Список литературы, рекомендуемой для самостоятельной подготовки
1. Конституція України. Прийнята на п`ятій сесії Верховної Ради України 28.05.1996 р. // Відомості Верховної Ради України . – 1996. – № 30. – Ст. 141.
2. Коментар до Конституції України / Науково-популярне видання. – К.: Інститут законодавства Верховної Ради України, 1996.
3. Про державний кордон України: Закон України від 4 листопада 1991 р. // Відомості Верховної Ради України. – 1991. – № 2. – Ст. 5.
4. Конвенция о территориальном море и прилежащей зоне, 1958 года / Додин Е.В., Кузнецов С.А. Женевские конвенции по морскому праву // Библиотека журнала «Торговое мореплавание» (Серия: Правовое регулирование торгового мореплавания). – 1998. – N 5/II.
5. Конституция для океанов (UNCLOS 82): Учебно-методическое пособие/ Сост. Е.В. Додин, С.А. Кузнецов / Под редакцией С.В. Кивалова // Библиотека журнала «Торговое мореплавание» (Серия: Правовое регулирование торгового мореплавания). – 1998. – N 3/II. – 250 с. На русском и английском язиках.
6. Морське право. Джерела: У 3 ч. Ч. І Т. 1 Кн. 2 „ІІІ Конференція ООН з морського права” / С.В. Ківалов (авт. вступ. ст.), Є.В. Додін (керівник авт. кол.), С.О. Кузнецов (наук. ред.), Т.В. Аверочкіна (відп. ред.), Д.О. Никіша. – О. : Фенікс, 2011. – 600 с. Англ.. та рос. мовами.
7. Кузнецов С.О. Морське право: підруч. / С.О. Кузнецов, Т.В. Аверочкіна. – О. : Фенікс, 2011. – 382 с.
Материалы для подготовки к проведению занятия (English)
NOTE ON THE USE OF THE WORD “SHALL”
The English Language group of the Drafting Committee first drew attention to the word “shall” in its preliminary harmonization report.1 It indicated its general preferences that references to imperative duties and obligations, positive or negative, should contain a word “shall”. It also reported that in other cases, the word “shall” should not be used where the present tense adequately conveys the meaning.” It gave as examples a provision for elaborating rights, and one for describing the effect of one rule on another.
In the early stages of the harmonization process, the Drafting Committee reported that:
The main issue here concerns the use of “shall”. It is generally agreed that “shall” denotes as imperative and expresses an obligation. The text, as the examples show, in English, Russian and Spanish tends to be indiscriminating in its use of “shall” vis-à-vis the present tense. There is certainly a case for consistency in the use of this auxiliary.2
The Drafting Committee also reported that the coordinators of the language groups were continuing to consult on this aspect. It noted that the Secretariat had prepared a paper on the use of the word “shall” in the English text, which would form the basis for further discussions in the language groups.
In 1980, the English language group refined its position, providing the following observations:
1. The Group recalled its earlier recommendation that references to imperative duties and obligations, positive or negative, should contain the word “shall”. It observed, however, that the problem was more complex than the simplicity of the rule suggested. For example, where the reference actually includes either the word “shall” or “obligation”, use of “shall” may be unnecessary. Accordingly the group will consider the matter further as part of [the] textual review [the concordance process].
2. In principle the word “shall” should not be used where the present tense adequately conveys the meaning:
(a) In a number of articles, but not others, “shall” is now used in the English text to describe the operation of one rule or another, as for example in the clauses, “Nothing in this Part shall affect …”, and “Article ___ shall apply to …”.
(b) In other articles “shall” is used in the course of elaborating rights or in declaring the existence of rights or duties: “State shall have the right to …”.
The Group will consider separately the use of “shall” in provisions which establishes institutions, such as those in Part XI and annexes II, III, IV and VI.
The Group’s general preference will be implemented in the course of the textual review.3
The Secretariat subsequently summarized the position of the other language groups which reported on the matter:
In French, the use of “s’applique” [the present tense] posed no problem for the French language group.
The Russian language group commented that the translation of the English word ”shall” creates problems in the Russian text. Where the wording of the Geneva Conventions is used in the Russian text, the word “shall” is generally conveyed by the word “dolzhny”. In the vast majority of other articles, the present tense of the verb is used, which is the modern method of expressing this concept. The impression may therefore arise that some articles referred to an imperative obligation and some to something less. In order to avoid difficulties in interpretation, the Russian text should no longer use the language of the Geneva Convention and should use the present tense, except where the structure of the Russian language requires the use of the word “dolzhny”.
The Spanish language group pointed out that in Spanish the future tense should be used articles containing definitions and descriptions, and also in articles establishing general principles.4
There were no corresponding comments from the Arabic or Chinese language groups.
On that basis, the work of concordance and the general article-by-article scrutiny of the text was conducted.
In the commentaries, attention will be drawn to the changes made in the text, whereby inserting or by removing the word “shall” in the English text of the Convention. The legislative history and the context will establish the extent to which a given provision establishes an imperative duty and obligation, positive or negative, or carries some other connotation.
NOTE ON THE USE OF THE WORD “STATE”
1.5. The ISNT/Part I (Source 6) (from the First Committee) contained several definitions which were to apply “for the purposes of this Convention”. That text gave a meaning for “States Parties”. In a note by the Chairman of the First Committee in connection with the ISNT/Part I, it was stated with regard to article 1:
[I]t is not my intention to propose that the list, as it is, be exhaustive. I have set out terminology with technical meaning either in juridical or in scientific terms. For instance, for the purposes of the text, “States Parties” means “Contracting Parties”. Where there is doubt as to what the latter means, recourse must be had to the definition provided by the Vienna Convention on the Law of Treaties. That Convention applies the term to those who have signed and ratified a treaty. It is legally desirable to maintain uniform terminology in treaties as much as possible.
1.12. At the eleventh session (1982), in the context of the discussion on article 305 (regarding participation in the Convention), the President reported (Source 17) that an informal proposal for a new article 1 bis had been received, reading:
Article 1 bis. Scope
This Convention shall apply mutatis mutandis to entities referred to in article 305, paragraphs l(b), (c), (d) and (e), which become Parties to this Convention in accordance with the conditions relevant to each, and to that extent “Stales Parties” means and includes such entities.
That proposal was accepted by the Collegium (Source 18). The Drafting Committee, in its concordance work (Source 20, at 49), recommended combining article 1 bis with article 1, changing the title to read “Use of terms and scope”, and adding a new paragraph 2 reading:
2. (a) “States Parties” means States which have consented to be bound by this Convention and for which this Convention is in force.
(b) This Convention applies mutatis mutandis to the entities referred to in article 305, paragraph l(b), (c), (d), (e) and (f), which become Parties to this Convention in accordance with the conditions relevant to each, and to that extent “States Parties” refers to those entities.
Paragraph 2(a) was adapted from article 2, paragraph l(g), of the 1969 Vienna Convention on the Law of Treaties. That article provides that “… “Party” means a State which has consented to be bound by the treaty and for which the treaty is in force”. (See 1155 UNTS 331; UKTS No. 58 (1980), Cmnd. 7964; 63 Am. J. Int’l L. 875 (1969); 8 ILM 679 (1969).
In that form article 1 was adopted in the Convention.
1.25. Paragraph 2 of article 1 is both definitional and precautionary. It reflects the President’s suggestion which, for the purpose of this Convention only, granted the quality of “State Party” to all the entities specified in article 305, paragraphs 1(b)-(f), whether or not they may be regarded as States, provided that they become parties to the Convention (see Volume V, at 167). States or entities which are not "States Parties” are excluded, even though they may have been given rights under the Convention. On the other hand, many articles refer to "States" without the qualification "Party."
The distinction between “States" and "States Parties" was carefully examined by the Drafting Committee in its harmonization work, but no specific recommendation was made regarding those terms.
Other terms embodying the word "Slate" used in the Convention, always with a particular meaning derived from the context, include (references are to first appearance of the term):
archipelagic State (article 46) coastal State (article 2)
developed coastal States (article 69) developed geographically disadvantaged States (article 70)
developed land-locked States (article 69) developing geographically disadvantaged States (article 70)
developing land-locked States (article 69) developing States (article 61)
flag State (article 27) foreign State (article 45)
geographically disadvantaged States (article 69) land-locked States (article 69)
Member Stales [of an international organization] (Annex IX, article 1)
port States (article 218) researching State (article 246) respondent State (article 190)
sponsoring State (article 190) Slates bordering an enclosed or semi-enclosed sea (article 123)
States bordering the straits (article 34) State instituting proceedings (article 228)
State of cultural origin (article 149) State of historical and archaeological origin (article 149)
State of origin of anadromous stocks (article 66) State of registry (article 109)
States Parties (article 1) third State (article 111)
transit State (article 124) user States (article 43)
All the entities recognized as States Parties in accordance with article 305, paragraph 2, can come within any of these categories - the context will always show whether and to what extent States which are not parties to the Convention also come within any of these categories. In addition, the word "countries” is occasionally retained. In its harmonization work, the Drafting Committee made a general recommendation that the phrase “developing States" should replace "developing countries" "except where the reference is to an entity other than a State,"٭ and this has been generally followed.
٭ACONF.62/L.40(1979), section II, XII Off. Rec. 95.96 (Chairman, Drafting Committee).
NOTE ON THE USE OF THE WORD “SEA” or “OCEAN SPACE”
1.26. The Convention contains no definition of "sea” or "ocean space." At the 1971 session of the Sea-Bed Committee, Malta (Source 1) proposed "ocean space" as comprising the surface of the sea, the water column and the seabed beyond national jurisdiction. In the 1972 London Dumping Convention "sea" means "all marine waters other than the internal waters of States.” Those explanations of the terms, to some extent circular, would not be adequate for the present Convention - having regard at least to article 8, paragraph 2, which recognizes the right of innocent passage through certain internal waters.
In consequence, the Convention applies to ocean spaces at given distances from land, regardless of the technical legal or physical classification of the waters of those ocean spaces. In this connection, the waters covering the seabed are referred to as the "superjacent waters" in articles 56, 78 and 135, and waters on the landward side of the baseline from which the territorial sea is measured are denominated "internal waters" in article 8 and "archipelagic waters" in article 49 (for an archipelagic State).
NOTE ON THE USE OF THE WORD “nautical mile”
1.27. Although not stated directly, it was widely understood that for the purposes of this Convention, following the Hague Codification Conference (1930), UNCLOS I (1958) and several IMO Conventions, one nautical mile equals 1,852 meters or 6,080 feet, calculated at 60 nautical miles per degree of latitude. The Secretariat drew the attention of the Drafting Committee to this in a series of observations of a drafting nature relating to the whole text.5
This was not formally incorporated in the Convention, and the absence of a formal definition may be more in accord with modem marine cartography. That definition of nautical mile is accepted by the International Bureau of Weights and Measures.6
1
ELGDC/1 (1978, mimeo), sections 28 and 29, at 3.
2 A/CONF.62/L.40 (1979), sections XXVIII and XXIX Off. Rec. 95, 104 (Chairman, Drafting Committee). The Secretariat drew attention to a remark by Sir Hamphrey Waldock, special Rapporteur of the International Law Commission on the law of treaties, in which he stated that ”in English the ”shall” form was used in statute law to devote imperative rules.” See 872nd meeting of the Commission, para. 20, I YB ILC 1966, Part II, at 199.
3 ELGDC/5 (1980, mimeo.), Part III, section B, at 2.
4 Informal Paper 4 and Rev. 1 and 2 (1980, mimeo.), Section 29.
5 Informal Paper 17 (l981, mimeo.), at 2 (discussed in relation to article 10).
6 The nautical mile is a special unit employed for marine and aerial navigation to indicate distance. The First International Extraordinary Hydrographic Conference, held in Monaco in 1929, adopted, under the name "International nautical mile," a conventional value of 1852 metres, and that has been retained as one of the "units in use temporarily with the international System of Units." Letter from the Director of the International Bureau of Weights and Measures to the Center for Oceans Law and Policy, on file in the University of Virginia Law School Archives. See also the 1956 draft articles of the International Law Commission, para. 32, II YB ILC 1956, at 253, 256. UNCLOS I used the word "mile," the word being understood to mean nautical mile as explained by the ILC, but refrained from including a formal definition in its instruments. The Drafting Committee of UNCLOS III, however, recommended using the full term "nautical mile." See A/CONF.62/L.57/Rev.l (1980), "Other recommendations … ," XIV Off. Rec. 114, 126 (Chairman, Drafting Committee). For an indication of difficulties, see the memorandum of the Legal Bureau of the Canadian Department of External Affairs, 18 Can. YB Int’l L., 310 (1980).