CYIL vol. 15 (2024)

CZECH YEARBOOK OF PUBLIC & PRIVATE INTERNATIONAL LAW Česká ročenka mezinárodního práva veřejného a soukromého Vol. 15

Prague 2024

EDITION

SCIENCE & NEW MEDIA PASSAU • BERLIN • PRAGUE

Volume 15 (2024) features a diverse array of studies and articles addressing contemporary issues in inter national and European law. This year, we comme morate the 30 th anniversary of the entry into force of the UN Convention on the Law of the Sea, as well as the 70 th anniversary of the Convention relating to the Status of Stateless Persons. The Yearbook opens with studies focusing on matters related to UNCLOS and stateless persons. Additional articles examine the influence of the OECD on EU legislation, the restitution of cultural objects, and decisions from the International Labour Organization Administrative Tribunal (ILOAT). Readers will also find traditional sections dedicated to human rights law. This section includes not only a study on the protection of persons with disabili ties from violence but also articles on human rights and the environment, the treatment of unaccompa nied minors in asylum law, and analyses of the case law of the European Court of Human Rights concer ning lawyer confidentiality and the concept of “apo logy of terrorism.” The section on international criminal law presents articles focused on the prosecution of “hate speech” before the Nuremberg Tribunal and the right of appeal in criminal matters. In the domain of international law and European law, readers will encounter articles addressing whistleblower protection in Europe, the new consumer protection directive, and the direct effect of international treaty provisions within EU law. As in previous years, the Yearbook also includes a special section on international nuclear law, featuring four highly relevant contributions. Volume 15 of the CYIL further explores aspects of international trade law and private international law, such as issues of force majeure in international trade and the juris diction of Vietnamese courts in international com mercial contracts. As usually, the Yearbook covers the Czech practice of international law, including a list of treaties ratified by the Czech Republic, reports on the recent work of the International Law Commission, activities of the Sixth Committee of the UN General Assembly, and Czech cases before the European Court of Human Rights. It also features book reviews and a survey of the Czech international law bibliography.

BOOK PASSAU • BERLIN • PRAGUE

SCIENCE & NEW MEDIA

Czech Yearbook of Public & Private International Law

Czech Yearbook of Public & Private International Law Č eská ro č enka mezinárodního práva ve ř ejného a soukromého

Vol. 15

www.cyil.eu

Č eská spole č nost pro mezinárodní právo Czech Society of International Law

Praha 2024

Editor-in-Chief: Professor PAVEL ŠTURMA This Yearbook is included in the SCOPUS international database.

KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA Č R Czech yearbook of public & private international law = Č eská ro č enka mezinárodního práva ve ř ejného a soukromého. Vol. 15. – Praha : Č eská spole č nost pro mezinárodní právo, 2024. -- xv, 381 stran Č eská, anglická a slovenská resumé Vydáno v nakladatelství Eva Rozkotová. – Obsahuje bibliogra fi i a bibliogra fi cké odkazy

ISBN 978-80-87488-61-4 (Eva Rozkotová ; brožováno)

* 341.1/.8 * 341.9 * (048.8:082) * (058) – mezinárodní právo ve ř ejné – mezinárodní právo soukromé – kolektivní monogra fi e – ro č enky

341 – Mezinárodní právo [16]

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BOARDS AND EDITORS

EDITORIAL BOARD Professor VLADIMÍR BALAŠ Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Dr. MILAN BERÁNEK Ministry of Foreign Affairs of the CR Professor VERONIKA BÍLKOVÁ Charles University in Prague, Faculty of Law, Institut of International Relations, Prague Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Palacký University in Olomouc Professor MONIKA PAUKNEROVÁ Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR Associate Professor NADĚŽDA ŠIŠKOVÁ Palacký University in Olomouc, Faculty of Law Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR, former member and chair of the International Law Commission Dr. ZUZANA TRÁVNÍČKOVÁ University of Economics Prague

ADVISORY BOARD Professor LAURENCE BOISSON DE CHAZOURNES Faculty of Law, University of Geneva Professor WLADYSLAW CZAPLINSKI Institute of Legal Sciences, Polish Academy of Sciences, Warsaw Professor ČESTMÍR ČEPELKA † Charles University in Prague, Faculty of Law (emeritus) Professor MALGOSIA FITZMAURICE Queen Mary College, University of London, School of Law

Professor RAINER HOFMANN Goethe University, Frankfurt/Main Professor JIŘÍ MALENOVSKÝ Masaryk University in Brno, Faculty of Law, former judge, Court of Justice of the European Union Professor PAUL TAVERNIER † University Paris-Sud (XI), Paris (emeritus) Dr. PETER TOMKA Judge and former President, International Court of Justice, The Hague

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EDITOR-IN-CHIEF Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law President of the Czech Society of International Law, membre associé, Institut de Droit International

EXECUTIVE EDITOR PETER MIŠÚR Association KAIROS, Prague

REVIEWERS The Editors and authors are grateful to the following reviewers of articles of this volume: Vladimír Balaš, Monika Feigerlová, Eliška Flídrová, Monika Forejtová, Petr Hůrka, Dalibor Jílek, Milan Lipovský, Jan Malíř, Michal Petr, Harald Scheu, Václav Stehlík, Pavel Šturma and Filip Wagner

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CONTENTS

PREFACE Pavel Šturma

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ABBREVIATIONS

XIII

I. STUDIES IN INTERNATIONAL LAW AND ORGANIZATIONS

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Thirty Years since the Entry into Force of the UN Convention on the Law of the Sea (its Contribution and Evaluation) Jan Ondřej The Issue of Comparison of Stateless Person with Stateless Ship in the Perspective of the Current International Law Veronika D’Evereux Judgment 3640 of the Administrative Tribunal of the International Labour Organization Concerning Harassment

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41

Jan Hladík The Influence of the OECD on EU Legislation

51

Edita Filadelfiová Bringing “Tara” Home: Sri Lanka’s Discontent with Cultural Restitution in International Law

64

Punsara Amarasinghe

II. INTERNATIONAL LAW OF HUMAN RIGHTS

77

International and domestic protection from violence of persons with disabilities in care institutions

79

Violeta Vasiliauskienė, Birute Pranevičienė Age Assessment of Unaccompanied Minors in Asylum Law

101

Lenka Scheu, Anželika Banevičienė Lawyer’s Confidentiality (Lawyer’s Secrecy) in the Case Law of the Constitutional Court of the Czech Republic, the European Court of Justice and the European Court of Human Rights 118 Vladislav Vnenk Linking Human Rights and the Environment: Is there a human right to a healthy environment? 128 Petra Baumruk Understanding the concept of “apology of terrorism” after ECtHR’s judgment in Z. B. v. France – a commentary 142 Magdalena Matusiak-Frącczak

III. INTERNATIONAL LAW AND EUROPEAN LAW

151

Whistleblower Protection in Europe between Guja and the 2019 EU Directive. Different Standards in the Light of Halet v. Luxembourg

153

Harald Christian Scheu

VII

New Pro-Sustainanility Consumer Protection Directive – the Conceptual foundation of the Right to Repair in the Current EU Law Radka MacGregor Pelikánová Direct Effect of International Treaty Provisions in the EU Legal Order: Between Objective and Subjective Criteria

165

175

Dominika Moravcová

IV. INTERNATIONAL CRIMINAL LAW

189

Prosecuting “Hate Speech” at the IMT, Nuremberg: A Historical Reflection Avitus A. Agbor The Right of Appeal in Criminal Matters – Case-Law of ECtHR to Offence of a Minor Character

191

207

Jiří Mulák

V. INTERNATIONAL AND EUROPEAN NUCLEAR LAW

227

Euratom and the Use of Nuclear Energy to Power Lunar Basis

229

Jakub Handrlica State Aid by Czechia to Dukovany II

241

Evelyne Ameye Marine Might: Exploring the Legal Complexities Surrounding West Africa’s Deployment of Floating Nuclear Power Plants Within the Triumvirate of Safety, Safeguard, and Security Ezekiel Archibong Towards a Regime for Civil Liability for Nuclear Damage in the Islamic Republic of Iran VI. INTERNATIONAL ECONOMIC LAW AND PRIVATE INTERNATIONAL LAW 285 Jurisdiction of Vietnamese Courts in International Commercial Contracts, a Review of Decisions 287 Lanh Dinh Cao, Trinh Thi Hong Nguyen Vis Major and Hardship in International Trade: A Study of the CISG, Czech Law and Experiences of Czech Exporters 299 Bára Mika 254 267 Seyedeh Kiana Banikamali

VII. CZECH PRACTICE OF INTERNATIONAL LAW

315

The Non-Legally Binding International Agreements and Other Topics on the Programme of the International Law Commission Pavel Šturma Activities of the Sixth Committee of the UN General Assembly during its 78th session

317

326

Marek Zukal

VIII

Czech Republic before the European Court of Human Rights in 2023

337

Petr Konůpka List of Ratified International Treaties which Entered into Force for the Czech Republic from 1st January 2023 tiil 31st December 2023

351

Milan Beránek Moot Courts on Issues of Public International Law in 2023/2024

354

Milan Lipovský

VIII. BOOK REVIEWS

357

Sarah Thin: Beyond Bilateralism. A Theory of State Responsibility for Breaches of Non-bilateral Obligations Pavel Šturma P. Sands, J.Ch. Camus, Ch. Picaud: “Retour à Lemberg”: Could a Comics Explain the Response of International Law to Holocaust?

359

362

Petr Válek Kim Bouwer et al.: Climate Litigation and Justice in Africa

366

Monika Feigerlová

IX. SURVEY OF CZECH INTERNATIONAL LAW BIBLIOGRAPHY

371

Zuzana Trávníčková

IX

PREFACE

Dear Readers, I have the great pleasure to introduce already the fifteenth issue of the Czech Yearbook of Public & Private International Law (CYIL). Volume 15 appears, as usual, in the end of autumn, which is the typical time for the readers of this Yearbook who are interested in the developments in international law. The Czech Yearbook was established by the Czech Society of International Law in 2010. It was done thanks to the Board and the members of this association of Czech international lawyers, both academics and practitioners, who felt a lacuna of such a specialized journal or yearbook. Since 2014, the Czech Yearbook has been published by the international publishers, RW&W, Science & New Media, Passau-Berlin-Praha, which, in cooperation with Süd Ost Service, ensures its distribution in Germany and Western Europe. As you know, the CSIL publishes the Yearbook in both printed and electronic versions (www.cyil.eu). Since 2015, the Czech Yearbook has been included in the Czech index of scholarly peer-reviewed journals (RVVI) and in the SCOPUS international database. This growth of the Czech Yearbook ranks it among the larger publications of its kind in an international comparison. However, in spite of the significant rise of publishing costs, we are proud to announce that this publication is still available for free for members of the Czech Society of International Law (included in the membership fee) and on sale for a very reasonable price. We will try to improve it to allow for the full open access of the electronic version. As usual, Volume 15 (2024) presents a variety of studies and articles covering many issues of contemporary international and European law. This year, we commemorate 30 years from the entry into force of the UN Convention on the Law of the Sea (1982) and 70 years of the Convention relating to the Status of Stateless Persons (1954). The Yearbook therefore begins with the studies that address issues related to the issues of the UNCLOS and stateless persons. Other studies relate to the influence of the OECD on EU legislation, restitution of cultural objects, or some decisions of international administrative tribunal (ILOAT). The readers will also find many other traditional sections here, including human rights law. This section includes, in addition to the study on the protection from violence of persons with disabilities, articles on human rights and the environment, unaccompanied minors in asylum law, as well as analyses of the case law of the European Court of Human Rights concerning lawyer’s confidentiality or the concept of “apology of terrorism”. A section of international criminal law presents articles focused on prosecuting “hate speech” before the Nuremberg Tribunal and the right of appeal in criminal matters. In the section on international law and European law, the readers will find articles concerning whistleblower protection in Europe, the new pro-sustainability consumer protection directive, and direct effect of international treaty provisions in the EU law. As in previous years, the CYIL also presents special sections on international nuclear law that includes four very topical contributions. According to its tradition, Volume 15 of the CYIL also covers some aspects of international trade law and private international law, such as the issues of force majeure ( vis maior ) in

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international trade and jurisdiction of Vietnamese courts in international commercial contracts. The Yearbook also covers the Czech practice of international law, in particular, a list of treaties ratified by the Czech Republic, reports on the recent works of the International Law Commission and activities of the Sixth (legal) committee of the UN General Assembly, and Czech cases before the European Court of Human Rights. It also includes book reviews, and a survey of the Czech international law bibliography. As usual, the authors of this publication, who are from academia and legal practice, come from both Czech and foreign institutions. This volume includes several contributions from foreign professors and researchers, coming from or working in Austria, France, Iran, Island, Lithuania, Poland, Slovakia, South Africa, Spain, Sri Lanka, the United Kingdom, and Vietnam. As to the Czech institutions involved, these include Charles University in Prague, Institute of Law of the Czech Academy of Sciences, the University of Economics in Prague, the University of New York in Prague, the Ministry of Foreign Affairs, the Ministry of Justice, as well as some private law firms. This publication appears thanks to a continuing financial subsidy to the Czech Society of International Law from the Council of Scientific Societies of the Czech Republic. We are also grateful for the generous financial support from the law firm Skils (Prague). We also wish that this volume of the Czech Yearbook will find many readers and we are already looking forward to new authors and new contributions for our next volume in 2025. We are also grateful for any comments or suggestions on how to improve the quality of this journal.

Prof. Pavel Šturma Editor-in-Chief

XII

ABBREVIATIONS ACHPR – African Charter on Human and Peoples’ Rights ARSIWA – Articles on Responsibility of States for Internationally Wrongful Acts ASEAN – Association of Southeast Asian Nations ASIL – American Society of International Law BBNJ – Agreement on Marine Biodiversity of Areas beyond National Jurisdiction BEPS – Base Erosion and Profit Shifting CAHDI – Committee of Legal Advisers on Public International Law CAPEX – capital expenditures

CARF – Crypto-Asset Reporting Framework CCCP – Czech Code of Criminal Procedure

CEEAG – Guidelines on State aid for Climate, Environmental Protection and Energy CEDAW – Convention on the Elimination of All Forms of Discrimination against Women CISG – Convention on Contracts for the International Sale of Goods

CJEU – Court of Justice of the EU CNS – Convention on Nuclear Safety CoE – Council of Europe CPC – Civil Procedure Code CPPNM – Convention on the Physical Protection of Nuclear Material CRC – Convention on the Rights of the Child CRPD – Convention of the Rights of Persons with Disabilities

DACAH – Draft Articles on Prevention and Punishment of Crimes Against Humanity DAPPED – Draft Articles on the Protection of Persons in the Event of Disasters DARIO – Draft Articles on Responsibility of International Organizations EASO – European Asylum Support Office ECHR – European Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR – European Court of Human Rights EGNOS – European Geostationary Navigation Overlay Service ELSAC – Employment, Labor and Social Affairs Committee EPSCO – Employment, Social Policy, Health and Consumer Affairs Council ESA – European Space Agency EU – European Union FNPPs – Floating Nuclear Power Plants GATT – General Agreement on Tariffs and Trade

GDP – gross domestic product GSP – German Socialist Party G20 – Group of Twenty

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IAEA – International Atomic Energy Agency ICESCR – International Covenant on Economic, Social and Cultural Rights ICJ – International Court of Justice ICTR – International Criminal Tribunal for Rwanda ICTY – International Criminal Tribunal for the former Yugoslavia ILC – UN International Law Commission ILO – International Labour Organization ILOAT – Administrative Tribunal of the International Labour Organization IMF – International Monetary Fund IMO – International Maritime Organization IMT – International Military Tribunal IOS – Office of Internal Oversight Services IPCC – Intergovernmental Panel on Climate Change ITLOS – International Tribunal for the Law of the Sea MEIP – market economy investor principle MLI – Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS MW – megawatts NASA – National Aeronautics and Space Administration NATO – North Atlantic Treaty Organization

NGO – non-governmental organization NPM – National Preventive Mechanism OECD – Organisation for Economic Cooperation and Development OEEC – Organisation for European Economic Co-operation OHCHR – Office of the High Commissioner for Human Rights OPCAT – Optional Protocol to the Convention against Torture PISA – Programme for International Student Assessment RAB – regulated asset base RTGs – radioisotope thermoelectric generators SMRs – small modular reactors SOLAS – International Convention for the Safety of Life at Sea TFEU – Treaty on the Functioning of the European Union TWAIL – Third World Approach to International Law UCPD – Unfair Commercial Practices Directive UN – United Nations UNCED – UN Conference on Environment and Development UNCHR – UN Commission on Human Rights SPC – Social Protection Committee TEU – Treaty of European Union

XIV

UNCLOS – UN Convention on the Law of the Sea UNEP – UN Environment Programme UNESCO – UN Educational Scientific and Cultural Organization UNFSA – UN Fish Stocks Agreement UNGA – UN General Assembly UNHCR – UN High Commissioner for Refugees UNHRC – UN Human Rights Council UNIDROIT – International Institute for the Unification of Private Law UNSC – UN Security Council UNTS – UN Treaty Series US – United States of America VAT – value-added tax WCED – World Commission on Environment and Development

WHO – World Health Organization WTO – World Trade Organization

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I. STUDIES

IN INTERNATIONAL LAW AND ORGANIZATIONS

CYIL 15 ȍ2024Ȏ

THIRTY YEARS SINCE THE ENTRY INTO FORCE OF THE UN CONVENTION …

THIRTY YEARS SINCE THE ENTRY INTO FORCE OF THE UN CONVENTION ON THE LAW OF THE SEA (ITS CONTRIBUTION AND EVALUATION) Jan Ondřej Abstract: The 1982 UN Convention on the Law of the Sea is an important international treaty codifying the entire law of the sea, i.e., all parts of the sea and the seabed. It is a comprehensive document, the Convention entered into force in 1994. The Convention is the result of the Third Conference on the Law of the Sea, held in 1973–1982. The Convention reflects the technological development which occurred during the 60s and 70s, as well as the emergence of a number of new developing states which pursued their interests and that were not taken into account in the Geneva Convention of 1958. The Convention managed to resolve issues unresolved in the Geneva Conventions or unresolved at all. It was possible to reach an agreement on the maximum width of the territorial sea at 12 nautical miles. The legal regime of archipelagic states, or the detailed regime of straits used for international navigation, is completely new in the Convention. What is also completely new in the Convention is the regulation of the exclusive economic zone, which extends to a maximum distance of 200 nautical miles measured from the baseline. The exclusive economic zone thus represents a significant limitation of the high seas and the high seas regime. From the point of view of the overall legal regulation of the sea, the exclusive economic zone is the most significant change in the current legal regulation of the sea. In the Convention, the definition of the continental shelf is also modified and specified differently compared to the Geneva Convention of 1958. The regime of the seabed beyond the borders of national jurisdiction (Area), essentially the bottom of the high seas, which was not addressed by the Geneva Conventions, is completely new. It was also one of the main reasons for convening the Third Conference on the Law of the Sea. The Convention also represents a comprehensive regulation of the international marine environment. The Convention binds 168 contracting parties, and it is also important that non-contracting states mostly act in accordance with its provisions. In its substantive provisions, the Convention is largely considered to be an expression of customary international law. It is not a completely perfect document, there are some problems associated with its interpretation and implementation, for example, regarding the exclusive economic zone and the continental shelf. The UN Convention on the Law of the Sea is a living instrument and as such is still evolving. The proof is the adoption of three agreements that implement and develop its provisions. The role of the organs that were established on its basis for the implementation of its provisions is also significant. Other international organizations to which the Convention refers, especially the International Maritime Organization, also play an important role in the implementation of the Convention. Resumé: Úmluva OSN o mořském právu z roku 1982 je významnou mezinárodní smlouvou kodifikující celé právo moře, tj. všechny části moře i mořského dna. Jedná se o komplexní dokument, Úmluva vstoupila v platnost v roce 1994. Úmluva je výsledkem III. konference o mořském právu, která se konala v letech 1973–1982. Úmluva reflektuje technologických vývoj ke kterému došlo v průběhu 60. a 70 let a také vznik celé řady no-

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JAN ONDŘEJ vých rozvojových států, které uplatňovaly své zájmy a které nebyly v Ženevských úmluvách z roku 1958 zohledněny. V Úmluvě se podařilo vyřešit otázky nevyřešené v Ženevských úm luvách nebo vůbec neřešené . Podařilo se dosáhnout dohody o maximální šířce teritoriálního moře na 12 námořních mil, zcela nově je v Úmluvě upraven právní režim souostrovních států nebo podrobný režim průlivů používaných pro mezinárodní plavbu. Zcela nově je v Úmluvě obsažena úprava výlučné ekonomické zóny, která sahá do maximální vzdálenosti 200 námořních mil měřených od základní linie. Výlučná ekonomická zóna tak představuje výrazné omezení volného moře a režimu volného moře. Z hlediska celkové právní úpravy moře je výlučná ekonomická zóna nejvýraznější změnou dosavadní právní úpravy moře. V Úmluvě je také odlišně upraveno a zpřesněno vymezení kontinentálního šelfu ve srovnání s ženevskou úmluvou z roku 1958. Zcela nově je upraven režim mořského dna za hranice mi národní jurisdikce (Oblasti), v podstatě dna pod volným mořem, které vůbec nebylo Ženevskými úmluvami řešeno. Byl to také jeden z hlavních důvodů svolání III. konference o mořském právu. Úmluva také představuje komplexní úpravu mezinárodního mořského prostředí. Úmluva zavazuje 168 smluvních stran a důležité je také to, že i nesmluvní stá ty většinou jednají v souladu s jejími ustanoveními. Úmluva se ve svých hmotněprávních ustanoveních do značné míry považuje za výraz obyčejového mezinárodního práva. Úmluva není úplně dokonalým dokumentem, jsou některé problémy spojené s jejím výkladem a pro váděním např. pokud jde o výlučnou ekonomickou zónu a kontinentální šelf. Úmluva OSN o mořském právu je živoucím instrumentem a jako takový se stále vyvíjí. Dokladem je přije tí tří dohod, které provádějí a rozvíjejí její ustanovení. Významná je také úloha orgánů, které vznikly na jejím základě pro provádění jejích ustanovení Důležitou úlohu pro provádění Úmluvy sehrávají také další mezinárodní organizace na které Úmluva odkazuje, zejména Mezinárodní námořní organizace. Keywords: UN Convention on the Law of the Sea, exclusive economic zone, continental shelf, seabed beyond national jurisdiction (Area), development of the rules of the UN Convention on the Law of the Sea About the Author: Prof. JUDr. Jan Ondřej, CSc., DSc. , is Professor of International Law at the Charles University Law School in Prague and at AMBIS University in Prague. Mr Ondřej is the author of a textbook on International Public, Private, and Trade Law (2014) and of many publications on international spaces (space law, law of the sea, Antarctica), e.g., the publication The Law of International Spaces (2004) and the publication The Law of Sea Areas (2017),disarmament and international security, e.g., the publication Disarmament – Means of Ensuring the International Security (2008) and the publication Selected Questions of the Law of International Security and Disarmament (2021). He also co-authored a publication International Humanitarian Law (2010). Introduction In 2024, it is going to be thirty years since the entry into force of the UN Convention on the Law of the Sea 1 (entered into force on 16 November 1994). The Convention has a total of 320 articles and 9 annexes. The Convention binds a total of 167 states and the European Union is also a party. It is a codification of the entire law of the sea, including the seabed.

1 United Nations Convention on the Law of the Sea, 10 December 1982, No. UNTS 1833, p. 396.

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CYIL 15 ȍ2024Ȏ THIRTY YEARS SINCE THE ENTRY INTO FORCE OF THE UN CONVENTION … Its importance is given by the importance of the sea, especially from an economic point of view. It is essential for the economy of many coastal states to use the living resources of the sea, e.g., fishing. The significance of extracting mineral resources from the seabed continues to grow, both from the continental shelf and, in the future, from the seabed beyond the borders of national jurisdiction. The importance of the sea in terms of international maritime transport, but also air transport, is undeniable. The Convention is also essential from the point of view of the protection of the marine environment, it can be considered one of the strongest comprehensive environmental treaties in force today. 2 In addition to the practical significance of the sea for states and their members, the examination of the norms governing the law of the sea is also interesting from the point of view of science. International judicial and arbitral organs are also increasingly involved in the interpretation and application of the norms of the law of the sea. Maritime law is one of the oldest branches of international law. Norms of the law of the sea were originally contained in the form of international customs. The first codification of the law of the sea took place at the Geneva Conference in 1958. At this conference, four conventions were adopted, the Convention on Territorial Sea and the Contiguous Zone, the Convention on the Continental Shelf, the Convention on the High Seas and the Convention on Fishing and Conservation of the Living Resources of the High Seas. These conventions to a large extent expressed the international law in force at that time, and also partly developed it. At the Geneva Conference in 1958, however, it was not possible to agree on the maximum width of the territorial sea, the outer limit of the continental shelf was not clearly determined, the issues concerning archipelagic states were not resolved, the use of the seabed under the high seas was not regulated, etc. In 1960, the Second United Nations Conference on the Law of the Sea was held, which was convened to define the width of the territorial sea and to resolve the issues concerning the fishing rights. The agreement between states in regard to the maximum width of the territorial sea was not reached at this conference either. During the 1960s, however, the development of technology by technologically advanced countries brought closer the possibility of using the seabed under the high seas, and the conditions for the possible extraction of resources from the seabed beyond the borders of national jurisdiction were created. In this situation, the regulations contained in the Convention on the High Seas from 1958 was insufficient, because it did not mention the seabed of the high seas, and therefore did not take into account the possibility of using and extracting resources from the ocean floor. The possibility of using the seabed leads to the danger that the seabed will become the subject of national appropriation and use by developed countries. This could lead to the militarization of the seabed beyond the jurisdiction of states, and the exploitation of seabed resources would be limited to only a small part of technologically advanced states. Malta responded to this situation in its memorandum 3 of 1967, which was related to the seabed of the high seas beyond the jurisdiction of states. The memorandum declared 2 BECKMAN, R., DAVENPORT, T. The EEZ Regime: Reflections after 30 Years . LOSI Conference Papers 2012 “Securing the Ocean for the Next Generation”, p. 18. In: https://www.law.berkeley.edu/files/Beckman Davenport-final.pdf (accessed on 10. 4. 2024). 3 Note Verbale of 19 August 1967 from Malta to UN Secretary-General (A/6695,18 August 1967).

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JAN ONDŘEJ the seabed to be ‘the common heritage of mankind’ and contained principles that should be embodied in a future treaty concerning this area. These were a) the prohibition of the appropriation of the seabed, b) its exclusively peaceful use, c) conducting exploration of the seabed and the ocean floor in accordance with the principles and objectives of the UN Charter, d) investigating the interests of humanity in regard to the extraction of the seabed and ocean floor, and e) the use of net financial benefit obtained from the use and mining of the sea and ocean floor, especially to support the development of poor countries. There was reflected an important social and political aspect in this last principle. In the 1960s, the decolonization process peaked, and a number of new states were created, usually very poor. However, these states did not want to remain aloof from international events, and exactly the profit from the extraction of natural resources of the seabed could have contributed to solving the urgent needs of their development. The conclusion of the memorandum envisaged the creation of an international organization aimed at regulating the activity on the seabed and to ensure that the activity is carried out according to the principles and provisions of the proposed treaty. The Malta proposal was the impulse for the UNSC’s action in regard to the seabed. For this purpose, Resolution 2340 (XXII) of 1967 established an Ad Hoc Committee to Study the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction. A year later, this committee was transformed by Resolution 2467 (XXIII) into the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction. A significant result of the Committee’s work was the adoption of the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and Subsoil Thereof, beyond the Limits of National Jurisdiction by Resolution 2749 (XXV) of 1970, which declared the sea and ocean floor to be the ‘common heritage of mankind’. This Declaration developed the ideas contained in the Malta Memorandum. The Committee operated until 1973, when there was adopted the decision through Resolution 3067 (XXVIII) to organise the Third Conference on the Law of the Sea. According to this resolution, the mandate of the conference was to adopt a convention, that would cover all questions related to the law of the sea, and at the same time the Committee on the Peaceful Uses of the Seabed was dissolved. The reason for convening the Third Conference on the Law of the Sea was the need to address the unresolved issues that were connected with technical development allowing the use of other parts of the sea and the seabed, as well as the emergence of multiple new developing states, which asserted their interests that were not taken into account in the Geneva Conventions. The conference was held from 1973–1982 and resulted in the adoption of the United Nations Convention on the Law of the Sea in 1982. The aim of the Article is to evaluate the importance of the UN Convention on the Law of the Sea, its contribution, and also to point out some problems arising from its interpretation and application.

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CYIL 15 ȍ2024Ȏ THIRTY YEARS SINCE THE ENTRY INTO FORCE OF THE UN CONVENTION … 1. Resolving the issues of maritime law, which were not settled at the previous conferences on the law of the sea, at the Third Conference T he issues unresolved at previous conferences or not resolved at all, the given regulation is contained in the Convention were managed to get resolved at the Third Conference on the Law of the Sea. From this point of view, these were positive results and a success of the conference. Among other things, the states managed to reach an agreement on the width of the territorial sea. According to Article 3 of the Convention, every state has the right to determine the width of its territorial sea up to a limit not exceeding twelve nautical miles measured from the baselines determined in accordance with this Convention. Due to the maximum width of the territorial sea, the Convention newly defined the maximum width of the contiguous zone. According to Article 33(2) of the Convention, the contiguous zone may not extend further than 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. The UN Convention on the Law of the Sea also stipulates the legal regulation of archipelagic states in Article 46 et seq in a completely new way. The Geneva Conventions did not contain the legal regulation of the waters of archipelagic states. This is related to the states such as the Philippines or Indonesia. In particular, these two states addressed their demands to the sea power states regarding the need for legal regulation of the waters of the archipelagic states. According to Article 46 of the United Nations Convention on the Law of the Sea, ‘archipelagic state’ is a state that consists of one or more archipelagos and may include other islands. The archipelago means a group of islands, including parts of islands, interconnected by waters and other natural features, that are so closely related to each other that such islands, waters, and other natural features form a single geographical, economic, and political entity or have historically been considered as such. The Convention also newly contains a comprehensive regulation of straits used for international navigation in Article 34 et seq. In the professor V. Kopal’s view [t]he new codification of the law of the sea as a whole, and particularly the vitality of its part dealing with the legal regime and organization for the sea-bed area, will be tested in near future. Should they resist and survive all possible attempts at destroying them, they must gratify in a balanced manner the needs and interests of all groups of States of the present world. For only with an active participation and endorsement of all such groups international law of our times can really expand. 4

2. Restriction of the high seas area, creation of an exclusive economic zone

The legal regulation of the exclusive economic zone is completely new in the UN Convention on the Law of the Sea. The legal regime of the exclusive economic zone is considered to be an expression of a compromise in regard to the efforts of some states to

4 KOPAL, V. Problems of the New Codification of the Law of the Sea, with a special reference to rights and interests of Land-Locked States, abstract. Prague: Academia, 1983, p. 291.

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JAN ONDŘEJ apply a greater width of the territorial sea up to 200 nautical miles. The exclusive economic zone extends to a distance of 200 nautical miles, which is measured from the low water line along the coast (from which the width of the territorial sea is measured). Coastal states have sovereign (exclusive) rights in this zone to explore and exploit natural resources. However, they may appropriate neither the sea beyond the territorial sea nor the seabed. It should be noted that the maximum width up to 200 n.m. the exclusive economic zone has no geographical, ecological or biological significance and was adopted for pragmatic historical and political reasons. 5 At the beginning of negotiations at the Third United Nations Conference on the Law of the Sea, the most extensive territorial sea zones claimed by some Latin American and African coastal states were just 200 nautical miles. As it would be difficult to convince these states to accept a distance less than 200 miles, it was the easiest to reach an agreement on the outer limit of the exclusive economic zone by fixing the distance, which represented the broadest existing claims 6 to the territorial sea. The exclusive economic zone was supported both by developing countries and also by developed states such as Canada or Norway. The exclusive economic zone is thus a compromise between the states that asserted the width of the coastal sea of 200 nautical miles (some Latin American and African states) and those developed states, e.g., Japan, the USA, but also the USSR, which were against the expansion of the jurisdiction of the coastal state. 7 The 200 mile strip of the exclusive economic zone covers a total of 35–36% of the world’s oceans. The seven largest states that claim the exclusive economic zone are the United States, France, Indonesia, New Zealand, Australia, Russia, and Japan. 8 As Y. Tanaka states, it is ironic that the states that hold the largest areas of the exclusive economic zone are the developed states. 9 The legal regime of the exclusive economic zone was generally accepted by the states. Even before the Convention entered into the force, the International Court of Justice stated in 1985 in the case of Libya vs. Malta in the matter of the continental shelf that the practice of states shows that the exclusive economic zone becomes part of customary law. 10 Regarding the legal nature of the exclusive economic zone at the time of the Third Conference on the Law of the Sea, it was not clear whether the exclusive economic zone would be considered an area of the high seas with a special regime, or whether it would be a new zone of the coastal state in which the freedoms of the high seas are considered equivalent to the right of innocent passage in the territorial sea. Many sea states at the Third Conference on the Law of the Sea argued that the exclusive economic zone has the residual character of the high seas. By this it was meant, that any activities not falling under the expressly defined rights of the coastal state would be subject to the regime of the high seas. This approach did not receive the support of the majority of participants of the Third 5 BECKMAN, R., DAVENPORT, T. The EEZ Regime: Reflections after 30 Years . LOSI Conference Papers 2012 “Securing the Ocean for the Next Generation”, p. 5. In: https://www.law.berkeley.edu/files/Beckman Davenport-final.pdf, (accessed on 10. 4. 2024). CHURCHILL, R. R. and LOWE, A. V. The Law of the Sea . Third edition . Manchester: Manchester University Press, 1999, p. 163. 6 Ibid. 7 Ibid., pp. 160–161. 8 Ibid., p. 178. 9 TANAKA, Y. The International Law of the Sea. Cambridge: Cambridge University Press, 2012, p. 125. 10 International Court of Justice, Case concerning the Continental Shelf ( Libya v. Malta ) Judgement, 1985, para. 34.

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CYIL 15 ȍ2024Ȏ THIRTY YEARS SINCE THE ENTRY INTO FORCE OF THE UN CONVENTION … Conference on the Law of the Sea and the Articles 55 and 86 of the Convention on the Law of the Sea express that the exclusive economic zone does not have the residual character of the high seas. 11 The exclusive economic zone is thus neither the high seas nor an extension of the territorial sea, but a sui generis zone. 12 Similarly, R.R. Churchill and A.V. Lowe state that an exclusive economic zone is a special zone sui generis, situated between the territorial sea and the high seas. 13 A similar conclusion, that it is the sui generis zone different from the territorial sea or high seas, was reached by, e.g., Y. Tanaka. 14 The special nature of the sui generis exclusive economic zone is manifested in three basic elements. First, the rights that the Convention on the Law of the Sea grants to the coastal states are defined. Second, there are the rights and obligations that the Convention on the Law of the Sea confers on other states , and third, there are provisions of the Convention that regulate activities that do not fall under either of the two previous categories. 15 The exclusive economic zone thus represents a significant limitation of the high seas and the high seas regime. From the point of view of the overall legal regulation of the sea, the exclusive economic zone is the most significant change of the legal regulation of the sea to date. The rights that the UN Convention on the Law of the Sea grants to the coastal states are defined in the Article 56 of the Convention. According to paragraph 1(a) the coastal state is granted sovereign rights for the purpose of exploration and exploitation of natural resources, whether living or non-living, of the seabed and its subsoil and the waters lying above them, their preservation and management, and sovereign rights with regard to other activities related to the economic exploration and exploitation of the zone, such as generating energy using water, currents, and winds. The concept of sovereign rights expresses complete, although only individual rights, that are more precisely specified. They do not in any way imply sovereignty over the given area. The state may therefore not appropriate the continental shelf or the exclusive economic zone as such. Furthermore, the coastal state has the exclusive right in the exclusive economic zone to build, authorize and manage the construction, operation and use of: (a) artificial islands, (b) facilities and structures for the purposes provided for in Article 56 and for other economic purposes. The coastal state has exclusive jurisdiction over such artificial islands, facilities, and structures, including jurisdiction over customs, financial, health, security, and immigration regulations. The rights and obligations of other states in the exclusive economic zone are expressed in Article 58 of the Convention. According to Article 58(1), subject to the relevant provisions of this Convention, all states, whether coastal or landlocked, enjoy in the exclusive economic zone the freedoms mentioned in Article 87, namely freedom of navigation, overflight, 11 CHURCHILL, R. R. and LOWE, A. V. The Law of the Sea . Third edition . Manchester: Manchester University Press, 1999, p. 165. 12 GUILFOYLE, D. The High Seas in: ROTHWELL, D. R., ELFERINK A, G. O., SCOTT K, N., STEPHENS, T. The Oxford Handbook of The Law of the Sea . Oxford: Oxford University Press, 2015, p. 205. 13 CHURCHILL, R. R. and LOWE, A. V. The Law of the Sea . Third edition . Manchester: Manchester University Press, 1999, p. 166. Similarly, M. Evans refers to the exclusive economic zone as being neither the coastal sea nor the high seas. In: EVANS, M. D. International Law. Second edition. Oxford: Oxford University Press, 2006, p. 644. 14 TANAKA, Y. The International Law of the Sea. Cambridge: Cambridge University Press, 2012, p. 126. 15 CHURCHILL, R. R. and LOWE, A. V. The Law of the Sea . Third edition . Manchester: Manchester University Press, 1999, p. 166.

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JAN ONDŘEJ laying of submarine cables, and pipelines, as well as other means use of the sea. These are three of the six freedoms listed in Article 87 of the Convention. Importantly, the exercise of these freedoms must be compatible with the other provisions of the Convention. These are, for example, the rights of the coastal state listed in Article 73 of the Convention, according to which the authorities of the coastal state have the right to enter a foreign ship, carry out an inspection, or even detain the ship in the event of a violation of the fishing rights of the coastal state. 16 Another example is the requirement in Article 60(6) of the Convention that all ships must respect safety zones and obey generally accepted international standards relating to navigation near artificial islands, installations and structures, and safety zones. The legal regulation of the exclusive economic zone is thus based on a balance between the rights of the coastal state and the rights of other states. However, this balance may be disturbed by the tendency of the coastal states to enact legislation either strengthening the competence and jurisdiction of the coastal state or restricting the freedoms recognized in the exclusive economic zone regarding navigation, overflight, the laying of submarine cables, and pipelines or other freedoms recognized by international law, which are associated with these freedoms. Freedom of navigation may be subject to restrictions that are not consistent with the Convention. This is, for example, the protection of the marine environment from ship-source pollution. The discussion on the provisions on pollution from ships (vessels) was one of the most contentious during the negotiations at the Third Conference on the Law of the Sea. 17 Pursuant to Article 211(5) of the Convention, in order to ensure compliance with measures, coastal states may, in respect of their exclusive economic zones, adopt legislation to prevent, reduce, and control pollution from vessels. However, this legislation must correspond to generally accepted international norms and standards established through relevant international organizations. This organization refers to the International Maritime Organization (IMO). In this direction, the coastal state is thus limited in adopting laws and regulations. 18 However, several states have adopted a regulation that is inconsistent with the protection of the marine environment. For example, several states require prior authorization before all ships enter the exclusive economic zone. 19 France and Spain, under the influence of the Prestige tanker accident in 2002, require that all oil tankers sailing through their exclusive economic zone notify these states in advance of their cargo, destination, flag state, and operator, with the provision that all hulled tankers older than 15 years are subject to inspections by coastal authorities. 20 16 BECKMAN, R., DAVENPORT, T. The EEZ Regime: Reflections after 30 Years. LOSI Conference Papers 2012 “Securing the Ocean for the Next Generation”, p. 17. In: https://www.law.berkeley.edu/files/Beckman Davenport-final.pdf, (accessed on 10. 4. 2024). 17 Ibid. 18 International Convention for the Prevention of Pollution from Ships 1973 UNTS 1340, 184, as amended by the Protocol Relating to the International Convention for the Prevention of Pollution from Ships of 1973, 17 February 1978, UNTS 1340, 61 (MARPOL73/78). 19 E.g., Guyana, India, Pakistan. 20 BECKMAN, R., DAVENPORT, T. The EEZ Regime: Reflections after 30 Years. LOSI Conference Papers 2012 “Securing the Ocean for the Next Generation”, p. 19. In: https://www.law.berkeley.edu/files/Beckman Davenport-final.pdf, (accessed on 10. 4. 2024).

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CYIL 15 ȍ2024Ȏ THIRTY YEARS SINCE THE ENTRY INTO FORCE OF THE UN CONVENTION … Unilateral actions by coastal states that limit navigation rights can only undermine the exclusive economic zone regime. In this direction, it would be possible to initiate proceedings according to Article 297(1)(c), which contains mandatory dispute resolution in cases where the coastal state has acted in violation of international rules and standards related to the protection and preservation of marine environment which applies to the coastal state and which have been established by this Convention or through the appropriate international organization or diplomatic conference. 2.1 The issue of activities not regulated by the Convention and different views of states on the interpretation of certain concepts in relation to the exclusive economic zone Another problem and possible disputes in the use of the exclusive economic zone by other states arise in connection with the interpretation of the provisions of Article 58(1) of the Convention, which also mentions other ways of using the sea related to those freedoms recognized by international law, which are associated with the operation of ships and aircraft, submarine cables, and pipelines and which are compatible with the other provisions of this Convention. It is a question of what other ways of using the exclusive economic zone by states other than coastal states are allowed, or not prohibited. In this direction, the question of the performance of military activities by foreign states is questionable. The Convention does not contain any provisions regarding military activity. Freedom of navigation itself includes the freedom of navigation of warships, which was not a source of concern of the coastal states. 21 However, tension between coastal states and sea power states was caused by the question of the right of other states to carry out military activities, 22 including military manoeuvres, firing exercises, military reconnaissance, especially reconnaissance activities that test the electronic defence of coastal states, etc. Military use and activities in the exclusive economic zones were not explicitly mentioned during the official negotiations. According to the interpretation of the US, other ways of using the sea preserve the traditional freedoms of the high seas such as the implementation of a large range of military activities. 23 On the other hand, some coastal states such as Brazil persistently objected to this interpretation. In this direction, a number of coastal states (Bangladesh, Brazil, Cape Verde, India, Malaysia, Pakistan, Uruguay) made a statement at signing or ratifying the Convention that foreign military exercises and manoeuvres, including the right to use weapons, are only allowed with the consent of the coastal state. 24 These states have also emphasized the Article 301 of the Convention on the duty to refrain from the use of force against other states to strengthen the argument that military activity is not permitted in the exclusive economic zone. 25 In regard to the military activity in the exclusive economic zone, it can be concluded that the activity of other states must be compatible with the other provisions of the Convention. In this direction, the sovereign rights of the coastal state to explore and use natural resources 21 ROTHWELL, D. R., STEPHENS T. The International Law of the Sea . Oxford: Hart Publishing, 2010, p. 228. 22 BECKMAN, R., DAVENPORT, T. The EEZ Regime: Reflections after 30 Years. LOSI Conference Papers 2012 “Securing the Ocean for the Next Generation”, p. 24. In: https://www.law.berkeley.edu/files/Beckman Davenport-final.pdf, (accessed on 10. 4. 2024). 23 Ibid., p. 25. 24 ROTHWELL, D. R., STEPHENS, T. The International Law of the Sea. Oxford: Hart Publishing, 2010, p. 280. 25 Ibid., p. 26.

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