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The International Law of the Sea, 3rd Edition by Yoshifumi Tanaka, provides comprehensive coverage of contemporary issues in maritime law, including migrant movement, island definitions, and marine conservation. This edition is updated with discussions on climate change impacts and international peace at sea, making it a valuable resource for students. Tanaka, a professor at the University of Copenhagen, has authored multiple works on maritime law and international disputes.

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100% found this document useful (1 vote)
92 views76 pages

The International Law of The Sea 3rd Edition Yoshifumi Tanaka Instant Download

The International Law of the Sea, 3rd Edition by Yoshifumi Tanaka, provides comprehensive coverage of contemporary issues in maritime law, including migrant movement, island definitions, and marine conservation. This edition is updated with discussions on climate change impacts and international peace at sea, making it a valuable resource for students. Tanaka, a professor at the University of Copenhagen, has authored multiple works on maritime law and international disputes.

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The International Law of the Sea
Third Edition
This new edition has been fully revised to include up-to-date coverage of essential issues of

the international law of the sea. Covering a number of new and important issues, such as

the headline debate of migrant movement across the seas, and the de finition of islands in
light of the South China Sea Arbitration, it also includes chapters on conservation of marine

living resources and biological diversity, protection of the marine environment, and

international peace and security at sea, as well as building further on such topics as the

impact of climate change on the oceans. A precise and readable book, with many figures
and tables, The International Law of the Sea continues to be the best choice for students

wanting to understand the law of the sea.

YOSHIF UMI TANAKA is Professor of International Law with Speci fic Focus on the Law of
the Sea at the Faculty of Law, University of Copenhagen. He is the single author of five

books: Predictability and Flexibility in the Law of Maritime Delimitation (2006; 2nd edition,

2019), A Dual Approach to Ocean Governance The International Law of the Sea
(2008),

(2012; 2nd edition, 2015), The Peaceful Settlement of International Disputes (Cambridge

University Press, 2018) and The South China Sea Arbitration (2019). He has published

widely in the fields of the law of the sea, international environmental law and peaceful

settlement of international disputes.


The International
Law of the Sea

Third Edition

Yoshifumi Tanaka
University of Copenhagen
University Printing House, Cambridge CB2 8BS, United Kingdom
One Liberty Plaza, 20th Floor, New York, NY 10006, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
314 321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi 110025, India
– –

79 Anson Road, #06 04/06, Singapore 079906


Cambridge University Press is part of the University of Cambridge.


It furthers the University s mission by disseminating knowledge in the pursuit of

education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781108424219
DOI: 10.1017/9781108545907
First edition © Cambridge University Press 2012
Second edition © Yoshifumi Tanaka 2015
Third edition © Yoshifumi Tanaka 2019
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First edition published 2012
Second edition published 2015
7th printing 2018
Third edition published 2019
Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall 2019
A catalogue record for this publication is available from the British Library

Library of Congress Cataloging-in-Publication Data


Names: Tanaka, Yoshifumi, author.
Title: The international law of the sea / Yoshifumi Tanaka, University of Copenhagen.
Description: Third edition. | Cambridge, United Kingdom : Cambridge University Press, 2019. |
Includes bibliographical references and index.
Identifi ers: LCCN 2018053995 | ISBN 9781108424219 (hardback) | ISBN 9781108440103 (paperback)
Subjects: LCSH: Law of the sea. | BISAC: LAW / International.
Classifi cation: LCC KZA1145 .T36 2019 | DDC 341.4/5 dc23

LC record available at https://lccn.loc.gov/2018053995


ISBN 978-1-108-42421-9 Hardback
ISBN 978-1-108-44010-3 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Dedicated to my teachers,

Lucius Ca flisch, Hugh Thirlway and Tetsuo Sato

Let the heavens rejoice, let the earth be glad;

Let the sea resound, and all that is in it.

Psalm 96:11
Brief Contents

Preface page xvii

List of Figures xix

List of Tables xx

List of Abbreviations xxi

Table of Cases xxiv

Table of Treaties and Instruments xxx

PART I THE DIVIDED OCEANS: INTERNATIONAL LAW


GOVERNING JURISDICTIONAL ZONES 1

1 The Law of the Sea in Perspective 3


2 Baselines and Related Issues 53
3 Marine Spaces Under National Jurisdiction I: Territorial Sovereignty 94
4 Marine Spaces Under National Jurisdiction II: Sovereign Rights 145
5 Marine Spaces Beyond National Jurisdiction 186
6 Maritime Delimitation 236

PART II OUR COMMON OCEAN: PROTECTION OF COMMUNITY


INTERESTS AT SEA 279

7 Conservation of Marine Living Resources 281


8 Protection of the Marine Environment 322
9 Conservation of Marine Biological Diversity 404
10 Marine Scientific Research 432

vii
viii Brief Contents

11 Maintenance of International Peace and Security at Sea 451


12 Land-Locked and Geographically Disadvantaged States 479
13 Peaceful Settlement of International Disputes 493
14 Looking Ahead 538

Index 544
Contents

Preface page xvii

List of Figures xix

List of Tables xx

List of Abbreviations xxi

Table of Cases xxiv

Table of Treaties and Instruments xxx

PART I THE DIVIDED OCEANS: INTERNATIONAL LAW


GOVERNING JURISDICTIONAL ZONES 1

1 The Law of the Sea in Perspective 3


1 Introduction 3
1.1 General Considerations 3

1.2 Functions of the Law of the Sea 4

1.3 Two Paradigms in the Law of the Sea 5

2 Marine Spaces in the Law of the Sea 7


2.1 Scope of the Oceans in the Law of the Sea 7

2.2 Typology of Marine Spaces 7

3 Sources of the International Law of the Sea 11


3.1 Formal Sources 11

3.2 Material Sources 18

4 Principles of the International Law of the Sea 22


4.1 Principle of Freedom 22

4.2 Principle of Sovereignty 24

4.3 Principle of the Common Heritage of Mankind 25

5 The Codification of the Law of the Sea 26


5.1 The Hague Conference for the Codification of International Law (1930) 26

5.2 The First UN Conference on the Law of the Sea (1958) 28

5.3 The Second UN Conference on the Law of the Sea (1960) 31

5.4 The Third UN Conference on the Law of the Sea (1973 – 1982) 32

ix
x Contents

6 Outline of the UN Convention on the Law of the Sea 37


6.1 General Considerations 37

6.2 Principal Features of the Convention 38

7 Development After UNCLOS III 40


7.1 General Considerations 40

7.2 Adoption of two Implementation Agreements 41

7.3 De facto Amendment of the LOSC Through Meetings of States Parties 41

7.4 Development of the Law of the Sea Through International Organisations 43

8 Conclusions 46
2 Baselines and Related Issues 53
1 Introduction 53
2 Baselines 54
2.1 Normal Baselines 54

2.2 Straight Baselines 56

2.3 Juridical Bays 63

2.4 Historic Bays 67

2.5 Bays Bordered By More Than One State 71

2.6 River Mouths 72

2.7 Ports 73

3 Islands 74
3.1 Nature of the Problem 74

3.2 De finition of an Island 75

3.3 Rocks for the Purposes of Article 121(3) 77

3.4 Customary Law Nature of Article 121 84

3.5 Reefs 85

4 Low-Tide Elevations 87
4.1 Identi fication of Low-Tide Elevations 87

4.2 Case Law Concerning Low-Tide Elevations 88

5 Conclusions 90
3 Marine Spaces Under National Jurisdiction I: Territorial Sovereignty 94
1 Introduction 94
2 Internal Waters 95
2.1 Spatial Scope of Internal Waters 95

2.2 Legal Status of Internal Waters 96

2.3 Jurisdiction of the Coastal State over Foreign Vessels in Internal Waters 96

2.4 Access to Ports 98

2.5 Ships in Distress at Sea 99

3 Territorial Sea 102


3.1 Legal Status of the Territorial Sea 102

3.2 The Right of Innocent Passage 104

3.3 The Right of Innocent Passage of Warships 108

3.4 The Right of Innocent Passage of Foreign Nuclear-Powered Ships and Ships Carrying Inherently

Dangerous or Noxious Substances 111

3.5 The Rights of the Coastal State Concerning Innocent Passage 113

3.6 The Obligations of the coastal State Concerning Innocent Passage 116

4 International Straits 116


4.1 Legal Framework for International Straits Prior to 1982 116
xi Contents

4.2 Typology of International Straits Under the LOSC 117

4.3 International Straits Under Part III of the LOSC 117

4.4 International Straits Outside the Scope of Part III of the LOSC 122

4.5 The Right of Transit Passage 123

4.6 Rights and Obligations of Coastal States Bordering Straits 126

4.7 Customary Law Character of the Right of Transit Passage 129

4.8 Non-suspendable Innocent Passage 129

4.9 Legality of Creation of Bridges in International Straits 130

5 Archipelagic Waters 131


5.1 General Considerations 131

5.2 De fi nition of an Archipelago, Archipelagic States and Archipelagic Waters 131

5.3 Archipelagic Baselines 133

5.4 Jurisdiction of Archipelagic States Over Archipelagic Waters 136

5.5 The Right of Innocent Passage Through Archipelagic Waters 137

5.6 The Right of Archipelagic Sea Lanes Passage 138

5.7 Rights and Obligations of an Archipelagic State 140

6 Conclusions 140
4 Marine Spaces Under National Jurisdiction II: Sovereign Rights 145
1 Introduction 145
2 Contiguous Zone 146
2.1 The Concept of the Contiguous Zone 146

2.2 Coastal State Jurisdiction Over the Contiguous Zone 147

3 Exclusive Economic Zone 149


3.1 Genesis of the Concept of the EEZ 149

3.2 Legal Status of the EEZ 151

3.3 Sovereign Rights Over the EEZ 153

3.4 Jurisdiction of Coastal States Over the EEZ 155

3.5 Freedoms of Third States 158

3.6 Residual Rights 159

3.7 Historic Rights and the EEZ 160

4 Continental Shelf 161


4.1 Genesis of the Concept of the Continental Shelf 161

4.2 Spatial Scope of the Continental Shelf 162

4.3 Criteria for Determining the Outer Limits of the Continental Shelf Beyond

200 Nautical Miles 164

4.4 The Commission on the Limits of the Continental Shelf 167

4.5 Procedures to Establish the Outer Limits of the Continental Shelf 168

4.6 Payments Concerning the Exploitation of the Continental Shelf Beyond 200 Nautical Miles 171

4.7 The Sovereign Rights of the Coastal State Over the Continental Shelf 172

4.8 Freedoms of Third States 174

4.9 Protection of Archaeological and Historical Objects Found Within the Continental Shelf 177

5 Conclusions 182
5 Marine Spaces Beyond National Jurisdiction 186
1 Introduction 186
2 The High Seas 187
2.1 Spatial Scope of the High Seas 187

2.2 Principle of the Freedom of the High Seas 187


xii Contents

2.3 Principle of the Exclusive Jurisdiction of the Flag State 189

2.4 The Nationality of a Ship 193

2.5 Problems Associated With Flags of Convenience 195

2.6 Exceptions to the Exclusive Jurisdiction of the Flag State (1): The Right of Visit 198

2.7 Exceptions to the Exclusive Jurisdiction of the Flag State (2): The Right of Hot Pursuit 202

2.8 Exceptional Measures for Interception of Foreign Vessels on the High Seas 207

2.9 Regulation of Migrant Smuggling by Sea 210

3 The Area 216


3.1 General Considerations 216

3.2 Spatial Scope of the Area 217

3.3 Raison d ’être of the Principle of the Common Heritage of Mankind 217

3.4 Elements of the Principle of the Common Heritage of Mankind 219

3.5 International Seabed Authority 220

3.6 System for the Exploration and Exploitation of Resources of the Area 224

3.7 Obligations and Liability of Sponsoring States 225

3.8 The 1994 Implementation Agreement 227

4 Conclusions 232
6 Maritime Delimitation 236
1 Introduction 236
2 Concept of Maritime Delimitation 237
2.1 De finition 237

2.2 Typology of Maritime Delimitation 238

3 Treaty Law Concerning Maritime Delimitation 238


3.1 The 1958 Geneva Conventions 238

3.2 The 1982 UN Convention on the Law of the Sea 240

4 Development of Case Law Relating to Maritime Delimitation: Two Contrasting Approaches 242
4.1 The First Phase (1969 1992)– 242

4.2 The Second Phase (1993 2007) – 244


4.3 The Third Phase (2009 present) 247

4.4 Commentary 247

5 Consideration of Relevant Circumstances (1): Geographical Factors 250


5.1 Con figuration of Coasts 251

5.2 Proportionality 252

5.3 Baselines 256

5.4 Presence of Islands 258

5.5 Geological and Geomorphological Factors 261

5.6 Presence of Third States 261

6 Consideration of Relevant Circumstances (2): Non-geographical Factors 263


6.1 Economic Factors 263

6.2 Conduct of the Parties 265

6.3 Historic Title and Historic Rights 266

6.4 Security Interests 266

6.5 Navigational Factors 267

6.6 Environmental Factors 267

7 An Evaluation 267
7.1 General Trend of Case Law 267
xiii Contents

7.2 Judicial Creativity in the Law of Maritime Delimitation 268

7.3 Delimitation of the Continental Shelf Beyond 200 Nautical Miles 269

8 Provisional Arrangements 272


8.1 Articles 74(3) and 83(3) of the LOSC 272

8.2 Unilateral Exploration and Exploitation of Natural Resources in Disputed Areas 274

9 Conclusions 275

PART II OUR COMMON OCEAN: PROTECTION OF COMMUNITY


INTERESTS AT SEA 279

7 Conservation of Marine Living Resources 281


1 Introduction 281
2 Conservation of Marine Living Resources Prior to 1982 283
3 Conservation of Marine Living Resources Under the LOSC (1): The Zonal Management

Approach 284
3.1 General Considerations 284

3.2 Conservation of Marine Living Resources in the EEZ 285

3.3 Conservation of Marine Living Resources in the High Seas 287

3.4 Limits of the Zonal Management Approach 288

4 Conservation of Marine Living Resources Under the LOSC (2): The Species-speci c Approach fi 289
4.1 Shared and Straddling Fish Stocks 289

4.2 Highly Migratory Species 291

4.3 Marine Mammals 291

4.4 Anadromous Stocks 298

4.5 Catadromous Species 299

4.6 Limits of the Species-Speci fic Approach 300

5 Development After the LOSC 301


5.1 The Concept of Sustainable Development 301

5.2 The Ecosystem Approach 303

5.3 The Precautionary Approach 306

6 Ensuring Compliance 310


6.1 Flag State Responsibility and Its Limits 310

6.2 At-sea Inspection of Contracting Party Vessels 313

6.3 At-sea Inspection of Non-Contracting Party Vessels 314

6.4 Port Inspection of Contracting Party Vessels 316

6.5 Port Inspection of non-Contracting Party Vessels 317

7 Conclusions 319
8 Protection of the Marine Environment 322
1 Introduction 322
2 Typology of Marine Pollution 324
2.1 General Considerations 324

2.2 Land-based Marine Pollution 325

2.3 Vessel-source Marine Pollution 326

2.4 Dumping at Sea 327

2.5 Pollution from Seabed Activities 329


xiv Contents

3 Legal Framework for Marine Environmental Protection Prior to 1982 329


3.1 Customary Law 329

3.2 Treaty Law 331

4 Protection of the Marine Environment in the LOSC 332


4.1 Generality and Comprehensiveness 332

4.2 Uniformity of Rules 333

4.3 Obligation to Cooperate in the Protection of the Marine Environment 335

5 Regulation of Land-based Marine Pollution 336


5.1 Limits of the Global Legal Framework 336

5.2 Development of Regional Treaties 339

5.3 Identi fication of Harmful Substances 339

5.4 Precautionary Approach 342

5.5 Environmental Impact Assessment and Monitoring 342

5.6 International Control 344

5.7 Access to Information and Public Participation 347

6 Regulation of Vessel-source Marine Pollution 348


6.1 MARPOL 348

6.2 The LOSC Regime (1): Regulation by Flag States 351

6.3 The LOSC Regime (2): Regulation by Coastal States 352

6.4 The LOSC Regime (3): Regulation by Port States 355

6.5 Port State Control 357

6.6 Intervention by Coastal States in the case of Pollution Casualties 359

6.7 Pollution Emergencies at Sea 361

6.8 Liability for Oil Pollution Damage 363

6.9 Liability for Other Pollution Damage 368

6.10 Issues of Special Concern: Invasive Alien Species and Ocean Noise 370

7 Dumping at Sea 373


7.1 Regulation of Dumping at Sea Under the LOSC 373

7.2 The 1972 London Dumping Convention and the 1996 Protocol 374

7.3 Regional Treaties 376

7.4 Ocean Sequestration and Fertilisation 377

8 Regulation of Pollution from Seabed Activities 379


8.1 Marine Pollution Arising From Seabed Activities Under National Jurisdiction 379

8.2 Marine Pollution Arising From Seabed Activities in the Area 381

9 Environmental Protection of Ice-covered Areas 383


9.1 Article 234 of the LOSC 383

9.2 Environmental Protection of the Marine Arctic 385

10 The Impacts of Climate Change on the Oceans 391


10.1 The Reduction of GHG Emissions from Shipping 391

10.2 Ocean Acidi fication 394

11 Conclusions 398
9 Conservation of Marine Biological Diversity 404
1 Introduction 404
2 Principal Approaches to Conservation of Marine Biological Diversity 406
2.1 General Considerations 406

2.2 Three Approaches 407


xv Contents

3 Global Legal Frameworks for the Conservation of Marine Biological Diversity 409
3.1 The 1982 UN Convention on the Law of the Sea 409
3.2 The 1992 Convention on Biological Diversity 413
4 Marine Protected Areas 418
4.1 General Considerations 418
4.2 Typology of MPAs in International Law 419
4.3 MPAs in the High Seas 423
4.4 Limits of MPAs 428
5 Conclusions 429
10 Marine Scientific Research 432
1 Introduction 432
2 The Concept of Marine Scientifi c Research 433
3 Regulation of Marine Scientific Research in the LOSC 436
3.1 General Considerations 436
3.2 Marine Scientific Research in Marine Spaces Under National Jurisdiction 437
3.3 Marine Scientific Research in Marine Spaces Beyond National Jurisdiction 439
3.4 Regulation of Scienti fic Research Installations 440
4 Legality of Military and Hydrographic Surveys in the EEZ 442
5 International Cooperation in Marine Scientific Research 444
6 Transfer of Technology 445
6.1 Transfer of Technology Under the LOSC 445
6.2 IOC Criteria and Guidelines on the Transfer of Marine Technology 447
7 Conclusions 448
11 Maintenance of International Peace and Security at Sea 451
1 Introduction 451
2 The Suppression of Piracy 452
2.1 Concept of Piracy 452
2.2 Seizure of Pirates 456
2.3 The Role of the UN Security Council in Counter-piracy Operations 460
2.4 The Use of Privately Contracted Armed Security Personnel 461
3 Regulation of Unlawful Offences and Weapons of Mass Destruction at Sea 463
3.1 The 2005 SUA Convention 463
3.2 Proliferation Security Initiative 467
3.3 UN Interceptions at Sea 468
4 Military Exercises in the EEZ 469
5 Regulation of Nuclear Weapons at Sea 472
6 Conclusions 476
12 Land-Locked and Geographically Disadvantaged States 479
1 Introduction 479
2 Land-Locked States and Access to the Sea 482
2.1 Legal Regime Prior to the LOSC 482
2.2 Legal Regime of the LOSC 483
3 The Navigational Rights of Land-Locked States 486
4 Land-Locked and Geographically Disadvantaged States and Uses of the Oceans 486
4.1 Fishing Rights 486
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