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Coastal and Ocean Law
University of Mississippi School of Law
Showalter-Otts, Stephanie

Fall 2013
Professor Showalter-Otts
Coastal and Ocean Law Exam Outline
I. Governing the Commons
·         Ocean itself is a global commons, open access to anyone with means to use it
·         Many of natural resources (fish, marine mammals, oil, etc.) are common pool resources at least with initially open access to all
·         This leads to a number of unique and significant challenges to confront
·         Common pool resources- a particular type of good or a natural/human made resource system b/c of the size or certain characteristics makes it costly to exclude potential beneficiaries (you cant fence off parts of the oceans to exclude access for example)
·         Common pool resources are non-exclusive
·         Tragedy of the commons- in a situation where everyone has access to a resource, individual will seek to maximize his gain that common pool, everyone will seek to maximize benefit at the cost of the whole
o   Free rider scenario- everyone has access, someone is trying to maximize their gain
o   No incentive to conserve or use restraint for the individual in the pure commons scenario
·         Rose:  if anyone one person invests in replenishment or refrains from harming that commons, everyone else using it can take advantage of them, what they replenish/replace is simply taken by someone else
·         Hardin:  pasture land example involved non-exclusive but rival goods/services, no agreed upon mechanism, everyone has access but competing for that access once they get into the commons
o   Fishermen and recreation boaters for example don’t compete for ocean
·         Additionally, individuals face other problems trying to achieve collective action benefits
·         Free rider- benefits that common good provides are available to everyone, as a result free riders can emerge while taking the benefit provided but refusing to do their part to support it
·         If too many people become free riders then the common good will be destroyed due to exploitation and overuse
·         Hardin:  mutual coercion mutually agreed upon can work to avoid the tragedy of the commons
o   Or increase the cost
o   Or limit access/prohibit the conduct (may be done indirectly by increasing the cost)
o   Hardin examples- prohibit conduct (robbing banks); mutual coercion (parking meters to limit use of parking spaces)
·         Only agreed upon coercion is mutual agreed upon mutually by those affected
·         Social agreements- fishing co-operatives, in small communities or small resources, there are sometimes ways that users can come together and agree upon how to use the resource, separate from government enforcing upon them
·         What might be the problem if you rely on the government to figure out what to do?
o   Primary concern is that the minority would not be heard
o   Is the process fair and just
o   Beuracracy- people removed and unfamiliar with the situation get to make decisions
·         Usually 2 sides to the commons problem- either centralization or privatization
o   Privatization- argues that through the creation of private property rights in the resources ends the common pool nature of the resources (presumes a central authority that should and can be parceling out ownership rights to the resource and will allow each individual to pursue its own self interest on their own)
o   Centralization:    bringing that common pool resource completely under central government role, central authority must make continued decisions
·         Ostrom suggests that there may be a 3rd way- at least consider self-organized collective action
o   Her case study is a relatively small sized community though who can agree upon something like this local problem quite easily
·         ME lobster fishery- over the years individual fishing grounds have been assigned through networks, norms are enforced by the fishermen themselves
·         Given the right ingredients, can be successful, hard to do it on anything other than a local scale though
·         Voluntary self-restraint
·         Can also be resolved by property rules- tenancy and trusteeship
·         Regulatory commons- situations where regulatory gaps arise either due to overlap in authority or inadequate/inconsistent regulation over a specific resource
o   All are different interests, not sure who to listen to
·         Cape Wind case- regulatory commons, what happens an emerging industry (wind farming) and no one has clear authority
·         Real problem is when you don’t have a clear lead as to who has legal authority
II. Law of the Sea
·         How did US control over ocean evolve over time?
·         Move away from ocean open to everyone
·         Initial idea- concept of high seas, open to everyone
·         1603, 3 vessels under Dutch East India Co. spotted Portugese merchant ships in Indian Ocean, attack and seize their cargo
·         cargo gave them a large amount of money, but controversial b/c Portugal and Spain had control over Indian Ocean
·         1605- more Dutch seizures of Portugese ships in Indian shipping lanes, leads to escalation of security and deny Dutch access
·         Dutch E. India Company then enlisted services of Grotius, his job was to defend the seizure and the Dutch right to free trade- Mare Liberum, treatise he wrote meant to influence negotiations for truce with Spain
·         Spain was willing to negotiate terms BUT only if Dutch withdrew from trading activities, Dutch had no intention of doing so
Grotius
·         The oceans belong to everyone, was a commons, and outside of a narrow sea subject to state sovereignity, everything else was high seas, open to all
·         Most countries at the time had 3 nautical mile sea
·         Legal nature of high seas:  high seas defined by freedom of the seas, all nations had access to oceans for various uses, no state could subject it to exclusive sovereignity
·         Idea that oceans connect countries, allows them to trade, exchange, fellowship between nations
·         Basic premise- freedom of the seas
o   Unfair to exclude others from oceans resources, ocean couldn’t be divided up so no property, too wild, incapable of occupation to prove ownership
Law of the Sea cont.
·         Were challenges to Grotius, n. 3, 767- Selden- seas can be reduced to ownership and uses can be regulated
·         By mid 17th cen., Grotius argument accepted by all
·         Also establishment of British, Dutch naval dominance, and extensive colonization across the world, became accepted that oceans were free
·         Critiques today- technology, pollution, environment,
1982 UN Convention on Law of Sea
·         Sets forth modern conception of freedom of the seas
·         Art. 86- high seas:  defined as all parts of the seas that are not include in exclusive economic zone, territorial seas, or internal waters of the State
·         If every country claimed EEZ to fullest extent, that only would cover 40% of oceans, 60% still would be high seas
·         Art. 87- Freedom of the high seas:  narrows Grotius freedom of the seas a bit, qualifies everything a bit, both coastal and landlocked states except for freedom of navigation and freedom of overflight
·         Freedom to fish for example limited by other sections of the Convention
·         Not a complete open access commons as Grotius envisioned it
Vessels
·         Ships are generally immune from exercise of jurisdiction except for its flag states when on the high seas
·         How do you manage what happens on the high seas?
·         Vessel has the nationality of a state whose flag it is entitled to fly
·         Rationale for flag state control- without it, complete chaos on the high seas, no freedom of navigation, through flag state control, international community can ensure that at least some state has responsibility for vessel and provides protection, inspecting, etc.
·         If more than one state can do that, could infringe on freedom
Muscat Dhows
·         March 1862, govt of France and GB signed declaration to respect the independence of Sultan of Muscat
·         Dispute later arose between Fr. And GB when

e is “innocent passage” by foreign vessels
§  Innocent if it doesn’t threaten peace, protects trade for commercial vessels
§  Military vessels have the right to be there if peaceful intent but they have to show themselves
§  Acts of pollution are considered non-innocent passage
§  Can adopt rules and regulations
o   Contiguous zone
§  Fuzzy concept, in some ways doesn’t feel too different from EEZ
§  Starts at end of territorial sea (12 mi out to 24 nautical miles)
§  In this zone can exercise limited enforcement jurisdiction, enforcement of customs, pollution laws
§  Allows a country can take limited jurisdiction to enforce
§  BUT not complete sovereignity, more of an enforcement zone
o   Continental shelf
§  Sea floor from the low water mark outward to 350 miles at its fullest extent, measured from the baseline
§  350 miles is an extended claim, default provision in the convention is 200 miles
§  compromise between those coastal states with a narrow continental shelf
§  Rights of the continental shelf focus on sovereign rights to explore and exploit the natural resources of the sea bed and subsoil adjacent to its coast
§  Sovereign rights seems like something less than complete sovereignity- doesn’t cover everything
§  Convention provides a provision for extended claims allowing up to 350 nautical miles if can prove it goes that far
·         Has to submit a request t
§  Focuses solely on sea bed but does not restrict generally the water above and has exceptions for stuff like laying cables/pipes
§  When it overlaps between 2 countries, split it evenly as the default rule
§  Europe- debates over boundary drawing
§  Soverign rights to exploit resources of shelf, 200 to 350 miles
o   Exclusive Economic Zone    
§  Overlaps, 12-200 nautical miles, basically covers 188 miles
§  Tensions over access to fishing, fishing resources were at the heart of negotiations over EEZ
§  In fisheries jurisdiction case, UK v. Iceland, Iceland declared exclusive fishing zones, creeping jurisdiction, gradually brought exclusivity further out
·         ICJ resolved dispute based on tradition- England had traditionally believed they could fish here
·         Ct. didn’t really do much of anything to resolve the dispute
§  Old claims are no longer recognized now w the EEZ in place
§  Freedom of navigation and freedom of overflight remains though in innocent passage
§  Have to get permission to do research from EEZ of another country, default rule is to allow
§  Sovereign rights
§  Can limit or preclude foreign fishing under Article 61/62
o   Overlap
§  Are these zones redundant when they overlap?
§  They need to work together in concert to cover all parts of the oceans
o   Deep sea bed
§  Not proved to be all that consequential, technology has not yet developed enough here
§  Convention sets forth that when someone would go and try to exploit the resources of the deep sea bed, would have to submit a proposal to deep sea authority, convention would require that the company mine one site for itself and another for the authority and donate the proceeds
·         Despite lack of ratification of the treaty for various reasons, the US does accept and follow most provisions as customary international law