INTERNATIONAL LAW
W.B. Fisch, Winter 2003
Assignment #29
Ch. 11. THE LAW OF THE SEA
A. The High Seas
GROTIUS, p. 641 (1633): a natural law theory of freedom of the seas
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Freedom of travel and trade among nations
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Property is based on possession
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The seas (like the air) can't be possessed because they are limitless
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They are "marked out for common use"
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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. 644
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Note the negative definition of the "high seas", art. 86: everything that
isn't
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Exclusive economic zone of a State
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Territorial sea of a State
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Internal waters of a State
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Archipelagic waters of archipelagic State
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Art. 87: how does this definition of the freedom of the seas differ
from Grotius?
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Overflight, cables, scientific research?
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Constructing islands, fishing, navigation?
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Prohibition against claims of sovereignty?
B. Vessels
CASE OF THE MUSCAT DHOWS, p. 647 (1905)
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Who is complaining here, about what practice?
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How did Great Britain become a party to the dispute?
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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?
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How does the Brussels treaty on the slave trade affect the application
of this principle?
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Is this a "genuine link" requirement (cf. Nottebohm!)?
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Why was it important to establish such a rule in relation to the slave
trade?
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What is the effect of the French flag on the dhows' relationship to the
Iman?
LORD DONALDSON'S REPORT, p. 649 (1994)
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How has the law of the flag changed, as it is expounded by Lord Donaldson,
from what it was in 1905?
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Does the new law provide effective regulation of ships?
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Are "flags of convenience" still a problem?
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How might they be more effectively controlled?
THE M/V “SAIGA” (No. 2), p. 654 (Int.Trib.LOS 1999): does the absence of
a “genuine link”
invalidate the flag state’s jurisdiction, under UNCLOS art. 94, p.
658?