Category Archives: International Organizations

BS MoU: Interim Guidance on Repatriation of Seafarers due to the Conflict in Ukraine published

The Secretariat of the Memorandum of Understanding on Port State Control in the Black Sea Region (BS MoU), have agreed on an interim guidance on the issue of repatriation of Ukrainian seafarers, creating a common approach for implementing inspection activities in respect to the repatriation of seafarers. Inter alia, the document encourages Port State Cntrol Officers to show “flexibility” and adopt a “pragmatic approach”, all the while considering that the port State should be assured that seafarers with certificates of competency and associated documentation issued by Ukraine might face difficulties when seeking their renewal. This Interim Guidance on Repatriation of Seafarers due to the Conflict in Ukraine published 10 May 2022 by the BS MoU is available here. A press release from BS MoU dated 19 April 2022 is here.

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UNGA: High-Level Commemorative Meeting on 40th Anniversary of UNCLOS

On 29 April 2022 the 76th Session of the United Nations General Assembly held an event to commemorate the 40th anniversary of the adoption of the United Nations Convention on the Law of the Sea (UNCLOS), entitled, Informal meeting of the plenary to commemorate the fortieth anniversary of the adoption of the United Nations Convention on the Law of the Sea (programme). The event was convened followed a request from the delegations of Denmark, Grenada, Kenya, Portugal and Singapore.

On 30 April 1982, following a request for a recorded vote by the USA, the Third United Nations Conference on the Law of the Sea adopted UNCLOS by 130 votes (in favour) to 4 (against), with 17 abstentions (A/CONF.62/SR.182, paras. 26-28, subject to drafting changes and with 2 delegations not participating in the vote). UNCLOS was formally adopted and opened for signature on 10 December 1982 (A/CONF.62/122).

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EU: Prohibition on Access to Port for Russian Flagged Vessels

On 8 April 2022 the Council of the European Union adopted Council Decision (CFSP) 2022/578, as well as the corresponding regulatory action to ensure uniform application in all Member States (Recital 10), Council Regulation (EU) 2022/576. Council Decision (CFSP) 2022/578 introduced, among other measures, prohibitions on access to EU ports of vessels registered under the flag of Russia and recently reflagged (24 February 2022) vessels formerly registered under the flag of Russia (Article 1(18); inserting Article 4ha into Council Decision 2014/512/CFSP). Article 1(11) of Council Regulation (EU) 2022/576 therefore inserts Article 3ea into Council Regulation (EU) No 833/2014, whereby:

1.   It shall be prohibited to provide access after 16 April 2022 to ports in the territory of the Union to any vessel registered under the flag of Russia.

2.   Paragraph 1 shall apply to vessels that have changed their Russian flag or their registration, to the flag or register of any other State after 24 February 2022.

3.   For the purposes of this Article, a vessel means:

(a) a ship falling within the scope of the relevant international conventions;

(b) a yacht, of 15 metres in length or more, which does not carry cargo and carrying no more than 12 passengers; or

(c) recreational craft or personal watercraft as defined in Directive 2013/53/EU of the European Parliament and of the Council.

4.  Paragraph 1 shall not apply in the case of a vessel in need of assistance seeking a place of refuge, of an emergency port call for reasons of maritime safety, or for saving life at sea.

5.  By way of derogation from paragraph 1, the competent authorities may authorise a vessel to access a port, under such conditions as they deem appropriate, after having determined that the access is necessary for:

(a) the purchase, import or transport into the Union of natural gas and oil, including refined petroleum products, titanium, aluminium, copper, nickel, palladium and iron ore, as well as certain chemical and iron products as listed in Annex XXIV;

(b) the purchase, import or transport of pharmaceutical, medical, agricultural and food products, including wheat and fertilisers whose import, purchase and transport is allowed under this Regulation;

(c) humanitarian purposes;

(d) transport of nuclear fuel and other goods strictly necessary for the functioning of civil nuclear capabilities; or

(e) the purchase, import or transport into the Union of coal and other solid fossil fuels, as listed in Annex XXII until 10 August 2022.

6.   The Member State concerned shall inform the other Member States and the Commission of any authorisation granted under paragraph 5 within two weeks of the authorisation

Article 1(11) of Council Regulation (EU) 2022/576 (footnotes omitted)

For more information see the Council of the EU press release and Official Journal of the European Union, L 111, 8 April 2022.

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EU: Member of North Pacific Fisheries Commission

On 23 March 2022 the European Union (EU) became a Member of the North Pacific Fisheries Commission (NPFC), having acceded to the Convention for the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean. As required for accession under Article 24(2) of the NPFC Convention, existing Members reached consensus on inviting the EU to accede at the 6th Meeting of the NPFC (23-25 February 2021) (COM06 Report, para. 8). The NPFC was unable to reach consensus on the EU’s previous 2018 and 2019 requests to join, and the EU’s 2020 request was not considered due to the COVID-19 pandemic and lack of NPFC Meeting. Some Members expressed concerns over EU fishing activities in the Convention Area, proposing conditions thereof (COM06 Report, para. 10; Annex D). For more information see here and here.

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ROK/Mexico: Proposal to amend 1996 London Protocol – sewage sludge dumping prohibition

On 25 March 2022, the Republic of Korea and Mexico submitted a Proposal to amend Annex 1 to the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes or other Matter, 1972 to remove sewage sludge from the list of wastes or other matter that may be considered for dumping (LC44/10, annexed to Circular Letter No. 4539). The amendment is proposed under Article 21 of the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol) and would entail the deletion of sewage sludge from the list of permissible wastes in Annex 1 of the London Protocol.

If the amendment is adopted, Article 4(1) of the London Protocol will apply to sewage sludge whereby:

Contracting Parties shall prohibit the dumping of any wastes or other matter with the exception of those listed in Annex 1.

London Protocol, Article 4(1).

Note, the governing bodies at the previous Meeting of Parties (43rd London Convention/16th London Protocol) in October 2021 agreed “that there was sufficient evidence and justification for amending Annex 1 to remove sewage sludge from the list of permissible wastes” and “invited a Contracting Party or Parties to the London Protocol to propose an amendment to Annex 1 of the London Protocol to remove sewage sludge from the list of wastes or other matter that could be considered for dumping” (LC 43/17, paras. 10.16-10.24). The proposal is submitted for consideration and adoption at the 17th London Protocol Meeting of Contracting Parties (3-7 October 2022). For more information see the IMO press release.

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ISA/IORA: MoU on Cooperation in Areas of Common Interest

On 18 March 2022, the Secretary-General of the International Seabed Authority (ISA) and the Secretary-General of the Indian Ocean Rim Association (IORA) signed the Memorandum of understanding between the Indian Ocean Rim Association and the International Seabed Authority which aims to “provide a framework of cooperation and facilitate collaboration […] in the areas of common interest” (para. 1). This follows approval of the MoU by the IORA Member States (16 April 2020) and the Council of the ISA (10 December 2021) (ISBA/26/C/13/Add.1, para. 36). Such arrangements on consultation and cooperation by the ISA with international and non-governmental organizations is initiated by the Secretary-General of the ISA by virtue of the competence found in Article 169(1) of UNCLOS. As per Article 169(2) of UNCLOS, IORA now “may designate representatives to attend meetings of the organs of the Authority as observers” and “procedures shall be established for obtaining the views of [IORA] in appropriate cases”.

Areas of co-operation in the MoU, to implement through supplement arrangements (para. 3), include:

(a) To consult, where appropriate and practical, on matters of mutual interest with a view to promoting or enhancing a better understanding and coordination of their respective activities in respect of such matters;
(b) To develop joint capacity-building programmes related to seabed exploration, legal and policy formulation, and environmental management planning;
(c) To cooperate, where appropriate and practical, for the sharing and managing of information and non-confidential data related to offshore hydrocarbon and seabed mineral deposits;
(d) To promote, where appropriate, exchange of information and sharing of technologies related to seabed exploration and mining;
(e) To promote and encourage marine scientific research.

Memorandum of understanding between the Indian Ocean Rim Association and the International Seabed Authority, para. 2 (ISBA/26/C/16, Annex)

See further the ISA press release.

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IMO: Council Decisions on Situation in Black Sea & Sea of Azov

From 10-11 March 2022 the IMO Council virtually held its 35th Extraordinary Session (C/ES.35), addressing, the impacts on shipping and seafarers of the situation in the Black Sea and the Sea of Azov. The IMO Council made decisions on the situation, including: condemnation of “the Russian Federation’s violation of the territorial integrity and the sovereignty of a United Nations Member State, extending to its territorial waters” as inconsistent with the UN Charter and the purposes of IMO as set forth in Article 1 of the IMO Convention; deploring “attacks of the Russian Federation aimed at commercial vessels” threatening maritime safety and the marine environment; and recalling “Ukraine must be afforded, without delay, all its rights in regard to the implementation of the instruments adopted within the framework of this Organization, as a flag State, port State and coastal State”. Decisions of the IMO Council also included the encouragement of “the establishment, as a provisional and urgent measure, of a blue safe maritime corridor” and the welcoming of a series of proposals to support seafarers, directed at coastal states, port states, transit states and states of nationality.

For more information see here and here.

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Arctic Council: 7 Members Temporarily Pause Participation

On 3 March 2022, Canada, the Kingdom of Denmark, Finland, Iceland, Norway, Sweden, and the United States issued a joint statement, entitled, Joint Statement on Arctic Council Cooperation Following Russia’s Invasion of Ukraine, stating “our representatives will not travel to Russia for meetings of the Arctic Council. Additionally, our states are temporarily pausing participation in all meetings of the Council and its subsidiary bodies, pending consideration of the necessary modalities that can allow us to continue the Council’s important work in view of the current circumstances”.

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UK/EU/Canada: entry into port banned for Russian vessels

The United Kingdom (UK) banned Russian owned, operated, controlled, chartered, registered or flagged ships from entering UK ports. The ban entered into force on 1 March 2022 (see The Russia (Sanctions) (EU Exit) (Amendment) (No. 4) Regulations 2022 here and here). See also the UK Department of Transport‘s press release.

The European Parliament adopted on 1 March 2022 a resolution (2022/2564(RSP)) calling for ports of European Union (EU) Member-States to block Russian vessels from entering. This call specifies that the ban should include “ships whose last or next port of call is in the Russian Federation, except in the case of necessary justified humanitarian reasons”.

Canada is also preparing to ban Russian vessels from entering its ports. A press release from the Government of Canada on the matter can be found here .

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UNEP: resolution on binding legal instrument for plastic pollution adopted

The United Nations Environment Assembly of the United Nations Environment Programme adopted on 2 March 2022 a resolution deciding that “the intergovernmental negotiating committee is to develop an international legally binding instrument on plastic pollution, including in the marine environment, which could include both binding and voluntary approaches“. The resolution, entitled “End Plastic Pollution: Towards an internationally legally binding instrument”, was adopted with the conclusion of the three-day UNEA-5.2 meeting. More information is available here and here. A draft version of the resolution can be read here.

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EU: new legislative proposal on illegal discharges from ships under preparation

The European Commission (executive branch of the European Union) is preparing a new legislative proposal revising the Ship-Source Pollution Directive, a common framework outlining how to deal with illegal discharges from ships. This initiative aims at preventing marine pollution by ensuring that any natural or legal persons responsible for the discharge of polluting substances into EU waters are subject to adequate penalties. A public consultation is ongoing, divided into two sections: the first gathers views from citizens and the second targets experts and relevant stakeholders. The consultation is open until 3 March 2022. More information is available here.

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Eritrea: Written Notice of IOTC Agreement Withdrawal

On 5 January 2022, the Indian Ocean Tuna Commission (IOTC) Secretariat issued IOTC Circular 2022-01, which includes a Communication (dated, 3 January 2022) from the the Government of the State of Eritrea on its intention to withdraw “its membership in the IOTC indefinitely as of the beginning of the year 2022”. Eritrea states it has “neither been an active member of the organisation nor did it honoured its financial obligations during the last 20 some years due to unfair, unfounded and unjustified sanctions imposed upon it”. Article XXI(1) of the IOTC Agreement provides that “Withdrawal shall become effective at the end of the calendar year following that in which the notice of withdrawal has been received by the Director- General” (i.e., 2023, unless the Commission makes a determination under Article IV(4)).

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UNGA: Annual Resolutions Adopted on Law of the Sea & Sustainable Fisheries

The United Nations General Assembly (UNGA) adopted two resolutions on the 9 December 2021Resolution 76/72: Oceans and the law of the sea and Resolution 76/71: Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments.

Argentina stressed that certain recommendations contained in Resolution 76/72 cannot be considered as applying to states not parties to the 1994 Implementing Agreement, while Turkey voted against adoption, considering Turkey’s consistent objection to the view that UNCLOS has a “universal and unified character” (131 in favour to 1 against (Turkey) with 4 abstentions (Colombia, El Salvador, Nigeria, Venezuela)). Colombia, El Savador and Venezuela also distanced themselves from the universal nature of UNCLOS as non-parties to UNCLOS. Resolution 76/71 was adopted by consensus without a vote. Discussions (2) leading up to adoption include the position of state representatives on numerous topics, with the impacts of sea-level rise, plastic pollution, the South China Sea and discharges in the Fukushima area arising on several occasions.

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Vacancies: ICJ Judicial Fellowship Programme 2022-2023

The International Court of Justice (ICJ) is currently seeking applications for the 2022-2023 Judicial Fellowship Programme of the International Court of Justice. Normally up to 15 applicants are accepted per year for the full-time (10 month) Judicial Fellow positions. Submissions are welcome until 13 February 2022, but only from nominating universities and not individuals. For more information see here. To see the cases currently pending before the ICJ, including numerous law of the sea cases, see here.

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Antigua and Barbuda/Tuvalu: Accord to Establish Commission of Small Island States on Climate Change & International Law

On 1 November 2021, Prime Minister Gaston Browne (Antigua and Barbuda) and Prime Minister Kausea Natano (Tuvalu) announced the signing of an Accord on 31 October 2021 which establishes a Commission of Small Island Developing States on Climate Change and International Law. The Commission is open to all small island states globally to join. During the Press Conference, the founding members signalled that the Accord authorises the Commission to request an advisory opinion from ITLOS concerning climate change, sea-level rise, protection of the marine environment and international responsibilities. The exact strategy, including potential questions to be put before ITLOS, are to be developed by the Commission. On the advisory opinion jurisdiction of ITLOS, see Articles 16 and 21 of the Statute of the International Tribunal for the Law of the Sea (Annex VI of UNCLOS); Article 138 of the Rules of the Tribunal; and the SRFC Advisory Opinion.

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ITLOS: Junior Professional Officer Programme

As of 30 September 2021, the International Tribunal for the Law of the Sea (ITLOS) has established a Junior Professional Officer Programme for young professionals to serve in the Tribunal’s Registry, including the Legal Office. The Guidelines concerning the Junior Professional Officer Programme of the International Tribunal for the Law of the Sea will govern the programme, which includes the necessity of concluding a memoranda of understanding between the Tribunal and a participating (sponsoring) State for the recruitment of Junior Professional Officer(s) (see Model MoU).

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OSPAR: Designation of North Atlantic Current and Evlanov Sea basin Marine Protected Area

On 1 October 2021, OSPAR held a hybrid ministerial meeting hosted by the Government of Portugal (postponed from June 2020 due to the pandemic), the outcomes of which included a legally binding OSPAR Decision to establish the North Atlantic Current and Evlanov Sea basin Marine Protected Area (NACES MPA). The NACES MPA (595,196 square km) is established in the high seas and seeks to protect a vitally important area for seabirds. For more information see here and here.

For other developments at OSPAR Ministerial 2021, including the adoption of the North-East Altantic Environment Strategy 2030, see here.

Source: OSPAR Commission, NACES MPA

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Ecuador: Preliminary Information submission to CLCS

On 20 September 2021 Ecuador submitted, in respect of three regions, its Preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles to the Commission on the Limits of the Continental Shelf (CLCS). For more information see here.

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UNSC: Presidential Statement on Maritime Security

On 9 August 2021 the United Nations Security Council (UNSC) issued a Statement by the President of the Security Council, first presented by the Prime Minister of India, acknowledging an array of maritime safety and security concerns, as well as affirming the international legal instruments applicable or desirable in combating illicit activities at sea. Collaboration, cooperation and capacity development were highlighted. For more information see UN Doc. S/PRST/2021/15 and the press release.

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ISA: Nauru requests ISA Council to Complete Adoption of Exploitation Regulations

Through a letter dated 25 June 2021, Nauru exercised its rights under Section 1(15)(a) of the 1994 Agreement Relating to the Implementation of Part XI of UNCLOS to request that the Council of the International Seabed Authority (ISA) complete the adoption of the rules, regulations and procedures necessary to facilitate the approval of plans of work for exploitation in the Area. Nauru informed the ISA that a Nauruan entity sponsored by Nauru intends to apply for approval of a plan of work for exploitation in the Area in two years.

According to Section 1(15)(b), following such a request “the Council shall, in accordance with article 162, paragraph 2(o), of the Convention, complete the adoption of such rules, regulations and procedures within two years of the request”. Furthermore, Section 1(15)(c) provides “If the Council has not completed the elaboration of the rules, regulations and procedures relating to exploitation within the prescribed time and an application for approval of a plan of work for exploitation is pending, it shall none the less consider and provisionally approve such plan of work based on the provisions of the Convention and any rules, regulations and procedures that the Council may have adopted provisionally, or on the basis of the norms contained in the Convention and the terms and principles contained in this Annex as well as the principle of non-discrimination among contractors”.

For more information see here.

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WTO: Fisheries Subsidies Draft Negotiating Text

On 11 May 2021 the chair of the fisheries subsidies negotiations introduced the Fisheries Subsidies: Draft Consolidated Chair Text ahead of the 15 July 2021 meeting of ministers. Weekly thematic meetings to assist in finalizing a text will start 24 May 2021.

For further information see the Chair’s explanatory note accompanying the new fisheries subsidies draft negotiating text and WTO press release.

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CLCS: Iceland Partial Revised Submission

On 31 March 2021 Iceland submitted to the Commission on the Limits of the Continental Shelf a Partial Revised Submission in respect of the western, southern and south-eastern parts of Reykjanes Ridge. This region also featured in Iceland’s 2009 Partial Submission in respect of the Ægir Basin Area and the Western and Southern Parts of Reykjanes Ridge, for which the CLCS adopted Recommendations in 2016. The 2021 Revised Partial Submission “is limited to Reykjanes Ridge, as the Icelandic Government agrees with the recommendations provided for the Ægir Basin Area” (Executive Summary).

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CLCS: Russian Federation’s addenda in respect of the Arctic Ocean

On 31 March 2021, the Russian Federation submitted two addenda to the executive summary of the partial revised Submission in respect of the Arctic Ocean. The two addenda, concern: (i) Gakkel Ridge, Nansen and Amundsen Basins, and (ii) Lomonosov Ridge, Alpha Ridge, Mendeleev Rise, Amundsen and Makarov Basins, and the Canadian Basin, respectively. For more information see CLCS.1.REV.2015.LOS.Add1 (Continental Shelf Notification).

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ITLOS: Amendment to the Rules of the Tribunal

On 25 March 2021, pursuant to the Statute of the International Tribunal for the Law of the Sea, Article 16, the International Tribunal for the Law of the Sea (ITLOS) has amended the Rules of the Tribunal (2020 Edition), namely Articles 4-7, 11-13, 16, 19, 31, 36, 39, 42, 45, 76 and 136 (entered into force, 25 March 2021). ITLOS/Press 314 confirms the Rules were amended “with a view to rendering them gender inclusive”. Therefore, references to “he” are now preceded by “she or”, and references to “him” or “his” are now preceded by “her or”. Where possible, “he” is replaced by an office title, such as the President (Article 45) or the Registrar (Article 136). ITLOS does not however have competence to amend the references to he/his/him in the Statute (Article 41, amendments).

For more information see the Amendments (25 March 2021). Note, the differences in language require slightly difference amendments to the french text, Amendments (25 Mars 2021).

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UK/EU: Trade and Cooperation Agreement

The Trade And Cooperation Agreement Between The European Union and The European Atomic Energy Community, of the One Part, and The United Kingdom of Great Britain and Northern Ireland, of the Other Part was agreed among UK and EU negotiators on 24 December 2020 and has been provisionally applied as of 1 January 2021 (pending ratification by the EU). The Trade and Cooperation Agreement provides the framework of UK-EU relations in numerous areas of oceans policy, such as international maritime transport (2.1.2), sustainable development, such as trade and sustainable management of marine biological resources and aquaculture, or greenhouse gas emissions reduction measures at the IMO (2.1.11), fisheries (2.5) and offshore renewable energy in the North Sea (2.1.8).

For more information see the UK summary and European Commission summary. See further the UK’s implementing legislation, the European Union (Future Relationship) Act 2020.

Concerning Gibraltar, the Government of Gibraltar announced on 31 December 2020 that it had reached an in principle agreement with the UK and Spain for a proposed framework for a UK-EU Agreement on Gibraltar’s future relationship with the EU.

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CLCS: Costa Rica/Ecuador joint submission on continental shelf outer limits

The Commission on the Limits of the Continental Shelf (CLCS) reports that on 16 December 2020 the Republic of Costa Rica and the Republic of Ecuador jointly submitted information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured in the Panama Basin. According to the submitting States, this is a partial submission. The consideration of the joint submission will be included in the provisional agenda of the fifty-fourth session of the CLCS. Upon completion of the consideration of the submission, the CLCS shall make recommendations. More information is available here.

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The outer limit of the continental shelf of Costa Rica and Ecuador beyond 200 nautical miles in the Panama Basin (yellow line). Source: Executive Summary of the Joint Partial Submission to the CLCS

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Bangladesh: amended submission on the outer limits of continental shelf lodged

Bangladesh has lodged an amended submission on the limits of its outer continental shelf in the Bay of Bengal to the United Nations (22 October 2020). The original submission to the CLCS was made on 25 February 2011. Subsequently, the maritime boundaries of Bangladesh with Myanmar and India were delimited in 2012 and 2014, through international adjudication process. The amended submission has been made to reflect the successful outcomes of those international processes. The press release from the Permanent Mission of Bangladesh to the United Nations is available  here. The submission, as received by the Commission on the Limits of the Continental Shelf, is available here.

Depiction of the Fixed Point defining the Outer Limits of the Continental Shelf of the People’s Republic of Bangladesh. Source: People’s Republic of Bangladesh Amended Submission to the Commission on the Limits of the Continental Shelf Executive Summary

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ITLOS: Amendment to the Rules of the Tribunal

Pursuant to the Statute of the International Tribunal for the Law of the Sea, Article 16, the International Tribunal for the Law of the Sea (ITLOS) has amended the Rules of the Tribunal (2018 Edition), on the 25 September 2020, namely the addition of Articles 41(7), 74(2), 112(5), 124(3) and 135(1bis) (entered into force, 25 September 2020). In doing so, the Tribunal vests itself with the competence to decide, as an exceptional measure, for public health, security or other compelling reasons, to hold hearings and meetings entirely or in part by video link.

For more information and the text of the new paragraphs see ITLOS Press Release 306.

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Launch of BBNJ Virtual Intersessional Work

Following postponement of the fourth session of IGC on a BBNJ Agreement, the President of the IGC has decided to launch the BBNJ Intersessional Work, entitled, Virtual intersessional work of the Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, from 14 September 2020. The objective is to continue the dialogue on the key pillars of any future BBNJ Agreement, as well as any cross cutting issues.

For more information see here.

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ITLOS: Election of Seven Members of the Tribunal

The Meeting of States Parties to the United Nations Convention on the Law of the Sea (SPLOS) have elected seven Members of the International Tribunal for the Law of the Sea (ITLOS), following three rounds of voting held 24-26 August 2020 (UNCLOS, Annex VI, Article 4; Round 1; Round 2; Round 3).

The States Parties re-elected David Joseph Attard and Markiyan Z. Kulyk and elected Kathy-Ann Brown (Jamaica), Ida Caracciolo (Italy), Jielong Duan (China), María Teresa Infante Caffi (Chile), and Maurice Kamga (Cameroon) (see curricula vitae of candidates nominated by States Parties). The nine year term of each Member will commence 1 October 2020 (Rules of the Tribunal, Article 2).

The term of office for five Members of the Tribunal shall expire 30 September 2020, namely, Tafsir Malick Ndiaye (Senegal), Jean-Pierre Cot (France), Anthony Lucky (Trinidad and Tobago), Zhiguo Gao (China) and Elsa Kelly (Argentina).

For more information see the ITLOS Press Release and the Registrar’s Overview of the Election Procedure.

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ICJ: Amendments to the Rules of Court

On 25 June 2020 the International Court of Justice (ICJ) amended the Rules of Court, adding a new Article 59(2) and amending Article 94(2):

Article 59

1. The hearing in Court shall be public, unless the Court shall decide otherwise, or unless the parties demand that the public be not admitted. Such a decision or demand may concern either the whole or part of the hearing, and may be made at any time.

2. The Court may decide, for health, security or other compelling reasons, to hold a hearing entirely or in part by video link. The parties shall be consulted on the organization of such a hearing.

Article 94

1. When the Court has completed its deliberations and adopted its judgment, the parties shall be notified of the date on which it will be read.

2. The judgment shall be read at a public sitting of the Court. The Court may decide, for health, security or other compelling reasons, that the judgment shall be read at a sitting of the Court accessible to the parties and the public by video link. The judgment shall become binding on the parties on the day of the reading.

The amendments entered into force 25 June 2020. Thus, the public hearing on the question of the ICJ’s jurisdiction in the case concerning the Arbitral Award of 3 October 1899 (Guyana v. Venezuela)scheduled for 30 June 2020, will be via videoconference. The representatives of Guyana will address the Court by video link and the public may follow via a live webcast. This dispute extends to a law of the sea dispute, as evident in Guyana’s Application instituting proceedings (paras. 53, 55).

For more information see Press Releases No. 2020/16 and No. 2020/17.

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Singapore/ITLOS: Model Agreement for the Provision of Facilities to ITLOS

On the 11 June 2020 Singapore and the International Tribunal for the Law of the Sea (ITLOS) signed the Model Agreement: Agreement for the provision of facilities for the International Tribunal for the Law of the Sea / a Chamber of the International Tribunal for the Law of the Sea to sit or otherwise exercise its functions in the Republic of Singapore in [case name]. The Model Agreement establishes the terms and conditions under which the Singapore government shall provide appropriate facilities for the Tribunal, or a Chamber of the Tribunal, to sit or otherwise exercise its functions in Singapore (art. 2).

The Model Agreement enables ITLOS to implement Article 1(3) of UNCLOS Annex VI, whereby the Tribunal may sit and exercise its functions outside of Hamburg (Germany) whenever it considers this desirable. Consultations concerning Singapore as a seat for the Tribunal began in 2007, resulting in the 2015 Joint Declaration Signed between Ministry of Law and President of the Tribunal (2). Negotiations on the terms of the Model Agreement, as per Article 7 of the Agreement on the Privileges and Immunities of the International Tribunal for the Law of the Sea, concluded in October 2019.

For more information see the Model Agreement, the Model Annex and the Joint Press Release (ITLOS/Press 239); Joint Press Release (ITLOS/Press 303).

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UK: Fisheries Framework Agreement draft negotiating document published

The United Kingdom published (April 2020) a Draft Working Text for a Fisheries Framework Agreement between the United Kingdom of Great Britain and Northern Ireland and the European Union. The preamble of this document states that:

The UK proposal reflects the fact that, at the end of 2020, the UK will be an independent coastal State and will no longer be bound by the Common Fisheries Policy, and that the current arrangements on quota-sharing will end. In line with the UK’s commitment to best available science, future fishing opportunities should be based on the principle of zonal attachment. The UK proposal is based on relevant international precedents, including the EU’s separate fisheries agreements with other coastal states. Through this agreement, and the annual negotiations it provides for, the UK would fulfil its obligations under UNCLOS to cooperate with the EU on the sustainable management of shared stocks.

The document calls for “annual negotiations on fishing opportunities and access” (Article 2). It proposes that any vessels granted access to fish in the relevant waters must “obtain an authorisation and a licence” (Article 3.1) before commencing fishing operations and that “each Party shall manage its own fisheries independently and may take such measures in its relevant waters as it considers appropriate to ensure the rational and sustainable management of fisheries” (Article 4.1). The document is available here.

A Draft text of the Agreement on the New Partnership with the United Kingdom, which includes a chapter on fisheries, was published (18 March 2020) by the European Union. It is available here.

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CLCS: Vietnam and China Communications on Malaysia’s Partial Submission

April 2020 witnessed 3 further communications being submitted to the Commission on the Limits of the Continental Shelf (CLCS) concerning the Partial Submission by Malaysia in the South China Sea. On the 10 April 2020 Vietnam submitted Communication dated 10 April 2020 (Viet Nam 1) responding to the CLCS Submission by the Government of Malaysia. Vietnam also submitted Communication dated 10 April 2020 (Viet Nam 2) responding to the previously reported Communications dated 6 March 2020 (Philippines 1 and 2). On the 17 April 2020 China submitted Communication dated 17 April 2020 (China) responding to Communications dated 10 April 2020 (Viet Nam 1 and 2), as well as the previously reported Communication dated 30 March 2020 (Viet Nam).

For further information see the previous posts (1) and (2) and here.

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Compilations of textual proposals for consideration at fourth session of IGC on BBNJ Agreement

Accompanying the previously reported Revised Draft Text of A BBNJ Agreement, the President of the Intergovernmental Conference (IGC) invited delegations to submit by the 3 February 2020 (extended to 20 February 2020) textual proposals for consideration at the fourth session. The secretariat (DOLAS) was requested to produce a compilation of proposals received by that deadline (A/CONF.232/2020/3, para. 9). DOLAS has released two compilations dated 15 April 2020:

For more information see the documents page for the fourth substantive session.

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CLCS: Philippines and China Communications on Malaysia’s Partial Submission

March 2020 witnessed 3 further communications being submitted to the Commission on the Limits of the Continental Shelf (CLCS) concerning the Partial Submission by Malaysia in the South China Sea. On the 6 March 2020, the Philippines submitted Communication dated 6 March 2020 (Philippines 1) responding to the previously reported Communication dated 12 December 2019 (China). The Philippines also submitted Communication dated 6 March 2020 (Philippines 2) responding to CLCS Submission by the Government of Malaysia. On the 23 March 2020 China submitted Communication dated 23 March 2020 (China) which responds to Philippines Communications 1 and 2.

For further information see the previous post and here.

Update (03/04/2020): On the 30 March 2020 Vietnam submitted Communication dated 30 March 2020 (Viet Nam), responding to China’s Communications, dated 12 December 2019 and 23 March 2020 respectively.

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WTO: Japan initiates second complaint on Korean shipbuilding

Japan has initiated a second World Trade Organization (WTO) dispute complaint regarding Korean support for shipbuilders. Japan has requested WTO dispute consultations with Korea regarding alleged subsidies provided by the Korean government to its shipbuilding industry. The request is the second filed by Japan concerning support measures for Korea’s shipbuilders.  Japan initiated its first WTO complaint in November 2018.

Japan claims the challenged measures, which include funds, loans, guarantees, insurance and other financing, are inconsistent with the WTO’s Agreement on Subsidies and Countervailing Measures (SCM Agreement) and the General Agreement on Tariffs and Trade (GATT) 1994. Japan’s request was circulated to WTO members on 10 February 2020. This request for consultations is available here.

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UNGA: Annual Resolutions Adopted on Law of the Sea & Sustainable Fisheries

The United Nations General Assembly (UNGA) adopted two resolutions on the 10 December 2019, Resolution 74/19 Oceans and the law of the sea (draft text) and Resolution 74/18 Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments (draft text).

Turkey voted against adoption of the text of Resolution 74/19 on the basis it does not agree UNCLOS has a “universal and unified character” (135 votes in favour, 1 against (Turkey), and 3 abstentions (Colombia, El Salvador, Venezuela)). Resolution 74/18 is adopted by consensus without a vote. Numerous states were critical of the failure to reach consensus on paragraphs addressing the findings of IPCC Special Report on the Ocean and Cryosphere in a Changing Climate. The adopted Resolutions only ‘note with concern’ the findings of that report (Resolution 74/19, para. 201; Resolution 74/18, para. 11).

For further information the final texts will be available at Resolution 74/19 and Resolution 74/18.

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Malaysia: Partial Submission to CLCS on Outer Limits of the Continental Shelf (South China Sea)

In accordance with Article 76(8) of UNCLOS Malaysia has on 12 December 2019 made a partial submission to the Commission on the Limits of the Continental Shelf (CLCS) regarding its continental shelf in the northern part of the South China Sea. According to Malaysia (Ex Summary, paras. 1.2-1.4), this partial submission concerns the remaining portion of the Malaysian continental shelf in the South China Sea not covered by the 2009 Joint Submission by Malaysia and Viet Nam ‘in the southern part of the South China Sea’.

Malaysia's Illustration of Partial Submission

Figure 1.1 The Outer Limits of the Continental Shelf in the South China Sea (Ex Summary, p. 4).

China has submitted a Communication dated 12 December 2019 which requests the CLCS to not consider the Malaysian Submission due to the existence of a land or maritime dispute (Article 5(a) of Annex I of the Rules of Procedure of the CLCS). Malaysia rejects the existence of any dispute (Ex Summary, para. 4.1).

For more information see here, Executive Summary, Note dated 12 December 2019 from the Permanent Mission of Malaysia and the Communication dated 12 December 2019 (China).

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IGC President’s Revised Draft Text of A BBNJ Agreement

The President of the Intergovernmental Conference (IGC) on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction has released an advanced version of the revised text, entitled, Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction27 November 2019. This was requested at the closing of the third session and aims “to enable delegations to take stock and to facilitate further progress in the negotiations at the fourth session of the Conference”. The fourth session will take place in 2020.

For the revised draft text see here. An outline of changes made to the first draft text is available here.

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ICJ: Amendments to the Rules of Court

On the 21 October 2019 the International Court of Justice (ICJ) adopted amendments to Articles 22, 23, 29, 76 and 79 of its Rules of Court (entry into force 21 October 2019). Of particular interest is the amendment to Article 76(1) to “clarify” the Court has the power to revoke or modify provisional measures on its own initiative:

1. At the request of a party or proprio motu, the Court may, at any time before the final judgment in the case, revoke or modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification.

The ICJ may, for example, prescribe provisional measures in a case submitted to it by way of Articles 287 and 290 of UNCLOS. For an example of previous requests on the basis of Article 41 of the ICJ Statute and (former) Article 76 of the Rules of Court see the submissions of both Costa Rica and Nicaragua in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Order of 16 July 2013, Provisional Measures, I.C.J. Reports 2013, p. 230.

For further information see ICJ Press Release No. 2019/42 (21 October 2019).

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EMSA: guidance on ship inspections by port States published

The European Maritime Safety Agency (EMSA) has published a new guidance on inspections of ships by the Port States in accordance with Regulation 1257/2013 on Ship Recycling (SRR). The aim of this EMSA guidance is to assist the Member States and their designated inspectors in their efforts to fulfil the requirements of SRR and Port State Control (PSC) Directive, in relation to inspections covering the respective requirements of these two instruments. It is a reference document that provides both technical information and procedural guidance thus contributing to harmonised implementation and enforcement of the provisions of the SRR and the PSC Directive. The Guidance is available here.

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ILC: Study Group on sea-level rise in relation to international law established

The United Nations International Law Commission (ILC) has decided to include the topic “sea-level rise in relation to international law” in its programme of work and established a Study Group. The Study Group will focus on the subject of sea-level rise in relation to the law of the sea. The ILC expects to receive, by 31 December 2019, examples from States of their practice that could be relevant (even if indirectly) to sea-level rise or other changes in circumstances of a similar nature. Such practice could, for example, relate to baselines and where applicable archipelagic baselines, closing lines, low-tide elevations, islands, artificial islands, land reclamation and other coastal fortification measures, limits of maritime zones, delimitation of maritime boundaries, and any other issues relevant to the subject. More information is available here.

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IGC President’s Draft Text of A BBNJ Agreement

The President of the Intergovernmental Conference (IGC) on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction has released an advanced version of the text, entitled, Draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 25 June 2019. This was produced in response to a request during the second session of the IGC. Its aim is “to facilitate further progress in the negotiations”.

For the draft text, see here.

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Canada: Partial Submission to CLCS on Outer Limits of the Continental Shelf (Arctic Ocean)

In accordance with Article 76(8) of UNCLOS, Canada has on 23 May 2019 made a partial submission to the Commission on the Limits of the Continental Shelf (CLCS) regarding its continental shelf in the Arctic Ocean. The submission will be included in the provisional agenda of the fifty-second session of the CLCS.

For further information and an executive summary see here and the press release. This follows the 11 April 2019 partial submission of Indonesia in respect of an area North of Papua (Eauripik Rise) and the 26 March 2019 partial submission of Mauritius concerning the Southern Chagos Archipelago region.

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CLCS: Bouvetøya outer continental shelf limits clarified

The Commission on the Limits of the Continental Shelf (CLCS) has clarified the extent of the continental shelf beyond 200 nautical miles outside Bouvet Island (Bouvetøya). The CLCS recommendation is in line with Norway’s proposal submitted in 2009 and revised in 2015. This means that the Norwegian continental shelf surrounding the island amounts to about 683,730 km2, of which 195,120 km2 is beyond 200 nautical miles. The CLCS recommendation gives Norway a basis for determining the extent of the shelf outside Bouvet Island with binding effect. The Statement by the CLCS Chair, dated 29 March 2019, may be found here.

bouvet_sokkel.jpg

The continental shelf at Bouvetøya. Source: Ministry of Foreign Affairs of Norway.

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IMO: FAL Convention amendments on electronic information exchange come into effect

A mandatory requirement for national governments to introduce electronic information exchange between ships and ports is coming into effect. The requirement, mandatory under IMO’s Convention on Facilitation of International Maritime Traffic (FAL Convention), is part of a package of amendments under the revised Annex to the FAL Convention, adopted in 2016.  The FAL Convention encourages use of a “single window” for data, to enable all the information required by public authorities in connection with the arrival, stay and departure of ships, persons and cargo, to be submitted via a single portal, without duplication. The FAL Convention amendments make it mandatory for ships and ports to exchange FAL data electronically from 8 April 2019.  More information is available here and here.

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CBD: new EBSAs in the Baltic agreed to

A final step for nine ecologically unique marine areas in the Baltic Sea to be included in a global registry was taken during the UN Biodiversity Conference held in Sharm El-Sheikh, Egypt, from 17 to 29 November 2018. Altogether, the nine so-called Ecologically or Biologically Significant Marine Areas (EBSAs) cover 23 percent of the Baltic Sea waters. The new EBSAs were identified in Helsinki earlier in February 2018 during the Baltic EBSA workshop convened by the UN Secretariat of the Convention on Biological Diversity. More information is available here.

The nine new EBSAs in the Baltic Sea. Source: HELCOM

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IMO: ban on non-compliant fuel oil carriage adopted

The International Maritime Organization (IMO) adopted an amendment to support consistent implementation of the forthcoming 0.50% limit on sulphur in ships fuel oil. The complementary MARPOL amendment will prohibit the carriage of non-compliant fuel oil for combustion purposes for propulsion or operation on board a ship – unless the ship has an exhaust gas cleaning system (“scrubber”) fitted. Installing a scrubber is accepted by flag States as an alternative means to meet the sulphur limit requirement. The complementary amendment is expected to enter into force on 1 March 2020. The  press release of the IMO is available here.

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ITLOS: Amendment to the Rules of the Tribunal

Pursuant to the Statute of the International Tribunal for the Law of the Sea, Article 16, the International Tribunal for the Law of the Sea (ITLOS) has amended the Rules of the Tribunal, on the 25 September 2018, namely Articles 60(2) and 61(3). Both provisions have been amended through the addition of:

“If the Tribunal is not sitting, its powers under this article may be exercised by the President of the Tribunal, but without prejudice to any subsequent decision of the Tribunal.”

The amendments immediately entered into force. The rationale for amendment given by the Tribunal was “in the interest of the efficient and cost-effective administration of justice”.

For further information see the Amendments (25 September 2018) and ITLOS Press Release 275.

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