S330 Oceanography
Block 7: Case Studies in Oceanography and Marine Affairs
Contents
CHAPTER 1 MARINE RESOURCES AND ACTIVITIES
THE SEA ITSELF
Transport and communications
LIVING RESOURCES
Fishing methods
Overfishing
The problems of reaching agreement
Pollution
PHYSICAL RESOURCES
Continental shelves
The deep ocean
ENERGY FROM THE OCEANS
MARINE RESEARCH
THE BASIS OF INTERNATIONAL REGULATION
A RECIPE FOR CHAOS?
CHAPTER 2 THE LEGAL BACKGROUND
EVOLUTION OF BASIC CONCEPTS
20TH-CENTURY DEVELOPMENTS
Convention on the Territorial Sea and the Contiguous Zone
Convention on the Continental Shelf
Convention on the High Seas
Unilateral claims outside the 1958 Conventions
THE AEGEAN
CHAPTER 3 THE PRESENT INTERNATIONAL LEGAL REGIME
UN CONVENTION ON THE LAW OF THE SEA
The Conference
The Convention
Comparison with 1958
OTHER CONTRIBUTIONS TO MARITIME CUSTOMARY LAW
DISPUTES AND THEIR RESOLUTION
Rocks or islands?
A LOOK AHEAD
CHAPTER 4 THE ARCTIC OCEAN: ICE, OIL AND SOVEREIGNTY
HUMAN SETTLEMENT AROUND THE ARCTIC
Early migrations
Present-day circumpolar peoples
THE ARCTIC SEAS - WHO OWNS WHAT?
The sector theory
The waters of the Canadian Arctic Archipelago
HYDROCARBONS IN THE ARCTIC
Prospecting for oil in ice-infested waters
Economic considerations
The danger of pollution
The 'fragile Arctic' and oil pollution
Other sources of pollution
THE NORTH-WEST PASSAGE
The Manhattan incident
Consolidation of Canada's title to the archipelagic waters
THE ARCTIC AND CLIMATIC CHANGE
The growth and decay of ice-caps
Implications for maritime traffic
Legal implications
THE POLAR MEDITERRANEAN: WHAT DOES THE FUTURE HOLD?
CHAPTER 5 THE GALAPAGOS: ISLANDS OF VARIETY AND CHANGE
THE TECTONIC SETTING
THE OCEANOGRAPHIC SETTNG
LIFE AROUND THE GALAPAGOS
THE GALAPAGOS AND EL NINO
El Nino - Southern Oscillation (ENSO) events
The ENSO event of 1982-83
The 1982-83 ENSO event in and around the Galapagos
GALAPAGOS CORALS: A CLUE TO PAST CLIMATE
EXPLORATION, EXPLOITATION AND CONSERVATION: CHANGING ATTITUDES
Buccaneers, whalers and settlers
The Galapagos Marine Resources Reserve
Wider perspectives
TABLES
SUMMARY OF THE UN CONVENTION ON THE LAW OF THE SEA
THE COD WAR IS NOT ONLY ABOUT FISH
Back to OU
SUMMARIES
CHAPTER 1
The possession or lack of marine 'space' has done much to condition national attitudes and aspirations and has been a jajor influence on the political geography of the world. This is cheifly because throughout human history the most important use of the sea has been for transport, trade, warfare and communications as well as fishing.
Humanity's oldest marine activity is fishing. About three-quarters of the global catch is taken in coastal and continetnal shelf waters. Fish are caught in different ways depending upon whether they are demersal or pelagic, shallow or deep water species. Improved technology has increased the range and size of fishing vessels and the tonnage of the catch; and overfishing is a growing threat to the marine harvest. Agreements to control fishing ar enot easy to reach, because different countries have different degrees of dependence on their fishing industries.
Commercial fish and the ecosystems of which they are part are also under growing threat from pollution of many kinds, which has shown an almost exponentail incrfease in amount and variety during the 20th century, with great influxes of heavy metals, organochemicals, radionuclides, hydrocarbons, and so on. Many artificial substances have natural counterparts, but he rates at which they are added to the oceans and how they react with organisms in the marine environment are the main factors which determine their behaviour as pollutants.
Seawater itself is an important physical resource, not only for the freshwater obtained by desalination, but also for the dissolved substances in it, notably common salt, magnesium, bromine and other elements. The extraction of valuable trace elements (eg gold) would require huge volumes of wate to be processed, and is not economically feasible.
The physical resources of continental shelves comprise both surface and sub-surface accumulations. Surface accumulations include sands and gravels, place deposits of heavy minerals and cehmically precipitated limestone and phosphorite. The principal sub-surface resources are hydrocarbons in teh form of offshore oil and gas fields.
The deep sea has not so far been tapped for its sea-bed resources, but these are enormous. Best known are metal-rich manganese nodules, but there are also sulphide stockworks within oceanic crust, formed beneath hydrothermal vents along ocean ridges; and metal-rich muds in axial deeps of the REd SEa. Exploitation of any of these deposits would cause considerable environmental disruption.
Extracting useful energy from the oceans presents difficulties, and only relatively small amounts of the enormous quanities potentially available have so far been tapped, chiefly in tidal power projects. The main difficulty is that the oceans represent a relatviely 'dilute' energy source compared with (for example) hydrocarbons, and large-scale power generation would require correspondingly large-scale installations.
Marine scientific research is now more important than ever before, and it is also more international both in scope (with the help of satellite technology) and organization (TOGA, WOCE, etc) However, as national attitudes and vested interests of coastal states lead to the imposition of stricter controls on navigation almost everywhere except in the open oceans, the logistics of shipborne marine research have become progressively more difficult.
While it may be conventient to recognize a dichotomy between maritime activies on the one hand (transport and communications) and tangible marine resources on the other (living and physical resources, energy), the distinction is less useful when it comes to regulation, because resources are of no use unless they can be exploited and that is also an activity. The uneven distribution of both living and physical resources in relation to political geography, however, makes regulation difficult. It may also be important to distinguish those resources which are renewable (mainly biological) from those which are not (mainly 'physica;'). Any international system of regulation - a Law of the Sea - must deal adequately with all these variables.
Analogies can be drawn between territory on land and 'maritime' territory. Nations have sought to conquer and exploit distant seas in the same way as they conquered and exploited distand lands, although it was often only necessary to claim seas not already 'occupied' or claimed by others. But it is more difficult to defend maritime 'territory' against othappropriation by another power than it is to defend land areas; and there is abundant scope for argument and even open warfare between adjacent coastal states. As the range of activities and resources has expanded in the marine environment during he 20th century, the need for an international Law of the Sea has become overwhelming.
CHAPTER 2
Until the 19th century, it was largely the ability to enforce maritime 'territorial' claims militarily that determined the outcome, as exemplified by teh cannon-shot rule. In general, the concept of res mullis (mare clausum) was effective only where it could be maintained by force. Where ic could not, res comminis (mare liberus) prevailed. However, there was a long and fairly well-established distinction between the (typically) three-mile wide territorial sea, over which coastal states could claim near-total control (subject only to rights of innocent passes), and the high seas, where there was virtually complete freedom of navigation.
During the 19th and (especially) the first half of the 20th century, there was some progress from this basic situation to one in which it was proposed that a uniform rule of law should govern the majority of peacetime acrivities at sea. The first UN Conference on the Law of teh Sea, in 1958, adopted four Conventions: on the Territorial Sea and Contiguous Zone; on the Continental Shelf; on the high Seas; and (unsuccessfully) on Fishing anc Conservation. Two other Conferences were convened, in 1960 and 1973, and the UN Convention on the Law of the Sea (UNCLOS) was opened for signature in 1982.
Convention on the Territorial Sea: The width of the territoral sea generally ranges from three to (typically) twelve miles, though in some cases 200-mile limits have been claimed. One difficulty of establishing the distance of the territorial sea boundary from shore lies in defining the basline from which to measure it. Internal waters (where the state's jurisdiction is complete) lies within the baseline; the territrial sea (where there is right of innocent passage) begins outside it. Rules were established for dealing with bays including legal bays and historic bays, with islands; with river mouths, low-tide elevations, harbour works and so on. The rules have been interpreted liberally by some states, leading to inordinately large areas claimed for internal waters and the territorial sea. Straits present particular problems where they are narrower than the combined widths of adjacent territrial seas and may be designated international straits. A contifuous zone (declared by a minority of states) lies adjacent to the territorial sea; in this zone, the coasta state has partial jurisdiction.
Convention on the Continental Shelf: This Convention covers the sea-bed and sub-soil of the continental shelf, but not the superadjacent waters. Problems of definition are even more formidable than with the Convention on the Territorial SEa. The legal continental shelf is not the same as the 'geological' continental shelf. The legal definition has to contend not only with natural variability (eg variations in the distance to the shelf break and water depth), but also with the technological ability of states to exploit shelf resources.
Convention on the High Seas: The high seas are the simplest maritime zone to define. The Convention deals mainly with limitations to complete freedom of navigation, with rules governing nationality and registration of vessels, piracy, 'hot pursuit', etc.
Many unilateral claims outside the UN Conventions were made in the decades following World War II, mostly concerned with fishing. 200-mile exclusive fishing zones were claimed by many nations. Other nations included shelf resources and research activities by foreign nationals, as well as fishing, in the scope of their 200-mile exclusive zones. These claims were effectively the precursors of the exclusive economic zones to be discussed.
CHAPTER 3
Three geographical categories of states may be identified (island, coastal and land-locked), but within these categories teh importance of the sea to a particular nation depends also on socio-economic factors such as population and degree of development. Differences between states in the different categories also determine the relative importance of the three principal maritime roles: mercantile (trading, shipping), resource-oriented (fishing, hydrobarbons), or stretagic (navies).
UNCLOS has not yet come into force. Many of the provisions of the previous (1958) Conventions have become part of cusomary law, which in turn fed back into UNCLOS. Similarly, at least some parts of UNCLOS have some value as customary law, even though the 1982 Conference failed to achieve consensus and thereafter a number of major developed countries refused to sign it. The number of states that have formally ratified the Convention was still well below the required minimum of 60 in 1991.
UNCLOS itself is a comprehensive update in the light of developments since the first UN Conference in 1958. It attempts to establish a unified international legal regime for all maritime purposes, sets out general principles and provides a framework for development of other more specialized agreements (the umbrella function); and it is thus more than a piecemeal revision exercise.
Principal points are:
(a) Coastal states can claim a twelve-mile zone comprising territorial sea plus contiguous zone. The coastal state has virtually complete jurisdiction over all activities in these zones, but mus preserve the right of innocent passage. The concept of transit passage is introduced to cope with international straits.
(b) The introduction of the exclusive economic zone (EEZ), extending 200 miles from shore (188 miles from the territorial sea boundary), is one of the two most important developments (see also (d) below). Control over research, 'exploitation and conservation of both sea-bed and waters is reserved' to the coastal state. Other states have freedom of navigation and overflight and freedom to lay pipelines and cables. Proposals for marine scientific research in the EEZs of other nations require the consent of the respective coastal state(s).
(c) The definition of the legal continental shelf now includes a distance limit (up to 350 miles from shore or 100 miles beyond teh 2 500 metre isobath). Coatal (and island) states are in any case assured of a minimum 200-mile (EEZ) width of continental shelf and thus get approvimately more equal areas of shelf per unit length of shoreline than was the case under the Convention on the Continental Shelf. The sea-bed between the outer boundary of the EEZ and that of the legal continental shelf is under the jurisdiction of the coastal state, but (i) the waters above this zone are part of the high seas and (ii) the coastal state is required to share revenue from shelf resources beyond teh EEZ limit with the international community.
(d) UNCLOS made no significant changes in the law concerning the waters of the high seas, beyond what was in teh Convention on the High Seas, ie freedom of navigation, of fishing, and of scientific research. The other major change under UNCLOS (cf. (b)) concerns the International Sea-Bed Area, beyond the limits of EEZs and legal continental shelves. It will come under the control of the International Sea-Bed Authority, which will regulate exploration and exploitation of deep-sea minerals and ensure equitable distribution of revenue from such enterprises among all nations, including land-locked states. This was perhaps the biggest bone of contention at the 1982 Conference and the main reason why some major developed nations refused to sign.
UNCLOS sets out to fram an international legal regime, but there are other agreements at both international and regional levels, outside its scope, though perhaps adoptable under its 'umbrella'. Many disputes over maritime issues have been more or less resolved in recent decades with or without recourse to the Law of the Sea; but enforcement of any settlements or maritime regulations in general may still be a problem even when the Convention does come into force. Nonetheless, it is still a reamarkable document, providing a global framework for the maritime conduct of nations.
CHAPTER 4
The Earth is presently in an interglacial period of the Pleistocene Ice Age; the most recent glacial maximum was ~ 25 000 years ago. The pattern of human settlement around the Arctic Ocean has been greatly affected by climatic fluctuations and the associated changes in ice cover and se-level. At the present day, a number of indigenous peoples live around the Arctic rim; those of nothern Canada and Greeland are the Inuit. The lifestyle of many Inuit is intimately related to marine resources and the natural Arctic environment.
According to the doctrine known as the sector theory, polar regions may be divided up between the surrounding states by lines of longitude. While lines of lingitude have been used to define territory in the Arctic, the actual regions claimed have always been land; the same is true of claims of sovereignty made by virtue of discovery.
Although Canada has a fairly good case for claiming the Arctic Archipelago as Canadian territory on the basis of contiguity to the mainland, such a claim cannot be extended to sea areas outside the territorial sea. Furthermore, while some of the states bordering the Arctic Ocean have effectively used the sector theory to claim territory on the Antarctic continent, or to claim land territory, none has consistently supported the application of the sector theory with respect to the Arctic Ocean, much of which, in any case, qualifies as high seas under the Law of the Sea Conventions. Thus, the application of the sector theory in the Arctic cannot be justified on the basis of contiguity nor on the basis of customary law.
Canada has claimed that the waters of the ARctic Archipelago are Canadian internal waters on an historical basis. For various reasons, including protests by other states, and the fact that Canada itself has not consistently behaved as if the archipelagic wters were internal, Canada's claim that these waters are historic internal waters is not very strong.
However, Canada can put forward good arguments in support of the straight baselines which it establisehd around the Arctic Archipelago in 1985. Its case is strengthened by teh fact that for much of the year the islands are joined together by ice; furthermore, the Inuit's extensive use of teh sea-ice for hunting provides a clear example of an 'economic interest', the reality and importance of which is 'clearly evidenced by long usage'. According to customary law (Anglo-Norwegian Fisheries Case), waters newly closed off by straight baselines are internal waters with no right of innocent passage.
The Arctic continental shelf is rich in resources, notably hydrocarbons. However, exploitation of hydrocarbons is fraught with difficulty because of the severe environmental conditions, particularly the multi-year pack-ice which drifts under the influence of winds and currents. Drilling rigs may be mounted on bases (including artificial islands) designed to deflect the force of the ice; alternatively, thjey may be mounted on mobile platforms, successful use of which depends on pack-ice movement being accurately forecast; increasingly, this is being done using remote-sensing techniques. At present, few oilfields in teh Beaufort Sea are commercially viable; whether others will become so depends on the economics of transportation out of the Arctic.
Oil pollution incidents in the Arctic are potentially very damaging as ice hinders the dispersal of oil, and under low ambient temperatuers oil takes much longer than usual to break down; sea-bed blow-outs are a particular hazard. The ecological damage done by an oil spill would depend crucially on where and when the spill occurred.
In some senses, the Arctic can rightly be regarded as 'fragile'. A low diversity of species means that food webs are simple, so that damage to a given link in the web could be very serious for the ecosystem as a whole. Furthermore, the low Arctic temperatures mean that growth and reproduction rates are very slow, so that populations affected by an oil spill, for example, would take al ong time to recover.
The Arctic pack-ice comtains algae able to photsynthesize at low light levels. However, by cutting down light levels in the water column, and contributing to the production of a low-salinity surface layer, the sea-ice generally has a negative effect on marine productivity. Large concentrations of organisms may nevertheless be found in the vicinity of polynyas, or near the ice edge during the spring bloom.
In addition to the pollution which results from local activities such as resource extraction and fishing, the Arctic Ocean receives pollution from far away, brought in by ocean currents, and in the atmosphere, where it leads to the phenomenon of 'Arctic haze'.
Trade with the Orient was the original incentive for Europeans to find a way through ARctic regions to the Pacific; the westerly route through the Arctic Archipelago became known as the North-West Passage. Today, it is the wish to transport oil from the Beaufort Sea to the eastern seaboard of America which provides the United States with the incentive to establish an international seaway through the North-West Passage. Following the entry into the Passage of the ice-strengthened oil tanker Manhattan, Canada increased its territorial sea width from three to twelve miles, and brought in the Arctic Waters Pollution Prevention Act. The present situation is that the United States does not acknowledge Canadian sovereignty over the North-West Passage (despite the establishment of the straight baselines) but nevertheless agrees to ask Canada's permission to enter it.
Although it does not have a strong military presence in the Arctic, Canada is in a good position to consolidate its title to the waters enclosed by the straight baselines, particularly Lancaster Sound and Barrow Strait at the eastern end of the North-West Passage, and Amundsen Gulf in the west. Canada's case for consolidation of title is helped by the need, accepted by other states, to protect the marine environment and the lifestyle of the Inuit.
It seems that Ice Ages are brought about by one or both polar regions being thermally isolated, as a result of the configuration of the continental masses. Climatic fluctuations within Ice Ages are probably related to fluctuations in the amount of solar radiation reaching high northern latitudes, as determined by the 110 000-year Milankovitch cycle. In the context of enhanced global warming as the result of the greenhouse effect, it is expected that, because of the ice-albedo feedback loop, warming will occur faster in polar regions than at lower latitudes. Climatic warming will have considerable significance for the viability of the North-West Passage (and other ARctic seaways) as trade routes, and this could affect the legal status of the waters concerned. For scientific reseach in the ARctic to be successful, it is vital that the states involved cooperate.