Blurring the Ocean Zones: The Effect of the Proliferation Security Initiative on the Customary International Law of the Sea

Abstract This article revisits the package deal nature of the United Nations Convention on the Law of the Sea (LOSC) and its implications for determining customary international law. A survey of the case law illustrates that the International Court of Justice (ICJ) has not given particular weight to the fact that the LOSC was negotiated and accepted as a package deal. Nevertheless, the ICJ’s declaration that Article 121, paragraph 3 of the LOSC is a customary rule tends to be based on a ‘package deal approach’, which focuses on the textual and logical links between the paragraphs that manifest an ‘indivisible régime’. By exploring the difficulties of determining the customary status of Article 76(2)–(7) concerning the continental shelf beyond 200 nautical miles, which may arise in the pending Nicaragua v. Colombia II case, this article calls for a cautious attitude towards determination of customary rules from the LOSC.

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Historic Rights in African State Practice

The Korean Journal of International and Comparative Law ◽

10.1163/22134484-12340123 ◽

2019 ◽

Vol 7 (2) ◽

pp. 166-188

Author(s):

Edwin Egede

Keyword(s):

International Law ◽

African State ◽

Law Of The Sea ◽

Legal Obligation ◽

State Party ◽

Customary International Law ◽

State Practice ◽

Dash Line ◽

United Nations Convention ◽

The Law

Abstract Historic rights in the law of the sea has been given prominence since the publication by China of the so-called nine-dash line map. Certain States have challenged this claim as inconsistent with the United Nations Convention on the Law of the Sea (UNCLOS) to which China is a State Party. On the other hand, it has been argued that although historic rights claims are not comprehensively regulated by the UNCLOS they are actually governed by the principles of general international law. Consequently, this would require establishing if there is a general and consistent practice of States followed by them from a sense of legal obligation which establish historic rights claims are consistent with Customary International Law. This article explores the State Practice of African States in order to determine whether these States acknowledge and recognize historic rights claims as consistent with contemporary law of the sea.

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The Third United Nations Conference on the Law of the Sea: the 1976 New York Sessions

The American Journal of International Law ◽

10.2307/2199528 ◽

1977 ◽

Vol 71 (2) ◽

pp. 247-269 ◽

Cited By ~ 22

Author(s):

Bernard H. Oxman

Keyword(s):

New York ◽

United Nations ◽

International Law ◽

Customary Law ◽

Law Of The Sea ◽

Customary International Law ◽

The Third ◽

Geneva Conventions ◽

State Practice ◽

The Law

The law of the sea has changed, for good or for ill. The Revised Single Negotiating Text (hereinafter RSNT) issued in the spring of 1976 may prove to be the single most important document regarding the law of the sea since the 1958 Geneva Conventions in terms of its influence on state practice, whether by way of an ultimate treaty or otherwise. Important differences will exist regarding the extent to which portions of the text are declaratory of emerging customary international law and regarding the extent to which the text must be changed to be acceptable as a universal treaty or as customary law. Indeed, difficult questions of implementation of its principles in bilateral and other arrangements are already arising. Positions taken at multilateral conferences may differ from the positions taken in other contexts. But the text will not be ignored.

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Declarations, Statements and ‘Disguised Reservations’ with Respect to the Convention on the Law of the Sea

International and Comparative Law Quarterly ◽

10.1093/iclq/50.4.767 ◽

2001 ◽

Vol 50 (4) ◽

pp. 767-786 ◽

Cited By ~ 4

Author(s):

L. D. M. Nelson

Keyword(s):

United Nations ◽

International Law ◽

The Other ◽

Law Of The Sea ◽

Vienna Convention ◽

Controversial Issues ◽

Customary International Law ◽

The Third ◽

The Law ◽

The One

The question of reservations was one of the ‘controversial issues’ facing the Third United Nations Conference on the Law of the Sea in drawing up the final clauses of the Convention. On the one hand it was argued that the integrity of the Convention must be safeguarded and that the ‘package deal’ must be protected from possible disintegration by the making of reservations. On the other hand the view was held that ‘allowance for the possibility of reservations is aimed at accommodating the views of the delegations who have maintained that they cannot become parties to the Convention unless the Convention permits them to exercise a right to enter reservations, in accordance with customary international law and as envisaged under the Vienna Convention on the Law of Treaties.’ In short the need to preserve the integrity of the Convention was pitted against the need to secure universal participation in the Convention.

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Part 1 The Cold War Era (1945–89), 14 The USS Pueblo Incident—1968

10.1093/law/9780198784357.003.0014 ◽

2018 ◽

Author(s):

von Heinegg Wolff Heintschel

Keyword(s):

Cold War ◽

International Law ◽

Democratic Republic ◽

Armed Forces ◽

Law Of The Sea ◽

Legal Analysis ◽

Armed Attack ◽

Customary International Law ◽

The Status ◽

The Cold War

This contribution discusses the 1968 USS Pueblo Incident by assessing the factual background on the basis of available documents and by providing a legal analysis on the basis of the then applicable international law. In view of the contentious issue of the USS Pueblo’s location at the time of the attack and her seizure by the armed forces of the People’s Democratic Republic of Korea, the discussion of the legal issues at stake is not limited to the ius ad bellum but must be extended to the law of the sea, in particular the breadth of the territorial sea according to customary international law recognized in 1968 and the status of foreign warships. As regards the ius ad bellum, the unjustified use of force against a sovereign immune warship is considered an armed attack triggering the flag state’s right of self-defence.

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Hot Pursuit

10.1093/law/9780199673049.003.0042 ◽

2016 ◽

Author(s):

Bill Gilmore

Keyword(s):

Law Enforcement ◽

International Law ◽

Use Of Force ◽

The State ◽

Law Of The Sea ◽

Customary International Law ◽

Cross Border ◽

Legal Justification ◽

The Right ◽

Self Defence

This chapter examines the doctrine of ‘hot pursuit’ used by the state to exercise its coercive powers beyond national territory for law enforcement purposes. It discusses hot pursuit by sea, land, and air in the context of international law, particularly with respect to self-defence and reprisal. Whilst hot pursuit is well recognized in the customary international law of the sea, it has yet to achieve that form of normative recognition in relation to pursuit on land or by air. The chapter considers the debate over hot pursuit as a legal justification for cross-border military incursions independent of the right of self-defence and describes the concept of extended constructive presence before concluding with an analysis of hot pursuit in a use of force context.

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Part V Regional Perspectives on Global Ocean Governance, 11 The African Perspective on Global Ocean Governance

10.1093/law/9780198824152.003.0011 ◽

2018 ◽

Author(s):

Vrancken Patrick

Keyword(s):

International Law ◽

Negotiation Process ◽

International Negotiation ◽

Global Ocean ◽

Law Of The Sea ◽

Customary International Law ◽

Ocean Governance ◽

Transport Safety ◽

African Perspective ◽

United Nations Convention

This chapter discusses issues of global ocean governance from an African perspective. It first provides an overview of the historical lack of engagement by Africa in the 400-year long evolution of the customary international law of the sea before considering its belated entry into the international negotiation process that yielded the 1982 United Nations Convention on the Law of the Sea (UNCLOS). It then describes the developing institutional framework for African ocean governance, focusing on the African Union and its areas of competence, along with the different African regional arrangements that have been established to address maritime issues ranging from natural environmental protection and sustainable marine resource development, to maritime transport safety and security. It also examines Africa's contribution to global ocean governance framework and concludes with an assessment of the Combined Exclusive Maritime Zone of Africa (CEMZA) proposal.

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Law of the Land, Law of the Sea: The Lost Link Between Customary International Law and The General Maritime Law

SSRN Electronic Journal ◽

10.2139/ssrn.1832717 ◽

2011 ◽

Author(s):

David J. Bederman

Keyword(s):

International Law ◽

Law Of The Sea ◽

Land Law ◽

Customary International Law ◽

Maritime Law

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The Enrica Lexie Award Amid Jurisdictional and Law of the Sea Issues

The Italian Yearbook of International Law Online ◽

10.1163/22116133-03001010 ◽

2021 ◽

Vol 30 (1) ◽

pp. 167-190

Author(s):

Giuseppe Cataldi

Keyword(s):

United Nations ◽

International Law ◽

Point Of View ◽

Law Of The Sea ◽

Customary International Law ◽

Arbitral Award ◽

Merchant Ship ◽

Functional Immunity ◽

United Nations Convention

This article analyzes the Enrica Lexie Arbitral Award, first of all, in relation to international law issues concerning the application of the United Nations Convention on the Law of the Sea (UNCLOS). The article then focuses on the question of the functional immunity of the two marines, from the point of view of the Tribunal’s assertion of its incidental jurisdiction to deal with the matter, as well as of the Tribunal’s affirmation of the existence of a customary international law rule applicable in the present case. Both conclusions appear unconvincing, also in light of the role of the two marines on board a merchant ship. In any case, the fact remains that the judgment has the merit of finally putting an end to a long-standing dispute, to the satisfaction of the two parties involved.

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The United Nations Convention on the Law of the Sea

Continental Shelf Limits ◽

10.1093/oso/9780195117820.003.0006 ◽

2000 ◽

Author(s):

John-Pierre Levy

Keyword(s):

World War Ii ◽

United Nations ◽

International Law ◽

Legal Framework ◽

Law Of The Sea ◽

Customary International Law ◽

United Nations Convention ◽

The United Nations ◽

The Law ◽

World Organization

When the United Nations Convention on the Law of the Sea (the Convention) was adopted in 1982 after nine years of negotiations, it was hailed as "the ultimate constitution for the oceans". For the first time, an international legal instrument acknowledges that "the problems of ocean space are closely interrelated and need to be considered as a whole". Accordingly, in 320 articles and 9 annexes, the treaty provides the international legal framework for exercising the rights and duties of States relating to their uses of ocean space and its resources. After substantially amending the part dealing with the deep seabed area and its resources by the Agreement of 28 July 1994, the Convention entered into force on 16 November 1994 for those States which deposited instruments of ratification. It is now strongly supported by a significant majority of the States of the world, including major maritime powers, developing states, and others. The Convention codifies and develops customary international law as well as creating new rules and institutions. In some respects, the Convention provides specific rules and, in other respects, more general rules, whose precise meaning will evolve through practice. The Convention provides at minimum a framework for all uses of the sea. It envisages other international agreements, bilateral and multilateral, to elaborate its implementation. In spite of the breadth of the subject matter, the practice of States generally conforms to the law of the sea embodied in the Convention. The international community rightly feels proud of its achievement. But international law (and the law of the sea in particular) is a reflection of the needs of States during a certain period in history and their expectations of the future. This Convention does not necessarily contain the answers to all the challenges awaiting humankind in the 21st century, but it provides a sound framework for addressing them. Before examining in depth the issues relating to the delimitation of the outer limit of the continental shelf, a brief review of the major features of the Convention is appropriate. In the aftermath of World War II and soon after the creation of the United Nations in 1945, the new world organization requested its International Law Commission to consider the codification of existing customary international law relating to the oceans.

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