South Asian University. Faculty of Legal Studies. Semester _3_ in Course Information

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1 South Asian University Faculty of Legal Studies Semester _3_ in 2017 Course Information Part I Course Title: Law of the Sea Course Code: LW 034 Course instructor: Course Duration: Dr. V.G.Hegde / Dr.Srinivas Burra One Semester Credit Units: 4 Medium of Instruction: Prerequisites: Precursors: Equivalent Courses: English Nil Nil N/A

2 Part II Course Aims From an international law perspective, the course would look at: development of the law of the sea as one of the oldest areas of international law; efforts of the international community towards the adoption of the four Geneva Conventions Convention on Territorial Sea, Contiguous Zone, High Seas and Continental Shelf 1958; a bird s eye view of the three Law of the Sea Conferences leading to the adoption of the United Nations Convention on the Law of the Sea (UNCLOS) 1982; The course on the Law of the Sea will strive to introduce students to a study of the different maritime areas under UNCLOS and attendant rights and duties of States, such as internal waters and baselines, reefs; drawing of straight baselines; Bays-definition of curved/indented bays, historic bays; Territorial Sea-the breadth and delimitation of territorial sea, right of innocent passage, rights and duties of coastal States, civil and criminal jurisdiction of coastal States in relation to coastal ships, warships and innocent passage; Contiguous Zone; Straits used for International Navigation- the Corfu Channel Case, ICJ Reports 1949; International Legal Regime of the Continental Shelf; International Legal Regime of EEZ - the concept of EEZ under UNCLOS and rules of international customary law; Maritime boundary delimitation Aspects covered would include select ICJ judgements, arbitral awards, ITLOS judgements highlighting the delimitation criteria provided in Article 74 and 83 of UNCLOS, the natural prolongation rule, equidistance principle and relevant/special circumstances; Regime of the High Seas, Piracy and the changing concept of piracy in the light of some recent developments. The Course will also deal with a number of other aspects relevant to the Law of the Sea which among others include: Protection and Preservation of the Marine Environment; Regime of Marine Scientific Research; Deep Seabed Mining- historical evolution of the concept of common heritage of mankind and Arvid Pardo s contribution to the protection of concept of deep seabed under Part XI of the UNCLOS regime, International Seabed Authority, pioneer investor scheme, its categories and the establishment of the Preparatory Commission, Provisional Understanding of 1984 and subsequent Understandings on Conflict resolution of Seabed Disputes; Dispute Settlement Mechanism under UNCLOS, jurisprudence of ITLOS;

3 Objectives of the Course The Course on the Law of the Sea is being offered for LL.M students with the following objectives: To understand the historical and theoretical underpinnings of the development of the law of the sealeading to the adoption of the Geneva Conventions on the Law of the Territorial Sea, Continental Shelf, Contiguous Zone and the High Seas, 1958 and the first UN Law of the Sea Conference. To study the adoption of the UN Convention on the Law of the Sea and its various provisions which is a corpus of international law often regarded as a constitution of the oceans ; and To equip students with a sound understanding of complex issues involved in the study of the Law of the Sea and the jurisprudence evolved by judgements of the ICJ, International Tribunal for the Law of the Sea, arbitration tribunals etc. Week 1 History of the Law of the Sea Historical evolution of regulation of maritime affairs from Grotius Mare Liberam to Selden s Mare Clausum- to present times. Week 2 Introduction to United Nations Convention on the Law of the Sea, 1982 Introduction to the United Nations Convention on the Law of the Sea (UNCLOS) 1982 and reasons why it is regarded as the constitution of the oceans. A general backdrop of maritime zones will also be provided. Week 3 Baselines Legal and other factual complexities involved in drawing baselines; Anglo-Norwegian Case Week 4 Territorial Sea breadth of the territorial sea, delimitation of territorial sea, right of innocent passage, rights and duties of coastal States, civil and criminal jurisdiction of coastal States in relation to coastal ships, warships and innocent passage and relevant judgements of the ICJ/Tribunals.

4 Week 5 Straits used for International Navigation Corfu Channel Case, ICJ (1949), treatment of Straits under the Geneva Convention 1958 and UNCLOS 1982; interest of coastal States and maritime powers, types of straits, transit passage, duties of ships and aircrafts; straits and innocent passage; Week 6 Archipelagoes and Islands Difference between Archipelagic states and Archipelagoes, Archipelagoes and straight baselines, innocent passage through archipelagic waters, definition of archipelagic sea lanes, legal status of mid-ocean archipelagoes. Week 7 Exclusive Economic Zone (EEZ) and Continental Shelf Concept of Continental Shelf and Exclusive Economic Zone under UNCLOS 1982; outer limits of continental shelf and EEZ; formulae for measuring the continental margin; Rights conferred on Coastal States to explore, exploit, conserve and manage EEZ resources. North Sea Continental Shelf Cases Week 8 Maritime delimitation of boundaries Delimitation of the maritime areas based on criteria such as: ascertaining whether there is any pre-existing agreement relating to delimitation; delimiting the territorial sea when requested by applying the equidistance-special circumstances rule; and delimiting the continental shelf/eez applying the equitable principle-relevant circumstances rule. study of the jurisprudence developed by ICJ judgements, arbitral awards and ITLOS judgements on disputes pertaining to delimitation of maritime zones. Some of the important cases to be discussed, among others would include- Anglo-Norwegian Fisheries Case; ICJ 1951, North Sea Continental Shelf Cases ICJ 1969, Anglo-French Arbitration Case ; Nicaragua-Honduras ICJ 1987; Qatar-Bahrain Case ICJ 1993;; Jan-Mayen Conciliation Commission 1981 (Iceland and Norway); Tunisia-Libya Continental Shelf Cases (ICJ 1982);Gulf of Maine Case (ICJ 1984), Libya-Malta Continental Shelf Case (ICJ 1985), Volga Case ITLOS, 2002; Bangladesh- Myanmar case ITLOS 2012, Bangladesh-India PCA Case 2014 etc.

5 Week 9 Protection and Preservation of the Marine Environment Protection and preservation of the marine environment, due diligence obligations and legislation to prevent, reduce and control pollution, forms of marine pollution and attendant international/regional treaty regimes including UNEP Regional Seas Programmes- pollution from land-based sources, pollution from sea-bed activities, pollution from activities in the Area, pollution by dumping, pollution from or through the atmosphere, pollution from vessels, provisions on enforcement, sovereign immunity, responsibility and liability, Week 10 Regime of Marine Scientific Research Need for marine scientific research, scope and nature of marine scientific research, international legal regime-geneva Conventions on the Law of the Sea 1958 and UNCLOS 1982, jurisdiction over marine scientific research in various maritime zones-internal waters, territorial waters, contiguous zone, EEZ and continental shelf and high seas, Area beyond the limits of national jurisdiction, rules regarding deployment of research installations or equipment in marine scientific research, responsibility and liability, Week 11 Deep Seabed Mining Historical evolution of the concept and Arvid Pardo s concept of deep seabed as the common heritage of mankind, UNCLOS regime-part XI, International Seabed Authority, pioneer investor scheme, its categories and the establishment of the Preparatory Commission, Provisional Understanding of 1984 and subsequent Understandings on Conflict resolution of Seabed Disputes and the PREPCOM Agreement of 1994 will be discussed. A study of the SAARC countries maritime legislation on deep seabed mining will also be discussed. Week 12 Dispute Settlement Procedures under UNCLOS 1982 Dispute settlement procedures under UNCLOS and discussion of some cases judgements/decisions of international tribunals Week 13 Presentations

6 Reading List Books *Anand RP, (ed), Law of the Sea Caracas and Beyond, (The Hague: Martinus Nijhoff, 1980). Anand R.P., Origin and Development of the Law of the Sea (The Hague: Martinus Nijhoff, 1983). Brown E.D., The International Law of the Sea: Volume I &II, (Aldershot, England: Dartmouth Publishing Company, 1994). Brown E.D and Churchill R. R., (eds.), The UN Convention on the Law of the Sea: Impact and Implications (Honolulu: Law of the Sea Institute, 1987). * Churchill R.R and Lowe A.V., The Law of the Sea, (Manchester University Press, 3 rd Edition 1999). Dupuy, Rene-Jean., The Law of the Sea: Current Legal Problems (Dobbs Ferry New York: Oceana Publications, 1974). Freestone David (ed.), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (Leiden, Nijhoff, 2013). *Freestone David, Barnes R. and Ong D, (eds.), Law of the Sea: Progress and Prospects (Oxford: Oxford Publications, 2006). McDougal, Myres S and Burke William P., The Public Order of the Oceans: A Contemporary International Law of the Sea (New Haven: Yale University Press, 1962). Nandan Satya N, Rosenne Shabtai and Nordquist Myron H., United Nations Convention on the Law of the Sea; A Commentary, VI Volumes, (The Hague: Martinus Nijhoff, 1995). *O Connell Daniel. P., The International Law of the Sea (Oxford, London: Clarendon Press, 2 vols., 1982 and 1984). Rao Chandrashekhara P., The New Law of Maritime Zones, with Special Reference to India s Maritime Zones (New Delhi: Milind Publications, 1983). Rao Sreenivasa P., The Public Order of Ocean Resources: A Critique of the Contemporary Law of the Sea (Cambridge: MIT Press, 1975). Elisa Morgera, Matthias Buck, Elsa Tsioumani (eds.), The Law of the Sea: A Before and an After Nagoya? (Leiden, Nijhoff, 2013). Scheiber Harry N., and Jin-Hyun Paik (eds.), Regions, Institutions, and Law of the Sea : Studies in Ocean Governance (Leiden, Nijhoff, 2013).

7 Sharma O.P., The International Law of the Sea: India and the UN Convention of 1982(New Delhi: Oxford University Press, 2009). Symmons Clive R., (ed.) Selected Contemporary issues in the Law of the Sea (Leiden: Nijhoff, 2011) Tams Christian J., and Sloan James., The Development of the Law of the Sea by the International Court of Justice (Oxford, Oxford University Press, 2013). * Suggests mandatory readings. Articles Alexander Lewis M., Baselines Delimitations and Maritime Boundaries, Virginia Journal of International Law, vol.23, (1983), pp Allot, Philip, Power Sharing in the Law of the Sea, American Journal of International Law, vol.77, (1983), pp Borgese Elizabeth Mann, The New International Economic Order, San Diego Law Review, vol.17, (1977), pp Casteneda Jorge, The Concept of Patrimonial Sea in International Law, Indian Journal of International Law, vol.12, (1972), pp Del Vecchio Angela (ed.), International Law of the Sea: Current Trends and Controversial Issues (Eleven International Publishing, The Hague, 2014.) Dyke Jon M. Van., Applying the Precautionary Principle to Ocean Shipment of Radioactive Materials, Ocean Development and International Law, vol.38, (1996), pp , The Disappearing Right to Freedom of Navigation in the Exclusive Economic Zone, Marine Policy, vol.29, (2005), pp Francesco Francioni, The Status of the Gulf of Sirte in International Law, Syracuse Journal of International Law and Commerce, vol.11, (1984), pp Friedman Wolfgang, The North Sea Continental Shelf Cases- A Critique, American Journal of International Law, vol.64, (1970), pp Gold Edgar, International Shipping and the New Law of the Sea: New Directions for a Traditional Use, Ocean Development and International Law, vol.20, (1988), pp Jagota S.P., Maritime Boundary, Recueil Des Cours, vol. 257, (1981), p.81. Jennings RY, The Limits of the Continental Shelf Jurisdiction: Some Possible Implementation of the North Sea Case Judgement, International and Comparative Law Quarterly, vol.18, 1969, p.828

8 Jensen Øystein, The Commission on the Limits of the Continental Shelf: an Administrative, Scientific, or Judicial Institution?, Ocean Development and International Law, vol. 45, (2), (2014), pp Kałdun ski Marcin and Wasilewski Taduesz, The International Tribunal for the Law of the Sea on Maritime Delimitation: The Bangladesh v. Myanmar Case, Ocean Development and International Law, vol. 45, (2), 2013, pp Mensah Thomas A., The Place of the International Tribunal for the Law of the Sea in the International System for the Peaceful Settlement of Disputes, Indian Journal of International Law vol. 37 (1997), p. 466 Nordquist Myron H., Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks, International Journal of Marine & Coastal Law vol. 14 (1999), pp , The Gabcíkovo-Nagymaros Case: New Law in Old Bottles, Yearbook of International Environmental Law vol.8, (1997), pp , The International Tribunal for the Law of the Sea and the Protection and Preservation of the Marine Environment, Review of European Community and International Environmental Law, vol. 8, (1999), pp Oda, Shigeru, Some Reflections on Recent Developments in the Law of the Sea, Yale Journal of International Law vol. 27, (2002), pp Oxman, Bernard H., International Decisions - The M/V Saiga - First judgment by International Tribunal for the Law of the Sea, applying new procedure for prompt release on bond of detained vessel and crew, American Journal of International Law vol.92, (1998), p Pardo Arvid, Who will Control the Seabed, Foreign Affairs, vol.47, (1968), pp Rosenne, Shabtai, Establishing the International Tribunal for the Law of the Sea, American Journal of International Law, vol. 89 (1995), p Clive H. Schofield, Anastasia Telesetsky and Seokwoo Lee, A Tribunal Navigating Complex Waters: Implications of the Bay of Bengal Case, Ocean Development and International Law, vol. 44, (no.4), (2013), pp Scovazzi Tullio., Evolution of the International Law of the Sea,Recueil Des Cours, vol. 286, (2000), pp Sohn, Louis B., Settlement of Law of the Sea Disputes, International Journal of Marine and Coastal Law vol. 10, (1995), pp

9 Sharma O.P., Enforcement Jurisdiction in the Exclusive Economic Zone: The Indian Experience, Ocean Development and International Law, vol.24, (1993), pp , India and the United Nations Convention on the Law of the Sea, Ocean Development and International Law, vol.26, (1995), pp Treves, T., Conflicts between the International Tribunal for the Law of the Sea and the International Court of Justice, NYU Journal of International Law and Politics, vol. 31 (1999), pp , UNCLOS at Thirty: Open Challenges, Ocean Yearbook, vol. 27, (2013), pp , The International Tribunal for the Law of the Sea and Other Law of the Sea Jurisdictions (2012), The Italian Yearbook of International Law, vol. 22, (2012), pp "Vukas Budislav, The International Tribunal for the Law of the Sea: Some Features of the New International judicial Institution, Indian Journal of International Law, vol. 37, (1997), p.372 Yankov Alexander, The International Tribunal for the Law of the Sea: It s Place within the Dispute Settlement System of the UN Law of the Sea Convention, Indian Journal of International Law vol. 37, (1997), p ***********