ABSTRACT
Proposing a systematic analytical framework which assists in understanding and applying the international law regime governing State ocean jurisdiction with a view to improved ocean governance for sustainable development, this book distinguishes between, and focuses on, the form, the ground, the scope and the purpose of State ocean jurisdiction. Defining jurisdiction as the international-law authority of a State to be involved in a factual matter on the basis of a valid legal ground to perform authoritative acts impacting on that matter, it disaggregates the concept the complexity of which often leads to States failing to make full use of their existing ocean jurisdictions. In the process, it identifies when and to what extent there are gaps and overlaps of jurisdictions. Bringing clarity on an inevitably complex and often misunderstood framework that is aimed at striking a universally accepted balance of competing interests, the book lays the foundation for future research, contextualising the position of State ocean jurisdiction not only in terms of ocean governance, but in the whole of public international law. With an original systematic focus on State ocean jurisdiction, the book will be of interest to academics, students and practitioners working in the areas of international law of the sea, ocean governance, human rights and environmental law.
Contents
Table of international instruments
Table of cases
List of abbreviations
Chapter 1 ‒ Introduction
1. Introduction
2. Maritime uses
3. Maritime stakeholders
4. The concept of "State jurisdiction"
5. Analytical framework
Chapter 2 ‒ The form of State ocean jurisdiction
1. Introduction
2. Legislative jurisdiction
2.1. Introduction
2.2. Categories of legislative provisions
2.2.1. Introduction
2.2.2. Constitutive provisions
2.2.3. Normative provisions
2.2.4. Performative provisions
2.2.5. Combination of provisions
2.3. Impact of legislative acts performed in the exercise of legislative jurisdiction
2.3.1. Introduction
2.3.2. Performance of legislative acts
2.3.3. Contents of legislative provisions
(a) Introduction
(b) Constitutive provisions
(c) Performative provisions
(d) Normative provisions
(i) Introduction
(ii) Spatial application
(iii) Personal application
(iv) Hybrid application
(v) Subject-matter
2.4. Executive acts
2.4.1. Introduction
2.4.2. Logistic acts
2.4.3. Process acts
2.4.4. Enforcement acts
2.5. Adjudicative acts
2.6. Definition of "legislative jurisdiction"
3. Executive jurisdiction
3.1. Introduction
3.2. Legislative acts
3.3. Executive acts
3.3.1. Types of executive acts
(a) Introduction
(b) Logistic acts
(c) Process acts
(i) Definition
(ii) Acts performed iure imperii
(iii) Acts performed iure gestionis
(d) Enforcement acts
3.3.2. Impact of executive acts
(a) Logistic acts
(b) Process acts
(c) Enforcement acts
3.4. Adjudicative acts
3.5. Definition of "executive jurisdiction"
4. Adjudicative jurisdiction
4.1. Introduction
4.2. Legislative acts
4.3. Adjudicative acts
4.3.1. Introduction
4.3.2. Acts performed to settle disputes between States and other legal persons
4.3.3. Acts performed to settle disputes between private legal persons
4.3.4. Acts performed to settle internal disputes
4.4. Executive acts
4.4.1. Introduction
4.4.2. Logistic acts
4.4.3. Process acts
4.4.4. Enforcement acts
4.5. Definition of "adjudicative jurisdiction"
5. Relationship between the legislative, executive and adjudicative jurisdictions
6. Conclusion
Chapter 3 ‒ The ground of State ocean jurisdiction
1. Introduction
2. Flag State jurisdiction
2.1. Introduction
2.2. Connecting factor
2.3. Establishment of the legal relationship
2.4. Evidence of the legal relationship
2.4.1. The right to fly a flag
2.4.2. Ship registries
2.4.3. Nature of the evidence
2.5. Nature of the legal relationship
2.5.1. Exclusive competence of every State
2.5.2. The requirement of genuineness
(a) Introduction
(b) The existence of the requirement that the link be genuine
(c) The meaning of "genuineness"
(i) Introduction
(ii) Discussions at the International Law Commission
(iii) Discussions at and after UNCLOS I
(d) The recognition of genuineness
2.5.3. Additional requirements and restrictions
2.6. Cessation and change of the legal relationship
2.7. Multiplicity of legal relationships
2.8. Artificial objects other than ships
3. Coastal zone jurisdictions
3.1. Introduction
3.2. Territorial jurisdiction
3.2.1. Introduction
3.2.2. The concept of "coastal State"
3.2.3. The existence of the marine territory
3.2.4. The link between the matter and the territory
3.3. Extraterritorial coastal zone jurisdictions
3.3.1. Contiguous zone jurisdiction
3.3.2. Exclusive economic zone jurisdiction
3.3.3. Continental shelf jurisdiction
4. Personal jurisdiction
4.1. Introduction
4.2. Connecting factor
4.3. Legal relationship between the State and the person
4.4. Factual link between the State and the person
4.5. Link between the matter and the person
5. Universal jurisdictions
5.1. Introduction
5.2. Piracy jurisdiction
5.3. Slave trade jurisdiction
5.4. Statelessness jurisdiction
5.4.1. Introduction
5.4.2. Vessels without nationality
5.4.3. Vessels with more than one nationality
6. Port State jurisdiction
7. Delegated jurisdictions
8. Collective jurisdictions
9. Protective jurisdictions
10. Conclusion
Chapter 4 ‒ The scope of State ocean jurisdiction
1. Introduction
2. Flag State jurisdiction
2.1. Extent of flag State jurisdiction
2.2. Relationship between flag State jurisdictions
2.3. Summary
3. Territorial jurisdiction
3.1. Extent of territorial jurisdiction
3.2. Relationship between territorial jurisdictions
3.3. Relationship between territorial jurisdiction and flag State jurisdiction
3.3.1. Introduction
3.3.2. Legislative jurisdiction
3.3.3. Executive jurisdiction
(a) Principle
(b) Innocent passage, transit passage and archipelagic sea lanes passage
(i) Introduction
(ii) Innocent passage
(iii) Transit passage
(iv) Archipelagic sea lanes passage
(c) Warships and other government vessels operated for non-commercial purposes
(d) Cases of distress
3.3.4. Adjudicative jurisdiction
3.3.5. Relationship outside of the territory of the coastal State
3.4. Summary
4. Personal jurisdiction
4.1. Extent of personal jurisdiction
4.2. Relationship between personal jurisdictions
4.3. Relationship between personal jurisdiction and flag State jurisdiction
4.4. Relationship between personal jurisdiction and territorial jurisdiction
4.5 Summary
5. Contiguous zone jurisdiction
5.1. Extent of contiguous zone jurisdiction
5.2. Relationship between contiguous zone jurisdictions
5.3. Relationship between contiguous zone jurisdiction and flag State jurisdiction
5.4. Relationship between contiguous zone jurisdiction and territorial jurisdiction
5.5. Relationship between contiguous zone jurisdiction and personal jurisdiction
5.6 Summary
6. Exclusive economic zone jurisdiction
6.1. Extent of exclusive economic zone jurisdiction
6.1.1. Introduction
6.1.2. Article-56(1)(a) matters
6.1.3. Article-56(1)(b) matters
(a) Introduction
(b) Article-56(1)(b)(i) matters
(c) Article-56(1)(b)(ii) matters
(d) Article-56(1)(b)(iii) matters
6.1.4. Extent ratione loci
6.2. Relationship between exclusive economic zone jurisdictions
6.3. Relationship between exclusive economic zone jurisdiction and flag State jurisdiction
6.3.1. Introduction
6.3.2. Article-56(1)(a) jurisdiction
6.3.3. Article-56(1)(b)(i) jurisdiction
6.3.4. Article-56(1)(b)(ii) jurisdiction
6.3.5. Article-56(1)(b)(iii) jurisdiction
6.4. Relationship between exclusive economic zone jurisdiction and territorial jurisdiction
6.5. Relationship between exclusive economic zone jurisdiction and personal jurisdiction
6.6. Relationship between exclusive economic zone jurisdiction and contiguous zone jurisdiction
6.7 Summary
7. Continental shelf jurisdiction
7.1. Extent of continental shelf jurisdiction
7.2. Relationship between continental shelf jurisdictions
7.3. Relationship between continental shelf jurisdiction and flag State jurisdiction
7.4. Relationship between continental shelf jurisdiction and territorial jurisdiction
7.5. Relationship between continental shelf jurisdiction and personal jurisdiction
7.6. Relationship between continental shelf jurisdiction and contiguous zone jurisdiction
7.7. Relationship between continental shelf jurisdiction and exclusive economic zone jurisdiction
7.8. Summary
8. Universal jurisdictions
8.1. Extent of the universal jurisdictions
8.1.1. Introduction
8.1.2. Extent of piracy jurisdiction
8.1.3. Extent of slave trade jurisdiction
8.1.4. Extent of statelessness jurisdiction
8.2. Relationship between universal jurisdictions
8.3. Relationship between the universal jurisdictions and flag State jurisdiction
8.4. Relationship between the universal jurisdictions and territorial jurisdiction
8.5. Relationship between the universal jurisdictions and personal jurisdiction
8.6. Relationship between the universal jurisdictions and the extraterritorial coastal zone jurisdictions
8.7. Summary
9. Port State jurisdiction
9.1. Extent of port State jurisdiction
9.1.1. Introduction
9.1.2. Supplementary function
9.1.3. Environmental protection
9.1.4. Fisheries
9.2. Relationship between the port State jurisdictions
9.3. Relationship between port State jurisdiction and flag State jurisdiction
9.4. Relationship between port State jurisdiction and territorial jurisdiction
9.5. Relationship between port State jurisdiction and personal jurisdiction
9.6. Relationship between port State jurisdiction and the extraterritorial coastal zone jurisdictions
9.7. Relationship between port State jurisdiction and the universal jurisdictions
9.8. Summary
10. Delegated jurisdictions
10.1. Extent of the delegated jurisdictions
10.2. Relationship between the delegated jurisdictions and the other jurisdictions
11. Collective jurisdictions
11.1. Extent of the collective jurisdictions
11.2. Relationship between the collective jurisdictions and the other jurisdictions
12. Protective jurisdictions
12.1. Extent of the protective jurisdictions
12.1.1. Introduction
12.1.2. Protective jurisdiction exercised for State security purposes
12.1.3. Protective jurisdiction exercised for economic purposes
12.2. Relationship between the protective jurisdictions
12.3. Relationship between the protective jurisdictions and flag State jurisdiction
12.4. Relationship between the protective jurisdictions and territorial jurisdiction
12.5. Relationship between the protective jurisdictions and personal jurisdiction
12.6. Relationship between the protective jurisdictions and the extraterritorial coastal zone jurisdictions
12.7. Relationship between the protective jurisdictions and the universal jurisdictions
12.8. Relationship between the protective jurisdictions and port State jurisdiction
12.9. Summary
13. Conclusion
Chapter 5 ‒ The purpose of State ocean jurisdiction
1. Introduction
2. Sovereign equality of States
3. Mare clausum, mare liberum and the package deal
4. Teleological principles
4.1. Introduction
4.2. Protection of the ius communicationis
4.3. Avoidance of harm
4.3.1. Introduction
4.3.2. Harm to States
4.3.3. Harm to individuals
4.3.4. Harm to the cultural and natural environment
4.4. Pursuit of equity
4.5. Integrative cooperation
5. Purposive parameters
5.1. Introduction
5.2. Good faith
5.3. Abuse of rights
5.4. Reasonableness
5.4.1. Introduction
5.4.2. Performative reasonableness
5.4.3. Intersective reasonableness
6. Conclusion
Chapter 6 ‒ Conclusion
Index
