Volume 7, Issue 1 - Frontier Issues in Ocean Law: Marine Resources, Maritime Boundaries, and the Law of the Sea

This article examines the longstanding political and legal obstacles to bilateral cooperation between the United States and Mexico and suggests that bilateral cooperation could be improved without antagonizing long-standing political tensions by creating one or more Transboundary Energy Security and Environmental Cooperation Areas (TESECA) in the GOM's maritime boundary region. Two areas, in particular, that straddle the maritime boundary are especially well suited. The first is known as the Perdido Foldbelt Region, where large quantities of hydrocarbons are known to exist in transboundary reservoirs. The second is the area beyond national jurisdiction known as the Western Gap, which is already governed by an international treaty between the two nations. Creating a TESECA in these areas will provide a valuable institutional forum for bilateral discussion and development of cooperative management opportunities for transboundary hydrocarbons as well as the protection of the marine environment.

When evaluating new trends that have emerged since the conclusion of the Geneva Conventions on the Law of the Sea in 1958, it is apparent that the use and acceptance by states of joint development or cooperative management agreements has increased dramatically during the last fifty years. More significantly, these agreements, related with the exploration, management and exploitation of common maritime natural resources, have become an effective mechanism for achieving peaceful resolution of maritime boundary disputes. As a result, joint development or cooperative management strategies have become a common component of modern maritime boundary delimitation treaties. Moreover, this study will show that Caribbean and Latin American States are in the forefront of this new trend.

The first part of the paper examines the significant extension in coastal State jurisdiction offshore and outlines progress in the delimitation of maritime boundaries worldwide. Some of the problems associated with lack of maritime boundary delimitation and the resultant large zones of overlapping maritime claims are then highlighted. Progress in the cooperative management of ocean resources through maritime joint development zones is then reviewed.

An important aspect of the history to date of the International Tribunal for the Law of the Sea is the role of urgent proceedings. Of the fifteen cases submitted to the Tribunal from 1997 until the end of 2008, thirteen have related to urgent proceedings, especially proceedings for prompt release of vessels and crews (under article 292 of the UN Law of the Sea Convention), and proceedings for the request of provisional measures, pending constitution of an arbitral tribunal (under article 290, par. 5, of the convention). This article considers the maritime and environmental issues that have come before the Tribunal, with discussion of how urgent proceedings in the cases at issue have responded to the needs of the international community; and it examines other areas of dispute, including maritime boundary delimitation, in which urgent proceedings can be a useful tool for potential litigants.

North Korea is one of the signatory States which have not yet ratified the 1982 UN Convention on the Law of the Sea. Although the Convention is not binding upon North Korea, it should be noted that, as prescribed in Article 18 of the 1969 Vienna Convention on the Law of Treaties, it bears the obligation not to defeat the object and purpose of the Convention. Therefore, the Convention on the Law of the Sea may provide us with significant guidelines in assessing the North Korean perspectives as expressed in its literature. The review in this paper will show us how well North Korea takes advantage of the relevant provisions of the 1982 UN Convention on the Law of the Sea and the conflicts with its neighboring States to accomplish the goals of its marine policy. After reviewing issues such as the Baseline System and Historic Bays, the Territorial Sea and its Navigational Regimes, the Military Boundary Zone, the Exclusive Economic Zone and the Continental Shelf Regimes, the Navigational Regime in Straits used for International Navigation, and also perceptions regarding the High Seas Regime and regarding Maritime Delimitation, this research suggests the incompatibility of North Korea's perspectives on the law of the sea with general international law and the 1982 UN Convention, based mainly upon its establishment of excessive straight baselines and military boundary zones. The fact that the precise locations of its baselines have not been made public may be a serious threat to maritime safety as well. It is recommended that the best way to safeguard the rights of North Korea to use its territorial sea, continental shelf, and exclusive economic zone is to ratify the 1982 UN Convention and to abolish its military boundary zones.

Whereas the Seabed Disputes Chamber within the International Tribunal for the Law of the Sea (“the Tribunal”) is expressly mandated to give an advisory opinion at the request of the Assembly or Council of the International Seabed Authority under Part XI of the United Nations Convention on the Law of the Sea (“the Convention”), the advisory jurisdiction of the Tribunal in its full composition is not explicitly provided for under Part XV of the Convention or in the Statute of the Tribunal annexed to the Convention. In order to provide the Tribunal with an advisory function, a proposal was first presented when the Tribunal was preparing its Rules in 1996. This proposal was accepted and was embodied in article 138 of the Rules of the Tribunal. Paragraph 2 of article 138 provides for a body eligible to make a request to the Tribunal for an advisory opinion. Eligibility can be accorded to “whatever body is authorized by or in accordance with the agreement to make the request to the Tribunal.” Under article 96 of the Charter of the United Nations, the eligibility to request an advisory opinion of the Court is restricted to the General Assembly, the Security Council, other organs and specialized agencies which may at any time be so authorized by the General Assembly, but there is no such express provision in the Convention or the Statute of the Tribunal restricting the organizations or bodies eligible to request an advisory opinion of the Tribunal. Accordingly, a provision in an international agreement relating to the purposes of the Convention which empowers a body to make a request for an advisory opinion to the Tribunal may be sufficient for it to entertain such a request. In view of this liberal and flexible approach with regard to the eligibility requirement under paragraph 2 of article 138 of the Rules, States may feel free to seek an advisory opinion in law of the sea matters from the Tribunal through a body, permanent or ad hoc, created by an agreement for the purpose of transmitting a request for an advisory opinion to the Tribunal. Furthermore, in light of the non-binding nature of an advisory opinion to be given by the Tribunal under article 138 of its Rules, States may also wish to use the advisory proceedings before the Tribunal, when appropriate, as a means of dispute resolution in law of the sea matters as was frequently the case before the Permanent Court of International Justice from 1922 to 1935. When States elect to use the advisory proceedings before the Tribunal for dispute settlement, these proceedings may function as an alternative means to supplement the compulsory procedures entailing binding decisions under Part XV of the Convention.