Browsing by Subject "ITLOS"

The codification of the law of the sea at the third United Nations Conference on the Law of Sea (UNCLOS III) was a significant development within that body of law. With it came the establishment of a sui generis area in the seas named the Exclusive Economic Zone (EEZ). Each coastal state can establish an EEZ up to 200 nautical miles from the baseline of which its territorial sea is measured. Within the new zone, the separation of activities that belong under the freedom of the high seas took place. Sovereign rights and jurisdiction over such activities as fishing, erecting artificial installations and marine scientific research were attributed to coastal states. While traditional freedoms of the high seas, such as navigation, were assigned to flag states. The attempt to create a compromise represents the latest solution to the classic conflict between the free sea (mare liberum) and the closed sea (mare clausum). However, making a new zone between the high seas and the territorial waters of coastal states left legal ambiguity with activities that are not explicitly attributed to the coastal state or the flag state. Two of those unattributed activities are bunkering and ship-to-ship transfers. The uncertainty involving the two activities has created disputes which have found their way to the International Tribunal for the Law of the Sea (ITLOS). In the cases of the M/V “Saiga” and M/V “Virginia G,” the activity of bunkering foreign fishing vessels was adjudicated at ITLOS. The three options available to the Tribunal were to attribute bunkering to the coastal state, the flag state, or deciding the activity based on equity. In M/V “Saiga,” ITLOS used judicial restraint and refused to settle the issue of bunkering, despite the request of both parties. However, the situation in the case of M/V “Virginia G” required a decision. Through arguments using the text of UNCLOS and the practices of coastal states, ITLOS decided the bunkering of foreign fishing vessels to be under the jurisdiction of the coastal state due to a connection with fishing. Bunkering in all other instances and arguments based on marine pollution were not considered. Currently, before ITLOS is the case of the M/T “San Padre Pio.” The unattributed activity of conducting a ship-to-ship transfer within the EEZ of a coastal state will be decided. An analysis of the argumentation utilized in earlier cases was used to predict the outcome of this dispute. The Tribunal will likely find a solution based on incompatible laws and will not have to categorize ship-to-ship transfers, thus leaving the activity’s attribution unsettled.