THE DISRUPTIVE EFFECTS OF FAILED STATES OVER THE LEGAL ORDER OF SEAS AND OCEANS (original) (raw)
Related papers
The Responsibility to Protect and Landlocked States' Access to the Sea: An Analogy
Buffalo Human Rights Law Review, 2015
The cornerstone of international law in providing stability in international relations is the sovereign equality of States, and both the Responsiblity to Protect and the Landlocked States clash with this bedrock of international law. The challenge put to international law by the existence and persistence of these two concepts questions the fine line that delineates international politics and international law. The result is the disclosure of the fragility that exists within the fabric of international law.
EUROPEAN SOCIETY OF INTERNATIONAL LAW Conference Paper No. 11/2018, 2018 ESIL Annual Conference, Manchester "International Law and Universality" Vol. 12, No. 5, 2018
This paper deals with the possible disappearance of some island States as a result of one of the negative effects of climate change, i.e., the sea level rise. In this sense, this phenomenon of ‘disappearing island States’ implies serious legal challenges to the Law of the Sea, the International Law and their alleged universality. Among others, the impact of the sea level rise on the maritime boundaries of the disappearing island States in addition to the feasibility of the proposed options to physically preserve the territory of the disappearing States are considered. From a Public International Law perspective, concerns as the possible disappearance of the constitutive statehood prerequisites (mainly, population and territory, which would progressively become uninhabitable), the need to avoid the statelessness of the disappearing island States’ nationals, or the hypothetical relocation of those ‘climate change refugees’ are analysed, too. Moreover, this contribution addresses the different strategies proposed in order to preserve the international legal personality of those States, namely: the acquisition of territory from other State, the federation with other States, the creation of governments in exile or the self-governing alternatives. In this sense, the studied alternatives seem unlikely to keep recognized over long time. Finally, consideration is given to the influence of this phenomenon in the universality of International Law, taking into account the principles and aims included in the Law of the Sea Convention (and its Preamble). The challenge of this phenomenon to the universality of International Law is based on the tough paradox according to which the smallest contributors to climate change (Small Island States) will be the most affected by climate change -even disappearing- and meanwhile their losses could eventually benefit some of the biggest contributors to climate change.
This paper examines the rules of international law relating to the establishment of maritime zones and their application in the case of sea level rise with particular reference to ‘disappearing states’. Substantive and procedural options for overcoming the presumption of the ambulatory nature of baselines are examined and the analysis applied to situations of inundation of island states by sea level encroachment. It is argued that it would be both inequitable and inconsistent with the objectives of the law of the sea for disappearing states to lose their maritime zones. A solution to the ‘disappearing state’ dilemma is suggested through adoption of a positive rule freezing baselines and through recognition of the category of ‘deterritorialised state’. It is concluded that the articulation of new rules of international law may be needed to provide stability, certainty and a future to disappearing states.
Paschal Obiora
For decades, most landlocked States have been faced with a deluge of hitches resulting from their inability to secure access to seaports. These problems have greatly hindered the economic development of these nations. To ease their sufferings, States without access to the seas have sought successive legal innovations to assert and enforce their right of access based on the international law principle of servitude. This study traces the evolution of international law innovations relating to free access to and from the seas for landlocked States. A comparative and evolutionary stroll from the Statute of Barcelona 1921 to the United Nations Convention on the Law of the Sea 1982, found that indeed, landlocked States are vested with the rights of access to the seas using the transit routes of their neighboring transit States. Regrettably, these rights seem to be more theoretical than practical as they are subject to the political whims and caprices of transit States. The enjoyment of these rights by landlocked States is contingent upon a successful negotiation between the concerned landlocked State and its transit State. The study further analyses the cogency of negotiating bilateral and/or multilateral agreements dealing with the question of transit for landlocked States. The study concludes that reciprocal negotiations with transit States have a crucial and irreplaceable role to play in giving practical effect to those rights.
The Peculiarities of Exercising State Jurisdiction at the High Seas
The high seas are not only one of the major areas of the world's ocean, but also a source of many lucrative resources, which may be used by all states, whether coastal or landlocked , under the freedom of the high seas which is a general principle of international law. However, the principle is not unconditional as the activities of states at the high seas are subject to the regulations prescribed under the United Nations Convention on the Law of the Sea (UNCLOS). Equality of states operating at the high seas leads to the exclusivity of the flag state jurisdiction and the principle of non-interdiction of its vessels. Nevertheless, UNCLOS foresees exceptions to the jurisdiction of flag states. The article analyses, inter alia, the preconditions of exercising flag state jurisdiction, the possibilities and peculiarities of non-state actor interference particularly regarding cases of piracy and pre-emptive self-defence.
The Persisting Problem of Non-compliance with the Law of the Sea Convention: Disorder in the Oceans
The International Journal of Marine and Coastal Law, 2012
There is widespread and persisting non-compliance in relation to many of the provisions of the UN Convention on the Law of the Sea. This is a matter of serious concern because it undermines the integrity and legitimacy of the Convention, causes disputes and harms the marine environment. To remedy the situation, more use should be made of existing mechanisms to induce compliance, especially the possibilities of compulsory dispute settlement under Part XV of the Convention, retorsion and countermeasures , and by developing compliance mechanisms for other treaties that indirectly help to promote compliance with the Convention. In some cases assistance in capacity building may also be desirable.
The Concept of Maritime Governance in International Relations
Intenrational Relations, 2019
The aim of the article 1 is the identification of components of maritime governance and evolution of the concept of maritime governance in contemporary International Relations. The main research questions are: what elements constitute the structure of maritime governance and why the role of maritime governance is increasing in the policy of super and regional powers. The answer to these questions will be used to verify the adopted hypothesis which indicates that maritime governance is a dynamic process consisting of interdependent areas of legal regulations, blue economy, security and environmental elements. Their horizontal and vertical interdependence and interrelation while dealing with oceans make maritime governance necessary instrument for super and regional powers to attain their interests. Based on the presented assumptions and purpose, the following structure of the article was adopted. The introduction highlights the role of oceans in the world affairs and presents research questions and hypothesis. In the second part of the article main stages of discourse on maritime governance are discussed and characterized, putting emphasis on the process of shaping its conceptual and terminological framework. Methodological differences and similarities in defining maritime governance are explored. The third part indicates the operational dimension of the concept of maritime governance, presenting the stages of the process of institutionalization of maritime cooperation between states. Finally, the case study of the Integrated Maritime Policy of the European Union is presented to serve as an exemplification of the modern maritime governance. The conclusion of the article contains answers to the research questions posed.
INTERNATIONAL LAW OF THE SEA; A BLEND OF LAW, POLITICS AND ECONOMICS
The Law of the Sea reflects the competing interests of Nations over the resources of the oceans since humanity first set forth upon the seas. The sovereign control over the oceans has been an ongoing concern prior to the 20th century under the concept of Mare Liberium and Mare Clausum. This principles developed and limited national rights and jurisdiction over a narrow band of water along a nations’ coast, with the rest of the sea free to all and belonging to none. With the technological developments of the 21st century which allows the exploitation of ocean resources that had never before been envisioned and accessible, there was a need to preserve the High Seas with its unimaginable rich resources as the common Heritage of Mankind. Nations began to negotiate their interests in the oceans and a universal regime known as UNCLOS III was agreed upon. These events display the fine blend of applied international law, politics and selfish economic interests as related in notable decisions of the ICJ. Today, there are new issues to be dealt with starting with pollution, the inevitable and intensive exploitation of high seas in the face of the 1994 Implementation Agreement, increasing jurisdictional claims amongst others. This research work analyses the making of UNCLOS III, dispute settlement mechanism, sustainable use of the oceans and the Nigerian Maritime Sector. This research work concludes with the arguments whether or not UNCLOS III has come to stay as the world legal order on the sea and proffer recommendations.
Maritime Sovereignty, Rights, and Cooperation
Coast Guards and Ocean Politics in the Arctic, 2019
Maritime issues have been climbing the political agendas since the early 2000s. This chapter explores the foundational background for how and why states acquired rights at sea in the first place, and how this fit with various conceptualisations of the maritime domain. It maps how states’ rights at sea came about more generally, and how the ocean differs from land in terms of sovereign rights and legal institutionalisation throughout the twentieth century. Concepts such as ocean governance, territorial waters, the EEZ and the continental shelf, as well as UNCLOS (Law of the Sea), are explained and discussed. Finally, this chapter turns to examine how and why states cooperate at sea, based on theories from the field of international relations.