice-covered waters, a not insignificant number of states have claimed jurisdiction in their own EEZ beyond the rights granted in the LOSC, and are therefore not in a position to object to extensive jurisdictional claims in the Arctic.","PeriodicalId":45771,"journal":{"name":"Ocean Development and International Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73743772","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-06-20DOI: 10.1080/00908320.2018.1479355
Yan Song
ABSTRACT This article discusses the insufficient consideration of the role of state practice in the interpretation and implementation of Article 121(3) of the UNCLOS by the Arbitral Tribunal in the South China Sea Arbitration Case. The article argues that the Tribunal's view on the “threshold” established and its conclusion that there was no evidence that an agreement existed based upon state practice on the interpretation of Article 121(3) are open to question.
{"title":"The July 2016 Arbitral Award, Interpretation of Article 121(3) of the UNCLOS, and Selecting Examples of Inconsistent State Practices","authors":"Yan Song","doi":"10.1080/00908320.2018.1479355","DOIUrl":"https://doi.org/10.1080/00908320.2018.1479355","url":null,"abstract":"ABSTRACT This article discusses the insufficient consideration of the role of state practice in the interpretation and implementation of Article 121(3) of the UNCLOS by the Arbitral Tribunal in the South China Sea Arbitration Case. The article argues that the Tribunal's view on the “threshold” established and its conclusion that there was no evidence that an agreement existed based upon state practice on the interpretation of Article 121(3) are open to question.","PeriodicalId":45771,"journal":{"name":"Ocean Development and International Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/00908320.2018.1479355","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72476771","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-06-20DOI: 10.1080/00908320.2018.1479358
I. Fodchenko
This article examines the provisions in the 2010 Russian–Norwegian Treaty on Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean dealing with the management of transboundary hydrocarbon resources. How compatible is the unitization mechanism in the Treaty with Russian and Norwegian legislation? Will there be tension between Russian and Norwegian interpretations? How does Russian and Norwegian legislation support or challenge the concept of a “unit operator” in a cross-border unitization? What are the possible concerns and pitfalls related to mechanisms for consultations and procedures for dispute resolution?
{"title":"Legal Aspects of the Russian–Norwegian Model for Cross-Border Unitization in the Barents Sea and Arctic Ocean","authors":"I. Fodchenko","doi":"10.1080/00908320.2018.1479358","DOIUrl":"https://doi.org/10.1080/00908320.2018.1479358","url":null,"abstract":"This article examines the provisions in the 2010 Russian–Norwegian Treaty on Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean dealing with the management of transboundary hydrocarbon resources. How compatible is the unitization mechanism in the Treaty with Russian and Norwegian legislation? Will there be tension between Russian and Norwegian interpretations? How does Russian and Norwegian legislation support or challenge the concept of a “unit operator” in a cross-border unitization? What are the possible concerns and pitfalls related to mechanisms for consultations and procedures for dispute resolution?","PeriodicalId":45771,"journal":{"name":"Ocean Development and International Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90228271","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-06-20DOI: 10.1080/00908320.2018.1479370
Jianjun Gao
ABSTRACT The Timor Sea Conciliation is the first experience with the compulsory conciliation under Annex V of the 1982 United Nations Convention on the Law of the Sea. The Conciliation Commission addressed the objections to its competence as a preliminary matter and rendered a separate decision. This article examines the approach of the Conciliation Commission in dealing with its competence issues and the understandings of the Conciliation Commission as regards the relevant provisions of the 1982 Convention.
{"title":"The Timor Sea Conciliation (Timor-Leste v. Australia): A Note on the Commission's Decision on Competence","authors":"Jianjun Gao","doi":"10.1080/00908320.2018.1479370","DOIUrl":"https://doi.org/10.1080/00908320.2018.1479370","url":null,"abstract":"ABSTRACT The Timor Sea Conciliation is the first experience with the compulsory conciliation under Annex V of the 1982 United Nations Convention on the Law of the Sea. The Conciliation Commission addressed the objections to its competence as a preliminary matter and rendered a separate decision. This article examines the approach of the Conciliation Commission in dealing with its competence issues and the understandings of the Conciliation Commission as regards the relevant provisions of the 1982 Convention.","PeriodicalId":45771,"journal":{"name":"Ocean Development and International Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77313503","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-06-20DOI: 10.1080/00908320.2018.1479369
P. Hallwood, Thomas J. Miceli
ABSTRACT Customary international law has governed high seas piracy for many centuries and is now codified in the United Nations Convention on the Law of the Sea (LOSC). In this article, we discuss the reasons why enforcement against piracy today is less effective than three hundred years ago. We contend that crime, including the crime of piracy, can be modeled as a rational choice that is responsive to expected rewards and punishments. Based on this view, we argue that three hundred years ago, the free rider problem resulting from enforcement on the high seas was less prevalent than it is today because seaborne trade was more concentrated in the vessels of a few countries, making enforcement more like internal than international policing. The persistence of piracy today also stems from a continuing low probability of capture coupled with lenient punishments. In addition to enforcement differences, we contrast the sources of piracy in the two eras—in the earlier period, the end of privateering led many privateers to engage in piracy, whereas today, the main source of pirates in the Western Indian Ocean is the existence of a “failed state,” and off West Africa and South East Asia pirates are common criminals.
{"title":"Piracy and Privateers in the Golden Age: Lessons for Today","authors":"P. Hallwood, Thomas J. Miceli","doi":"10.1080/00908320.2018.1479369","DOIUrl":"https://doi.org/10.1080/00908320.2018.1479369","url":null,"abstract":"ABSTRACT Customary international law has governed high seas piracy for many centuries and is now codified in the United Nations Convention on the Law of the Sea (LOSC). In this article, we discuss the reasons why enforcement against piracy today is less effective than three hundred years ago. We contend that crime, including the crime of piracy, can be modeled as a rational choice that is responsive to expected rewards and punishments. Based on this view, we argue that three hundred years ago, the free rider problem resulting from enforcement on the high seas was less prevalent than it is today because seaborne trade was more concentrated in the vessels of a few countries, making enforcement more like internal than international policing. The persistence of piracy today also stems from a continuing low probability of capture coupled with lenient punishments. In addition to enforcement differences, we contrast the sources of piracy in the two eras—in the earlier period, the end of privateering led many privateers to engage in piracy, whereas today, the main source of pirates in the Western Indian Ocean is the existence of a “failed state,” and off West Africa and South East Asia pirates are common criminals.","PeriodicalId":45771,"journal":{"name":"Ocean Development and International Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88325085","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-04-03DOI: 10.1080/00908320.2018.1452386
Zhen Sun
ABSTRACT This article discusses legal mechanisms for the protection of cable ships engaged in operations for submarine telecommunication cables. It argues that all states should legislate to provide that the interference with cable ships engaged in cable operations, done willfully or through culpable negligence, should be a punishable offense.
{"title":"Protection of Cable Ships Engaged in Operations for Submarine Telecommunication Cables","authors":"Zhen Sun","doi":"10.1080/00908320.2018.1452386","DOIUrl":"https://doi.org/10.1080/00908320.2018.1452386","url":null,"abstract":"ABSTRACT This article discusses legal mechanisms for the protection of cable ships engaged in operations for submarine telecommunication cables. It argues that all states should legislate to provide that the interference with cable ships engaged in cable operations, done willfully or through culpable negligence, should be a punishable offense.","PeriodicalId":45771,"journal":{"name":"Ocean Development and International Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2018-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85797015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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