The High Seas

1. The High Seas • Read UNCLOS arts. 86-89. • What part of the oceans constitute the “high seas”? • Which states have the right to sail registered vessels on the high seas? • In general, what activities are prohibited on the high seas?

2. The Deep Sea Bed (DSB) The Deep Sea Bed Regime under UNCLOS UNCLOS declared the DSB to be “the common heritage of mankind” art. 136. Development should be carried out “for the benefit of mankind as a whole…taking into particular consideration the interests and needs of developing States….” art.104 The DSB articles created a wealth sharing regime for deep sea-bed mining, arts. 133-191. All of the DSB was to be controlled by the International Sea-Bed Authority. A system of “parallel access” was created with mandatory technology transfer from the developed to the developing states with expensive application and annual fees for those states engaged in DSB mining. Several developed states did not agree with these provisions, including the US and refused to become parties to UNCLOS without major changes to the DSB regime.

3. DSB continued • The Deep Sea bed Regime under the 1994 Agreement • For a while, there was a stalemate and many predicted that UNCLOS would never enter into force (60 ratifications needed, art. 308) but when UNCLOS did enter into force in 1994, the UN Secretary General called a conference to iron out differences. What emerged was the 1994 Agreement Relating to the Implementation of Part XI of UNCLOS, which went into force in 1996. This Agreement modifies UNCLOS to the extent that it differs from UNCLOS. The new Agreement alters the decision making process in various Sea-Bed institutions and limits the Sea-Bed regime to the period until DSB mining becomes economically viable and then bases the regime largely on free-market principles. It also alters the fees and revenue structure.

4. Settlement of Maritime Disputes • Read UNCLOS arts. 286-298. • UNCLOS contains mandatory dispute settlement mechanisms for disputes that arise out of the application or interpretation of the Convention. Parties to disputes have a variety of fora in which to settle their differences. They can choose the ICJ, or ITLOS, or a specialized arbitral tribunal. There are articles that resolve which fora will be available where the disputing states have opted for different dispute settlement mechanisms.

5. Marine Pollution • This area of concern is governed by a number of treaties that have usually come into existence in the wake of a crisis covering such areas as oil spills, dumping of refuse, and nuclear waste. UNCLOS imposes a series of obligations on states, see arts. 192-222.

6. Fishing • In general, states are free to fish on the high seas but there has been a decimation of fish stocks, particularly fish that spend part of their lives in an EEZ and part of their lives in the high seas. Coastal states could protect such fish while they were in the EEZ but not while they were in the high seas. This concern has resulted in a new treaty on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Species which entered into force in 2001. and which seeks to manage the conservation and limit the allowable catch of these species of fish.