Anthony Aust. Handbook of International Law

Подождите немного. Документ загружается.

18. See its website: www.ats.org.ar.

Page 360

Ccamlr

The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) 1980

was

established to deal with the problem of conserving fish stocks in the (cold and therefore rich) fishing

grounds of the Southern Ocean by promoting rational harvesting from an ecosystem and

precautionary perspective,

so distinguishing CCAMLR from other fisheries agreements concluded

before UNCLOS 1982 or the Fish Stocks Agreement 1995.

The Southern Ocean is the sea around

Antarctica up as far as the Antarctic Convergence (now termed the Antarctic Polar Front) where the

cold Antarctic waters meet the warmer northern waters. Since the Convergence is not a geographic

limit, and its position changes with the seasons, the area to which the Convention applies is defined

in the Convention by a line which ranges between 45° and 60° South, roughly corresponding to the

Convergence.

The Convention has thirty-one parties. Of these, twenty-four are members of the governing

Commission, and include Western European states (including Spain and the United Kingdom), the

European Community, Russia, Japan, South Korea, Argentina, Chile, the United States, South

Africa, Australia and New Zealand. The other seven are observers. The small but expert CCAMLR

Secretariat is based in Hobart, Tasmania, where each (Southern) spring the Commission meets to

adopt conservation measures binding on the members.

In common with other commissions regulating fishing, the work of the CCAMLR Commission is

bedevilled by illegal, unregulated and unreported fishing (IUU). The Commission has taken a

leading role in tackling these problems.

Since 2000, it has operated a Catch Documentation

Scheme for Dissostichus spp (a high-value fish known also as toothfish, or sea bass as it often

appears on menus) by which landing and trade in the species can be tracked. But, the area covered

by CCAMLR is vast and mostly high sea. So far, action by Australia, France and the United

Kingdom, in exercise of their coastal state jurisdiction in the EEZs or fishing zones around their sub-

Antarctic territories, has been the most effective in ensuring compliance with the conservation

measures. Islands within the Convention area ‘over which the existence of state sovereignty

19. 402 UNTS 71 (No. 22301); ILM (1980) 837; UKTS (1982) 48; TIAS 10240; B&B Docs. 628. See

www.ccamlr.org for the text and other documentation.

20. See p. 330 above.

21. See p. 321 above.

22. See pp. 319 et seq above on the general problems and how they are being tackled.

Page 361

is recognised by all contracting parties’ can be taken out of the normal application of the

Convention, so enabling coastal state jurisdiction – rather than only that of the flag state of the

vessel – to be used to enforce conservation measures.

In contrast, the lack of an enforcement

capability has led to severe depletion of the Dissostichus stock around South Africa’s Prince Edward

Island.

The Arctic

The North Polar Region, known more usually as the Arctic, is physically and legally quite unlike

Antarctica. The Arctic is not a continent: nuclear-powered submarines have travelled under the ice at

the North Pole. Nor is the Arctic defined. The Arctic Council deals with the ‘Arctic region’. But it is

reasonable to regard the Arctic as at least the area lying within the Arctic Circle, an imaginary line

drawn at latitude 66° 33' North. This area represents over one-sixth of the surface of the Earth, and,

unlike Antarctica, has a population of some four million, including many Inuit and other indigenous

peoples. The Arctic Council, established by the Ottawa Declaration of 19 September 1996, is not an

international organisation, but rather a forum where the states with territory in the area can discuss

matters of mutual concern and supervise projects, mostly to do with environmental protection and

the well-being of the indigenous peoples.

The representatives of these peoples are ‘permanent

participants’ in the Council. So far, the Council has not adopted any treaties, the Ottawa Declaration

and subsequent declarations being no more than MOUs.

Within the area is territory of the members of the Council (Canada, Denmark (Greenland),

Finland, Iceland, Norway, Russia, Sweden and the United States (Alaska)). Canada and Russia have

potentially the largest territorial claims. Their claims to sovereignty of uninhabited territory have

relied on the sector principle, rather than actual occupation.

Not being an accepted basis for

establishing sovereignty, sectoral claims have not been made by other members.

Any claim to

sovereignty over the

23. See Aust, pp. 189–90 and 196. On enforcement problems generally, see pp. 334-6 above.

24. The Secretariat is located in the Icelandic MFA: see www.arctic-council.org.

25. On which, see pp. 53-7 above.

26. See p. 355 above on sector claims for Antarctica.

27. See Oppenheim, pp. 692–3, and p. 38 above on occupation.

Page 362

ice covering the high seas could not in any event be sustained.

Even where territorial sovereignty

could be established, there would be difficult delimitation issues concerning continental shelves and

EEZs.

These could assume great importance given the potentially rich natural resources in the area

and its continuing strategic importance.

Svalbard

This is the name by which Spitsbergen is now officially known. It is an archipelago of islands lying

roughly between latitudes 74° and 81° North and longitudes 10° to 35° East. In the early years of the

twentieth century it was regarded as terra nullius,

but the Treaty of Spitsbergen 1920

recognized

Norwegian sovereignty over it. The Soviet Union recognised Norway’s sovereignty in February

1924 and became a party to the treaty in 1935, although Russia disputes fishing rights with Norway.

The treaty now has forty parties, including Albania and Venezuela. Article 9 states that neither naval

bases nor fortifications may be established on Svalbard and that the islands may not be used for

‘warlike purposes’. The parties’ nationals are entitled, subject to Norwegian conservation measures,

to have free access to Svalbard’s waters and ports, to own property and to hunt and fish on the basis

of equal treatment.

Canals

Baxter, The Law of International Waterways, Cambridge, MA, 1964

International straits have already been discussed.

We are here concerned with waterways, typically

canals, that have been dug in the territory of a single state, but because they join two parts of the

high seas are sometimes subject to a special legal regime for the benefit of all.

28. See p. 312 above on the high seas.

29. See p. 33 above on possible Danish claims relating to Greenland’s continental shelf.

30. See p. 38 above.

31. 2 LNTS 8; UKTS (1924) 18; ATS (1925) 10; or http://en.wikipedia.org/wiki/Svalbard/ (also includes

general information). See also G. Ulfstein, The Svalbard Treaty, Oslo, 1995.

32. In 1998, the annual Antarctic meeting was held at Troms , in northern Norway, and Svalbard, to the

puzzlement of some local people.

33. See p. 306 above.

Page 363

Suez Canal

Opened in 1869, the Suez Canal joins the Mediterranean Sea and the Red Sea. Its status was defined

by the Convention of Constantinople 1888.

Although the Canal lies entirely within Egypt, Article

1 provides that it ‘shall always be free and open, in time of war as in time of peace, to every vessel

of commerce or of war, without distinction of flag’. Other Articles provide in detail for its

neutralisation. The original parties to the Convention were the then leading European Powers:

Austria-Hungary, France, Germany, Italy, The Netherlands, Russia, Spain, Turkey and Great Britain.

In 1956, Egypt nationalised the Anglo-French Suez Canal Company that had operated the Canal.

Following the aggression by France, Israel and the United Kingdom and the withdrawal of their

forces, in 1957 Egypt made a unilateral declaration reaffirming that it would apply the provisions of

the Convention.

Given its clearly expressed purpose, the Convention has for long been regarded as

having created an objective regime, according to the vessels (including warships) of every state

freedom of navigation through the Canal at any time. In 1923, in The Wimbledon, the Permanent

Court of International Justice (the ICJ’s predecessor), in upholding the provision granting freedom

of navigation through the Kiel Canal at the time (see below), saw the Suez and Panama Canal

treaties as illustrations of the permanent dedication of an artificial waterway connecting two open

seas to the use of the whole world.

In Article (1) of the Egypt–Israel Peace Treaty of 1979,

Egypt confirmed that Israeli flag vessels, as well as cargoes destined for or coming from Israel,

would enjoy the same rights of freedom of navigation through the Canal as other states.

Despite a

few minor hiccups, those rights have been respected ever since.

Panama Canal

The Panama Canal runs between Colón and the city of Panama, joining the Atlantic and Pacific

Oceans. Under a 1903 treaty between the newly

34. For a detailed account and numerous references, see Oppenheim, pp. 592–5.

35. 171 CTS 241; 79 BSP 18. See also Whiteman, vol. 3, pp. 1076–130 (the text of the Convention is at p.

1081).

36. 265 UNTS 299 (No. 3821).

37. PCIJ, Ser. A, No. 1; 2 AD 99. See Brownlie, pp. 264–7, on the various possible bases for international

status.

38. 1136 UNTS 116 (No. 17813) and 1138 UNTS 72 (No. 17855); ILM (1979) 362.

39. Recent information from the Israeli Foreign Ministry.

40. For details and references, see Oppenheim, pp. 595–9.

Page 364

independent Panama and the United States, the latter was granted land for the construction and

operation of the Canal in perpetuity. Article 18 provided, in similar terms to that for the Suez Canal,

for the Canal to be neutralised and open at all times to the vessels of all states, as had previously

been provided in a UK–US treaty of 1901.

The Canal opened in 1914. The Panama–US Panama

Canal Treaties 1977

revised the arrangements pending the Canal coming under the sole control of

Panama on 1 January 2000, and confirmed the neutralised status of the Canal and freedom of

navigation through it.

Kiel Canal

The Kiel Canal (Nord-Ostsee Kanal) was opened in 1895 and extends for 96 kms through Germany

from Kiel to Brunsbüttel, connecting the Baltic Sea with the North Sea. No treaty or unilateral

declaration by Germany had accorded it any international status, but Article 380 of the (Versailles)

Treaty of Peace with Germany 1919

provided for freedom of navigation for all vessels of all states

not at war with Germany. Germany’s denunciation of this provision in 1936 appears to have been

acquiesced in by the other parties to the Treaty of Peace.

International rivers

Freedom of navigation

We have dealt with sovereignty over rivers that are the boundary of two or more states.

International rivers that are navigable from the sea are usually an important means of international

transport. Although the principle of freedom of navigation on them was declared by the Final Act of

the Congress of Vienna 1815, this is still not customary international law,

and the Barcelona

Convention and Statute on the Regime of Navigable Waterways of International Concern of 1921

has failed to obtain wide adherence.

But, over the years, various treaties granting

41. UKTS (1902) 6.

42. ILM (1977) 1021–98. See also ILM (1975) 1285 and ILM (1978) 817.

43. See Oppenheim, p. 595.

44. 225 CTS 188; UKTS (1919) 4.