Author Archives: N.F. Coelho

Call for abstracts: Sustainable Ocean Project

The Sustainable Ocean Project is holding its final conference on 3-4 September 2020 in Utrecht (the Netherlands). This project has been dealing with the following overarching research question since 2015: how can the law contribute to the sustainable use of the oceans and strike a balance between competing interests at sea? 

The conference will be structured around four interrelated themes:

  1. Due diligence as obligation and/or balancing standard;
  2. Balancing principles in international law interpretation;
  3. The role of regionalism in the accommodation of multiple interests;
  4. The role of state consent and the participation of other actors in international law-making and law implementation.

Abstracts are accepted until 30 March 2020. More information is available here.

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UK/USA: agreement concerning the Shipwrecked Vessel RMS Titanic enters into force

The agreement concerning the Shipwrecked Vessel RMS Titanic signed by the United Kingdom (UK) and the United States of America (USA) has entered into force. This treaty was signed in 2003 by the United Kingdom, but was only accepted by the United States of America on 18 November 2019. Among other obligations, the treaty posits that

Each Party shall take the necessary measures, in respect of its nationals and vessels flying its flag, to regulate through a system of project authorizations:

(a) entry into the hull sections of RMS Titanic so that they, other artifacts and any human remains are not disturbed; and
(b) activities aimed at the artifacts from RMS Titanic found outside the hull of the wreck so that all such activities are, to the maximum extent practicable, conducted in accordance with the Rules.

This treaty strengthens the basic level of protection for the wreck afforded by UNESCO since 2012. Lying in international waters, the wreck was previously not protected by explicit legislation. The text of the treaty can be found here. More information is available here.

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Morocco: maritime delimitation bills approved

The Parliament of Morocco (Commission des Affaires étrangères, de la défense nationale, des affaires islamiques et des Marocains résidant à l’étranger à la Chambre des représentants) has approved (16 December 2019) two bills (projets de loi) concerning the delimitation of maritime zones. The projet de loi n° 37.17 alters the previous legislation on the territorial waters, updating existing baselines with more recently surveyed data; the projet de loi n° 38.17 alters previous legislation concerning the exclusive economic zone and the continental shelf. Both bills were first presented in 2017 and they apply to the waters adjacent to the Southern Provinces of Morocco, located within a Non-Self Governing Territory listed under Chapter XI of the Charter of the United Nations as “Western Sahara“.

The Minister of Foreign Affairs of Morocco has stated that these initiatives “do not mean the unavailability of Morocco for a solution to any possible conflict with its neighbours Spain and Mauritania”. This statement is available here (in French). In response, the Government of the Sahrawi Arab Democratic Republic published a statement saying that the “unilateral Moroccan act to claim Western Sahara maritime zones is null and void”. This statement is available here.

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PCA: The Duzgit Integrity Arbitration (Malta v. São Tomé and Príncipe) Award on Reparation delivered

The Tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea in the matter of the Duzgit Integrity Arbitration has issued its final Award on Reparation in respect of the dispute between Malta and São Tomé e Príncipe (18 December 2019). These proceedings concerned the arrest by São Tomé of a Maltese flagged vessel – the Duzgit Integrity – when it attempted to undertake a ship-to-ship (“STS”) cargo transfer in São Tomé’s archipelagic waters, and the subsequent measures taken by São Tomé in relation to the vessel, its master, cargo, owner and charterer.

This Final Award follows a previous Award delivered by the PCA (see De Maribus report here). Following the issuance of the Tribunal’s 5 September 2016 Award, the proceedings were temporarily suspended while the Parties pursued settlement negotiations, which were ultimately unsuccessful. In its present Award on Reparation, the Tribunal scrutinizes Malta’s claim for reparation and orders São Tomé to pay compensation in respect of certain of Malta’s heads of claim, in particular by addressing the following:

  • Whether Malta has sufficiently substantiated its claims and established causation between its loss and São Tomé’s unlawful conduct;
  • Whether the settlement agreement mitigates any of the damages suffered by DS tankers;
  • Whether the acts and omissions of the Duzgit integrity, its master, owner and charterer mitigate any of the damages claimed by Malta.

More information about this case can be found here.

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CJEU: Advocate General in Slovenia v Croatia (Case C-457/18) declines jurisdiction

Advocate General Priit Pikamäe proposes the Court of Justice of the European Union (CJEU) to declare that it does not have jurisdiction to hear an action brought by Slovenia, who submits that Croatia is preventing it from fully exercising its sovereignty throughout its maritime territory. The Advocate General is of the view that the delimitation of national territory does not fall within the sphere of competence of the European Union or of the CJEU (CJEU press release of 11 December 2019).

Both parties submitted a territorial and maritime boundary dispute to the Permanent Court of Arbitration (PCA), who issued a Final Award determining the creation of a “Junction Area” and setting the terms of the special regime to apply therein. The PCA emphasized that this special regime is intended to guarantee both the integrity of Croatia’s territorial sea and Slovenia’s freedoms of communication between its territory and the high seas (PCA press release of 29 June 2017). Croatia decided to withdraw from the 2009 Arbitration Agreement in 29 July 2015 and later stated that this award “does not in any way bind Croatia and Croatia shall not implement it” (Croatia Ministry of Foreign and European Affairs press release of 29 June 2017).

In its action brought to the CJEU (2018/C 399/27) on 13 July 2018, Slovenia argues that Croatia “unilaterally refuses to fulfil its obligations under the arbitration award”, namely in “denying Slovenian fishing vessels free access to the marine waters which the arbitration award of 2017 has defined as Slovene, and, a fortiori, free access to Croatian waters falling within the scope of the mutual access regime”.

More information on Case C-457/18 shall be made available here.

Capture

The “Junction Area”, as determined by the PCA in 2017. Source: PCA Case No. 2012-04, at page 347

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ICC: Final Decision on the “Situation on the Registered Vessels of Comoros, Greece and Cambodia” re-filed

The International Criminal Court (ICC) Prosecutor has re-filed the Final Decision (2 December 2019) concerning the “Article 53(1) Report” (ICC-01/13-6-AnxA), as revised and refiled, on the Situation on the Registered Vessels Of The Union Of The Comoros, The Hellenic Republic, And The Kingdom Of Cambodia (ICC-01/13).

The Prosecutor maintains her view that the preliminary examination of this situation must be closed and argues that “there remains no reasonable basis to proceed with an investigation, since there is no reasonable basis to conclude that any potential case arising from the situation would be of sufficient gravity to be admissible before the Court”. This decision was taken without prejudice to her conclusion that, “on the information made available, there is a reasonable basis to believe that war crimes were committed by members of the Israel Defence Forces (“IDF”) in the boarding of the Mavi Marmara, and its aftermath, resulting in 10 fatalities, the wounding of as many as 55 people, and outrages upon the personal dignity of potentially many others during the voyage to Ashdod”.

Although Israel is not a State Party, according to article 12(2)(a) of the Rome Statute, the ICC can exercise its jurisdiction in relation to the conduct of non-Party State nationals alleged to have committed Rome Statute crimes on the territory of, or on vessels and aircraft registered in, an ICC State Party. More information is available here.

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Iceland: use of heavy fuel oil in the territorial sea banned

The Government of Iceland (Minister for the Environment and Natural Resources) has issued a regulation tightening fuel requirements for ships, which effectively bans the use of heavy fuel oil in the territorial sea of Iceland. The change is brought about by an amendment to Iceland’s regulation on sulphur content of certain liquid fuels (reglu­gerð nr. 124/​2015). The permissible sulphur content of marine fuels used in the territorial sea and internal waters of Iceland is lowered from 3.5% down to 0.1%. In addition, the permissible sulphur content of marine fuels is lowered down to 0.5% within the Icelandic Pollution Prevention Zone outside of the territorial sea. More information here.

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