INTERNATIONAL
LAW
W.B.
Fisch, Fall 2008
Assignment #21
Ch.
11. THE LAW OF THE SEA
A. The
High Seas
GROTIUS,
p. 688 (1633): a natural law theory of freedom of the seas
- Freedom of travel and trade among nations
- Property is based on possession
- The seas (like the air) can't be possessed because they
are limitless
- They are "marked out for common use"
- Therefore even building on the seabed near the shore is
impermissible if it impairs the common use of the seas for navigation
UNCLOS
1982 Part VII, p. 692
- Note the negative definition of the "high
seas", art. 86: everything that isn't
- Exclusive economic zone
of a State
- Territorial sea of a
State
- Internal waters of a
State
- Archipelagic waters of
archipelagic State
- Art. 87: how does this definition of the freedom of the seas
differ from Grotius?
- Overflight, cables,
scientific research?
- Constructing islands,
fishing, navigation?
- Prohibition against
claims of sovereignty?
B. Vessels
CASE
OF THE MUSCAT DHOWS, p. 696 (1905)
- Who is complaining here, about what practice?
- How did Great Britain become a party to the dispute?
- What principle of customary international law is
applied by the Tribunal to the question of whether France may allow Omani
dhows to fly the French flag?
- How does the Brussels treaty on the slave trade affect
the application of this principle?
- Is this a "genuine
link" requirement (cf. Nottebohm!)?
- Why was it important to
establish such a rule in relation to the slave trade?
- What is the effect of the French flag on the dhows'
relationship to the Iman?
LORD
DONALDSON'S REPORT, p. 698 (1994)
- How has the law of the flag changed, as it is expounded
by Lord Donaldson, from what it was in 1905?
- Does the new law provide effective regulation of ships?
- Are "flags of convenience"
still a problem?
- How might they be more
effectively controlled?
THE
M/V “SAIGA” (No. 2), p. 705 (Int.Trib.LOS 1999): does the absence of a
“genuine link”
invalidate the flag state’s jurisdiction, under UNCLOS art. 94, p. 707?