James Kraska

This article considers the development and efficacy of maritime confidence-building measures (CBMs) to ensure safe and secure navigation in the region, and to reduce tension and prevent conflict. The 1982 United Nations Convention on the Law of the Sea (LOSC) and the 1972 International Regulations for Preventing Collisions at Sea (COLREG) are multilateral agreements that set forth legally binding obligations of all states. The 2014 Code for Unplanned Encounters at Sea (CUES) provides greater fidelity for duties of safe interaction at sea, but it is nonbinding. The two major powers signed in 2014 and 2015 a legally nonbinding Memorandum of Understanding (MOU) on the Rules of Behaviour for Safety of Air and Maritime Encounters. This article concludes that the nonbinding instruments are unlikely to enhance navigational safety or security, and in some respects, may even undermine it.

The use of advanced and emerging remote data-collection technologies, and in particular bio-logging of marine migratory species, raises fundamental questions about the scope of authority of coastal states to regulate marine scientific research in the waters under their jurisdiction. Bio-logging involves the attachment of devices to marine animals that collect and transmit data about their movements and aspects of the local marine environment, and is now routinely used by marine scientists to support conservation programs and augment oceanographic data collection. Tagged marine life, including seabirds, marine mammals, sea turtles and pelagic fishes, may interact unpredictably with the territorial seas and exclusive economic zones (EEZs) of numerous coastal states. This article explores the legal implications of bio-logging within the legal regime of marine scientific research in the law of the sea. Although bio-logging is a form of marine scientific research, when it is initiated outside a coastal state׳s jurisdiction it does not later fall within it, even if the tagged animals subsequently enters a coastal state׳s territorial sea or EEZ.

Incidents by suspected Russian submarines spying in Swedish and Finnish waters in 2014 and 2015, and the ample history of such incidents over the past sixty-five years involving Chinese, British, North Korean, American, and Soviet (and Russian) submarines, suggest undersea spying occurs with some regularity, yet the political and legal consequences are uncertain. While submarine intrusions into the territorial sea are not uncommon, the legal standards that govern such operations and the rights and duties of affected coastal states are murky. First, although it is apparent that submarine espionage violates the sovereignty of the coastal state in the territorial sea, it is unclear whether the operations are inconsistent with the law of the sea, or even international law more generally. Certainly undersea operations and spying in territorial waters without coastal state consent are not compatible with the regime of innocent passage in the law of the sea, but it is unclear whether they are lawful as “non-innocent” passage. Second, even if the affected coastal state has suffered a violation of its sovereignty, there is disagreement over lawful coastal state responses or countermeasures. Although the law of the sea recognizes coastal state prescriptive jurisdiction over vessels not in innocent passage in order to “require” them to leave the territorial sea, the authority to enforce such measures — especially against warships with sovereign immune status — is unresolved. Third, it is doubtful whether states may take recourse to forceful action or invoke the doctrine of self-defense against submarine intrusions, even though several states appear to have done so. These issues have particular salience in the Asia-Pacific region, where regional states are invested in development and expansion of submarine fleets. Sophisticated undersea technologies are entering service in states situated along an arc that stretches from the Persian Gulf and Indian Ocean in the west to Southeast Asia and Northeast Asia in the east. Many of these states, such as those surrounding the South China Sea, are engaged in fierce maritime disputes. The lack of consensus concerning the legal standards of submarine espionage, combined with a lack of operational naval acumen and simmering maritime rivalries, raises the risks of conflict. The Article presents a roadmap of legal issues associated with submarine espionage in the territorial sea, and the conclusions will tend to generate greater confidence, predictability, and stability at sea. While submarine espionage does not appear to be inconsistent with the law of the sea, espionage in the territorial sea is injurious to the sovereignty of the coastal state. In response to such incursions, coastal states may, without impinging on their sovereign immune status, require submarines to leave the territorial sea. The use of force in self-defense, however, may not be invoked by the coastal state to compel compliance.

Vessel anti-fouling is key to the efficient operation of ships, and essential for effective control of invasive species introduced through international shipping. Anti-Fouling Systems, however, pose their own threats to marine environments. The Anti-Fouling Convention of 2001 banned the use of organotin compounds such as Tributyltin, and created a system for adoption of alternative anti-fouling biocides. In 2011, the Marine Environmental Protection Committee of the International Maritime Organization (IMO) released guidelines on bio-fouling management record keeping, installation, inspection, cleaning, maintenance, design and construction. Though these Guidelines provide a template for more effective and environmentally sound anti-fouling control and implementation, they are not mandatory. This article proposes that the member states of the IMO adopt the 2011 Guidelines as a mandatory instrument.

The regime of straits used for international navigation is one of the central features of the United Nations Convention on the Law of the Sea (UNCLOS). Neither the United States nor Iran, however, are party to UNCLOS, and the two adversaries disagree about the application of the treaty to relations between them in the Strait of Hormuz. Iran claims that the generous navigational provisions in UNCLOS may only be enjoyed by states that are party to the Convention. The United States claims that the right of transit passage in UNCLOS is reflective of customary international law, and there-fore applicable to non-parties. Transit passage permits an unrestricted right to travel on the surface, under the water, or in over flight through international straits. The dispute is complicated by Iran’s claim to a territorial sea that is twelve nautical miles in width — another key provision of UNCLOS, which departs from the historic norm of three nautical miles. Iran claims that the twelve nautical mile territorial sea is now part of customary law, but rejects the notion that other states enjoy the right of transit passage. The two regimes, how-ever, are inseparable — Iran may not have a twelve nautical mile territorial sea, and yet disregard the rights of other states to exercise transit passage in the Strait of Hormuz.