The Development of the Law of the Sea Convention: The Role of International Courts and Tribunals

297 Pages·2020·2.766 MB·English

by  Øystein Jensen (editor)

The Development of
the Law of the Sea
Convention
The Role of International Courts and Tribunals
Edited by
Øystein Jensen
Fridtjof Nansen Institute, Norway, and the University of
South-Eastern Norway
Cheltenham, UK • Northampton, MA, USA
© The Editor and Contributors Severally 2020
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic, mechanical or
photocopying, recording, or otherwise without the prior permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.
William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2020940529
This book is available electronically in the
Law subject collection
http://dx.doi.org/10.4337/9781839104268
ISBN 978 1 83910 425 1 (cased)
ISBN 978 1 83910 426 8 (eBook)
Contents
List of contributors vii
Preface xi
List of abbreviations xii
Table of cases xiv
1 General introduction 1
Øystein Jensen
2 The regime of islands 14
Sir Malcolm D. Evans and Reece Lewis
3 Revealing a mosaic: international jurisprudence
concerning the non-fisheries elements of the exclusive
economic zone regime 48
Robin Churchill
4 Legislative and enforcement jurisdiction of the coastal
state with respect to fisheries in the exclusive economic zone 73
Nigel Bankes
5 Managing transboundary fish stocks for sustainability 104
Andrew Serdy
6 Obligations of flag states in the exclusive economic zone 139
Aldo Chircop
7 Deep seabed mining 168
Aline Jaeckel
8 ITLOS and the tale of the tenacious ‘genuine link’ 190
Moira L. McConnell
9 Hot pursuit 216
Knut E. Skodvin
10 Historic rights 244
Seokwoo Lee and Lowell Bautista
v
vi The development of the Law of the Sea Convention
11 Reflections 262
Øystein Jensen
Index 268
Contributors
Nigel Bankes is Professor and Chair in Natural Resources Law at the Faculty
of Law, University of Calgary, Canada. His research work covers a range
of areas, including carbon capture and storage, indigenous property rights
in settler states, unitization and joint development agreements in marine
areas, electricity regulation and dispute settlement under the United Nations
Convention on the Law of the Sea. Professor Bankes is a member of the
editorial boards of the Yearbook of Polar Law and the Arctic Review on Law
and Politics, and is the former editor of the Journal of Energy and Natural
Resources Law. In 2019, he received a Killam Annual Professorship for his
excellence in research, mentorship and teaching.
Lowell Bautista is Senior Lecturer at the School of Law at the Faculty of
Law, Humanities and the Arts, University of Wollongong, Australia. Dr
Bautista holds a Bachelor of Arts degree in Political Science (cum laude) and
a Bachelor of Laws degree from the University of the Philippines; a Master
of Laws (Marine and Environmental Law) degree from Dalhousie University,
Canada; and a PhD in law from the University of Wollongong. His areas of
research include territorial and maritime boundary issues in Asia-Pacific,
the South China Sea, Philippine maritime and territorial issues, underwater
cultural heritage and international environmental law, on which topics he has
also published.
Aldo Chircop is Professor of Law and Research Chair in Maritime Law and
Policy at Dalhousie University, Canada. He was formerly Chair in Marine
Environment Protection at the International Maritime Organization World
Maritime University in Malmö, Sweden; and has held directorships of the
Marine Affairs Program and Marine and Environmental Law Institute at
Dalhousie, the International Ocean Institute and the Mediterranean Institute,
Malta. Professor Chircop has co-authored or co-edited more than 20 books and
80 articles and book chapters in the field of international maritime law and the
international law of the sea.
Robin Churchill is Professor Emeritus in Public International Law at the
University of Dundee, Scotland. For decades, he has been a world-leading
vii
viii The development of the Law of the Sea Convention
academic in the field of the law of the sea and has acted as adviser/consultant
to various non-governmental organizations (particularly environmental and
fisheries organizations), foreign governments, the European Commission
and the European Parliament. He is a member of the editorial boards of the
British Yearbook of International Law, the International Journal of Marine
and Coastal Law and Law, Science and Policy. He is also a member of the
Permanent Court of Arbitration’s Panel of Arbitrators for Arbitration of
Disputes relating to Natural Resources and the Environment. Together with
Alan Vaughan Lowe, Churchill is the author of The Law of the Sea (Manchester
University Press 1999) – the authoritative standard work on the subject.
Sir Malcolm D. Evans is Professor of Public International Law at the
University of Bristol, England. His areas of legal specialization include both
international human rights protection and the international law of the sea.
Professor Evans is the co-general editor of the International and Comparative
Law Quarterly and co-editor-in-chief of the Oxford Journal of Law and
Religion. His textbook International Law (Oxford University Press 2018) is
widely recognized as an outstanding collection of pertinent writings by leading
scholars in the field. He became a member of the UN Subcommittee for the
Prevention of Torture in 2009 and since 2011 has served as its Chair. Professor
Evans was appointed Knight Commander of the Order of St Michael and St
George in 2016 for his services to torture prevention and religious freedom.
Aline Jaeckel is Lecturer in Law at the University of New South Wales,
Australia. Her research focuses on marine environmental management, ocean
governance, the law of the sea and international environmental law. Dr Jaeckel
has a particular research interest in the emerging regulation of deep seabed
mineral mining and is the author of The International Seabed Authority and
the Precautionary Principle – Balancing Deep Seabed Mineral Mining and
Marine Environmental Protection (Brill 2017). She sits on the editorial board
of Marine Policy and the advisory board to the Deep Ocean Stewardship
Initiative, a global interdisciplinary network of researchers focused on
science-policy engagement in ocean governance. Dr Jaeckel holds a PhD from
the University of New South Wales; an LLM from Leiden University, the
Netherlands; and an LLB from the University of the West of England, Bristol.
Øystein Jensen is Senior Research Fellow at the Fridtjof Nansen Institute
(Lysaker, Norway) and Associate Professor of Law at the University of
South-Eastern Norway. Professor Jensen obtained his PhD in international
law from the University of Oslo in 2013. He is the author of The Commission
on the Limits of the Continental Shelf: Law and Legitimacy (Brill 2013); other
Contributors ix
publications include books, book chapters and research articles, particularly in
the field of the law of the sea.
Seokwoo Lee is Professor of International Law at Inha University Law
School, Korea. Prior to taking up his current post, he conducted research at
several universities, including the University of Tokyo, Harvard, Georgetown,
Oxford, Durham and George Washington University. He holds a DPhil
(Oxford), LLMs (NYU, University of Minnesota, and Korea University), and
an LLB (Korea University). His research focuses on territorial and boundary
disputes, the law of the sea and international human rights law.
Reece Lewis is Lecturer in Law at Cardiff University, Wales. Prior to joining
Cardiff University, he completed his doctoral studies at the University of
Bristol under the supervision of Professor Sir Malcolm D. Evans. His research
is primarily in the field of the international law of the sea and on jurisprudential
issues concerning the international legal order.
Moira L. McConnell is Professor of Law Emerita and Honorary Fellow of
the Marine and Environmental Law Institute at the University of Dalhousie,
Canada. Her research interests are in the fields of public and private interna-
tional law and domestic law, including international law, the law of the sea,
maritime law and policy, international labour law, environmental law, govern-
ance systems, corporate law and governance, administrative and constitutional
law, social justice, contract law and human rights. She has more than 100
publications on a wide range of topics in these fields. Professor McConnell is
also a co-editor of the international interdisciplinary Ocean Yearbook and is
a member of the editorial board of the WMU Journal of Maritime Affairs.
Andrew Serdy is Professor of Public International Law and Ocean Governance
at the University of Southampton, England. He has served in various diplo-
matic positions in the Australian Government Department of Foreign Affairs
and Trade (including postings in Tokyo and Warsaw), before specializing
in the law of the sea in the Department’s Sea Law, Environmental Law and
Antarctic Policy Section. Professor Serdy has been legal adviser to Australian
delegations to the Commission for the Conservation of Southern Bluefin
Tuna, the Indian Ocean Tuna Commission and other international meetings,
and appeared for Australia in 2000 in the Southern Bluefin Tuna case. He has
published widely in the field of the law of the sea and is also a member of the
editorial board of Ocean Development & International Law and of the peer
review committee of the German Yearbook of International Law.
x The development of the Law of the Sea Convention
Knut E. Skodvin is Associate Professor at the Faculty of Law, University of
Bergen, Norway. His fields of expertise include public international law, the
law of armed warfare and the law of the sea. Professor Skodvin obtained his
PhD in international law from the University of Bergen in 2013 with a disser-
tation entitled Freedom of Navigation in the Exclusive Economic Zone under
the Law of the Sea Convention.
Preface
The Fridtjof Nansen Institute served as the national consortium partner when
the Jebsen Centre for the Law of the Sea was established at the University of
Tromsø – The Arctic University of Norway in 2013. During the six years when
the Centre was in operation, I was the leader of the work package ‘Fundamental
Challenges for the Law of the Sea’. In studying the driving factors behind the
progressive development of the law of the sea, we also examined the role of
international courts and tribunals. The present volume is among the outputs of
the research conducted in the final phase of that project.
Thanks are due to the many people who provided advice and assistance with
this book – not least the entire staff of the Jebsen Centre, for creating a special
environment of enthusiasm for learning and appreciation for growing. Further,
I wish to thank Alex G. Oude Elferink, who provided helpful ideas and com-
ments on an early outline for the book; and Sir Malcolm D. Evans, for useful
advice in the publication process.
My thanks also go to colleagues at the University of South-Eastern Norway
and the Fridtjof Nansen Institute. As always, I am grateful to Susan Høivik
for her competent language assistance in the preparation of the manuscript.
I also wish to thank the staff at Edward Elgar Publishing, especially my editor,
Amber Watts.
And finally, let me thank the skilled and devoted authors of the chapters in
this book, for putting in so much hard work.
As far as possible, the text has been updated as of 1 January 2020, although
in some places the reader is alerted to cases where decisions have been made
after this date.
Øystein Jensen
Oslo, 10 January 2020
xi