Law Of The Sea Research Paper - Law Assignment Help

Assignment Task

Law of the Sea Research Paper Assessment Questions

Instructions regarding the Research Paper: 

Topic: Please choose any ONEof the three questions below. 

Submission Date: The last date to submit the Research Paper is 12th December 11.59 pm IST. 

Marks: The research paper is the external assessment component and will account for 30% of your grade (30 marks). 

Word Limit: The word limit for the Research Paper is 3000 words (excluding footnotes and the Bibliography).

Citations/Bibliography: Keeping in mind the fact that this is a research paper and not a response or reflection paper, you are expected to not only provide your own opinion on the subject matter but also refer to scholarly articles from reputable authors. You may also make use of the discussions that took place during the class lectures and cite the same. You are to provide a Bibliography enlisting the sources that you have used.

Topics for the Research Paper:

Introduction

The Preamble to the United Nations Convention on the Law of the Sea (the “Convention”) refers to the desire of the States Parties to settle all issues relating to the law of the sea “in a spirit of mutual understanding and co-operation”. Reference is further made in the Preamble to the “principles of justice and equal rights”. Some commentators have questioned whether these noble aspirations find reflection in the provisions of the Convention setting out the regimes with respect to certain important uses of the sea. The following questions seek to elicit your views in this regard.
I. The Navigation Regime in Straits Used for International Navigation
Part III of the Convention lays down the regime for navigation in straits used for international navigation, including on the enjoyment by all ships and aircraft of the right of “transit passage” in certain of these straits and in circumstances laid down in Part III. 

Two of the principal architects of the regime described it as follows:

Part III represents a balance between the interests of States bordering busy straits on such matters as security, safety and protection of the marine environment, and the interests of other States in the freedom of communications. 

The importance of the regime to the United States was pointed out in a Report of 19 December 2007 of the Committee on Foreign Relations of the United States Senate submitted by then Senator Biden:

The Convention provides protections for critical freedoms of navigation and overflight of the world's oceans. These include the prohibition of territorial sea claims beyond 12 nm and the express protection for and accommodation of passage rights through the territorial sea and archipelagic waters, including transit passage through straits and archipelagic sea lanes passage. . . . United States Armed Forces rely on these navigation and overflight rights daily, and their protection is of paramount importance to U.S. national security.

Note also the following comments of scholars:

International law on straits is a compromise between the interests of the international community, for which freedom of passage through these narrow waterways that link various parts of the high seas is the utmost importance, and the desire of the coastal States to reserve themselves a right of supervision and regulation of traffic in waters to their shores. 

The regime of international straits is one of the more important aspects of the modern law of the sea, reflecting the balance between the freedom of navigation and legitimate rights and interests of littoral States. 

While, in the short term, the regime of international straits appears settled, there have been occasional destabilizing incidents where littoral States have sought to close a strait to vessels carrying hazardous cargoes or when national security has been threatened. In the medium term to longer term, ensuring a balance between national and international security and the freedom of navigation may prove to be one of the biggest challenges for the regime. 

In light of these comments and your further research, you are asked to comment on whether you think that a proper balance has been achieved, as referred to in the writing of Nandan and Anderson, giving examples from among the provisions of Part III. 
II. Living Resources in the Exclusive Economic Zone 
Articles 61 and 62 of the Convention set out the basic system for the exploitation of the living resources of the exclusive economic zone. These articles can be read to impose on the coastal State obligations with respect to the conservation and optimum utilization of these resources. Yet, some commentators remain of the view that these obligations, as worded, do not justify the granting in the Convention of the broad discretionary and exclusive powers to the coastal State with respect to fisheries in the exclusive economic zone. 

In its Advisory Opinion, Case No. 21, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), the International Tribunal for the Law of the Sea dealt with the obligations of the Commission’s Member States with respect to the conservation and management of shared fishery resources. In this context, the Tribunal had the occasion to refer to the obligations of coastal States set out in articles 61 and 62 of the Convention (paras. 205 to 209 of the Advisory Opinion).

After stating that it “is of the view that, although the Convention approaches the issue of conservation and management of living resources from the perspective of obligations of the coastal State, these obligations entail corresponding rights” (para. 205), the Tribunal refers to the relevant concepts to be found in articles 61 and 62 of the Convention, including that the coastal States concerned must ensure that the maintenance of stocks is not endangered by over-exploitation, that the measures are based on the best scientific evidence available and that they are designed to maintain or restore stocks at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors. 

The Tribunal addresses specifically shared stocks and the conservation obligations of the Member States of the SRFC. However, the Advisory Opinion is useful in understanding the regime applicable in general to fisheries within the exclusive economic zone under articles 61 and 62 of the Convention. 

Commentators, including many participants in the negotiations leading to the Convention, are agreed that many of the terms setting out the basic system are imprecise. Tanaka, for instance, in describing the system uses such terms as “inadequate and inappropriate”  administrative measures and refers to evasions and manipulation by coastal States in implementing the system. He concludes:

Overall, one is forced to conclude that the obligations to conserve living resources in the EEZ remain weak. 

A system within the Convention providing for third-party compulsory dispute settlement would therefore have been useful to resolve questions of interpretation and application with respect to these imprecise terms. Instead, as regards fisheries within the exclusive economic zone, article 297(3) of the Convention effectively rules out recourse to such settlement.

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