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M. Bob Kao

Abstract

The rise of Somali piracy in the beginning of the 21st century led to a swift response by the international community. Suspects were arrested by naval forces in the high seas exercising universal jurisdiction. As there is no international tribunal for maritime piracy, the suspects were prosecuted in national courts using domestic laws. The United States prosecuted a handful of cases using its piracy statute passed in 1909, which incorporates international law but prescribes mandatory life imprisonment for those convicted. Although the definition of the crime of piracy in the United States evolves along with developments in international law, the punishment is an outlier that deviates from global norms. This article argues that the punishment for piracy in the United States must also evolve with international practice because a changing definition of a crime coupled with a fixed punishment may lead to rule of law violations and other undesirable results.

Stuart Kaye

Abstract

The Annex VII Tribunal in the South China Sea Arbitration placed a high threshold on States seeking to claim an exclusive economic zone (EEZ) around small features. The implications of such an interpretation are potentially significant for the maritime jurisdiction of a number of States, particularly in the Pacific. This article considers the implications of the decision of the Tribunal, and applies it to Kiribati as a case study. It also considers possible ways States may minimize the risk associated with the Tribunal’s interpretation.

Kris Van Nijen, Steven Van Passel, Chris G. Brown, Michael W. Lodge, Kathleen Segerson and Dale Squires

Abstract

In July 2015, the Council of the International Seabed Authority (ISA) adopted seven priority deliverables for the development of the exploitation code. The first priority was the development of a zero draft of the exploitation regulations. This article focusses on the second priority deliverable, namely the development of a payment mechanism for exploitation activities, following detailed financial and economic models based on proposed business plans. Between 2015 and 2017, five workshops have been organised with 196 active participants from 34 countries. The results so far are synthesised, drawing upon the outcome of these workshops, ISA technical papers, and the scholarly literature.

Robin Churchill

Abstract

This is the latest in a series of annual surveys in this Journal reviewing dispute settlement in the law of the sea, both under Part XV of the UN Convention on the Law of the Sea and outside the framework of the Convention. It covers developments during 2018. The most significant developments during the year were the judgment of the International Court of Justice in Costa Rica v. Nicaragua, delimiting the maritime boundaries between the two States’ overlapping maritime zones in both the Caribbean Sea and the Pacific Ocean; the report of the Conciliation Commission concerning maritime boundary arrangements between Timor-Leste and Australia; and the findings of a dispute settlement body of the South Pacific Regional Fisheries Management Organization.

Drifting Fish Aggregating Devices (FADs)

Deploying, Soaking and Setting – When Is a FAD ‘Fishing’?

Quentin Hanich, Ruth Davis, Glen Holmes, Elizabeth-Rose Amidjogbe and Brooke Campbell

Abstract

This article describes the proliferation of drifting fish aggregating devices (FADs) and analyses subsequent legal questions that arise for fisheries and marine litter management over who is responsible for FADs during their drifting stage. This follows recent concerns about unlicensed FADs drifting through closed areas. This article analyses a case study of the Western and Central Pacific Fisheries Commission (WCPFC) in order to determine State obligations to manage drifting FADs. Analysis concludes that a drifting FAD in the WCPFC Area is ‘fishing’ from deployment to recovery, thereby creating obligations to monitor, control and report drifting FADs, consistent with broader obligations for coastal and flag States. The article recommends strengthening regional management in three ways: implement regional drifting FAD monitoring systems; control deployment of drifting FADs so as to promote recovery and minimize lost gear; and define appropriate responses for FADs that drift into national or closed waters without a license.

Daria Shapovalova-Krout

Abstract

Discovery of petroleum resources in Arctic waters and the rapid loss of sea ice raise concerns over environmental risks of oil development in Arctic waters. One of the biggest threats to the marine environment from offshore oil production is a large-scale oil spill, akin to Deepwater Horizon. The challenging operating conditions, lack of infrastructure and effective clean-up techniques in the Arctic conditions exacerbate the need to ensure robust regulation of petroleum activities in the region. Whereas national laws vary extensively across the Arctic States, international law does not offer a uniform approach to prevention of and response to oil spills. This paper examines the scope and application of the relevant treaties and argues that a regulatory gap exists in the prevention of oil spills and addressing the challenges of response in Arctic conditions. It further suggests that there is an increasing role for soft-law regional cooperation in addressing these gaps.