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.
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).
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):
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.
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).
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.
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:
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.
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).
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 jurisdiction, 27 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.
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 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.
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.
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”.
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.
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.
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.
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.
The public hearings in the M/V “Norstar” Case (Panama v. Italy) are scheduled to occur 10-15 September 2018, at the International Tribunal for the Law of the Sea (Hamburg, Germany). Members of the general public are requested to register in advance with the Press Office (firstname.lastname@example.org). A live broadcast will also be available (10 a.m. (CET), 10 September 2018).
For more information and the schedule see the ITLOS press release.
The Court of Justice of the European Union (CJEU) has published (11 July 2018) its judgment on Case C-15/17 concerning an oil discharge in the EEZ of Finland by the bulk carrier Bosphorus Queenthat took place in 2011. In its decision, the CJEU interpreted the meaning of the expressions “clear objective evidence” and “coastline or related interests” as used in Article 220(6) of the UNCLOS and Article 7(2) of the EC Directive 2005/35 (as amended by EC Directive 2009/123). The CJEU also held that the assessment of a violation, as defined by said articles, takes into consideration:
– the cumulative nature of the damage on several or all of those resources and related interests and the difference in sensitivity of the coastal State with regard to damage to its various resources and related interests;
– the foreseeable harmful consequences of discharge on those resources and related interests, not only on the basis of the available scientific data, but also with regard to the nature of the harmful substance(s) contained in the discharge concerned and the volume, direction, speed and the period of time over which the oil spill spreads
The judgment, as well as the opinion of the Advocate General (delivered on 28 February 2018), may be found here.
Following its launch in April 2017, The Information System of the Global Record of Fishing Vessels, Refrigerated Transport Vessels and Supply Vessels, was released to the general public on 9 July 2018. Data is provided by the official state authorities (reportedly 48 to-date) who remain responsible.
The FAO published its The State of World Fisheries and Aquaculture 2018, 9 July 2018. SOFIA reports provide a “comprehensive, objective and global view of capture fisheries and aquaculture, including associated policy issues” (FAO). Notably, in 2015 fish stocks within biologically sustainable levels decreased to 66.9%, whilst stocks fished at biologically unsustainable levels increased to 33.1%. Among the FAO’s statistical areas, the Mediterranean and Black Sea had the highest percentage of unsustainable stocks, at 62.2%.
The Agreement on Enhancing International Arctic Scientific Cooperation has entered into force on 23 May 2018. This legally binding agreement was signed last year by the eight members of the Arctic Council. The purpose of this agreement is “to increase effectiveness and efficiency in the development of scientific knowledge about the Arctic”, namely by facilitating access to “civilian research infrastructure and facilities and logistical services”, to the “Identified Geographic Areas” and to “scientific information”. The document calls for each party to designate a “competent national authority” as a point of contact to facilitate communication between and among parties. The text of the agreement may be found here. More information about the signature may be found here (USA), here (Canada) and here (Russian Federation).
The International Maritime Organization (IMO) is hosting a couple of events on port security. The 11 June 2018 special event on ports will maintain the focus of IMO’s World Maritime Day theme for 2017 “Connecting Ships, Ports and People” through a programme of presentations (the outline of the sessions is available here). This will be followed by a symposium on port security operations (12-13 June), co-hosted with the International Organization of Airport & Seaport Police (INTERPORTPOLICE). This second event will focus on the exchange of best practices on port security and law enforcement. More information about these events may be found in the IMO Circular Letter No. 3815 and also here (IMO) or here (INTERPORTPOLICE).
The European Commission has approved under EU State aid rules a Portuguese tonnage tax scheme. Under this scheme, maritime transport companies will pay taxes on the basis of the net tonnage (i.e. the size of the shipping fleet) operated in maritime transport activities rather than on the basis of their taxable profits. In addition, for certain more environmentally-friendly ships, companies can achieve an additional reduction of 10% to 20% of the tax base under the tonnage tax scheme. Moreover, a seafarer scheme exempts seafarers employed on vessels that are eligible under the tonnage tax scheme from paying personal income tax. It also allows them to pay reduced rates of contribution for social insurance. Both the tonnage tax and seafarer schemes will remain in force for ten years. More information is available here. The proposal of the scheme (Proposta de Lei 111/XIII) may be found here (in Portuguese).
The Paris Memorandum of Understanding on Port State Control (Paris MoU) agreed to issue a “Letter of Warning”, starting 1 January 2019, to ensure compliance with the new maximum limits for sulphur in ships fuel oil set by the IMO and which will enter into force a year after that date. The approval of this “information campaign” occurred at the organization’s 51st Committee meeting (7-11 May 2018) where the organization also approved the questionnaire for the Concentrated Inspection Campaign (CIC) on MARPOL Annex VI to be carried out jointly with the Tokyo MoU. More information on the outcome of this meeting may be found here.
The European Commission (EC) has approved a proposal to transpose into EU legislation stronger measures to help the recovery of the Mediterranean swordfish (24 April 2018). The new regulation incorporates the International Convention for the Conservation of Atlantic Tunas (ICCAT) Recommendation 16-05 into EU law. This ICCAT Recommendation establishes a recovery plan that takes into account the specificities of different types of gear and fishing techniques. When implementing the recovery plan, the Union and Member States should undertake to promote coastal fishing activities and the use of selective fishing gear and techniques that reduce the environmental impact, including gear and techniques used in traditional and artisanal fisheries, thereby ensuring a fair standard of living for local fishing communities. That EC proposal may be found here.
Ministers of member states of the United Nations Economic Commission for Europe have adopted a declaration entitled Inland Navigation in a Global Setting. This adoption took place at the International Ministerial Conference on Inland Water, on 18 April 2018. The declaration sets forth a number of strategic actions to improve the competitive position of inland waterways across the globe with the aim of creating a sustainable future for inland navigation. The declaration stresses, among other things, the need for an appropriate regulatory frameworks, and the role that the United Nations Conventions for the sector can play in developing them. The declaration may be found here and more information on the subject may be found here.
The Initial IMO strategy on the reduction of GHG emissions from ships was adopted, 13 April 2018, by the IMO’s Marine Environment Protection Committee (MEPC), during its 72nd session at IMO Headquarters (London, United Kingdom). Previously, MEPC 70 approved a roadmap for developing a Comprehensive IMO strategy on reduction of GHG emissions from ships, scheduled for 2023. The initial strategy includes reduction of carbon intensity (at least 40% by 2030, pursuing efforts towards 70% by 2050), and GHG emissions (at least 50% by 2050 compared to 2008) for international shipping.
The European Commission (Task Force for the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 TEU) has published on 19 March 2018The Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. The document highlights the progress made in the negotiation round with the UK of 16-19 March 2018, with reference to a previous draft of 28 February 2018 (available here). As stated by the UK’s Secretary of State for Exiting the European Union, there has been an agreement on “specific safeguards when it comes to annual fishing negotiations”, adding that through 2020 the UK “will be negotiating fishing opportunities as an independent coastal state, deciding who can access our waters and on what terms”. The Draft Agreement may be found here.
The Legal Service of the Council of the European Union issued its opinion, 1 March 2018, Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC – compatibility with UNCLOS, ST 6738 2018 INIT. The opinion states that:
“The Union does not have jurisdiction to apply energy law on unbundling, transparency, third-party access and regulated tariffs, which is unrelated to the economic exploitation of the EEZ, to pipelines crossing the EEZ of Member States. The application of the Gas Directive to the EEZ would be contrary to Articles 56 and 58 of UNCLOS as interpreted by the Court of Justice” (para. 21).
For more information, see the opinion here. Reference to the opinion was made during an EC press briefing, available here.
On the 14 February 2018 the Philippines Presidential Spokesperson issued a statement objecting to the submissions by China of names for undersea features in the “Benham Rise”, submitted to the Sub-Committee on Undersea Feature Names (SCUFN) of the International Hydrographic Organization. The Philippines will not recognize these names. During a public hearing of the Senate Committee on Science and Technology, 26 February 2018, a reason for the objection was the violation of the Philippines’ sovereign rights, resulting from the lack of consent given to undertake the hydrographic surveys at the basis of the submissions.
For more information see the press releases, here, here, here, here, and SCUFN here. At the time of writing, a video of the hearing was available:
Representatives of governments and the social partners gathered at the International Labour Organization in Geneva on 22-26 January 2018 have adopted a revised code of practice on safety and health in shipbuilding and ship repair. The new code reflects the many changes in the industry, including the use of robotic systems, over the last 43 years since an earlier code was adopted. It focuses on the need for a preventive approach based on occupational safety and health management systems, management of change and safe work plans among others. The draft code may be found here. An overview of the document provided by the NGO IndustriALL Global Union may be found here.
On the 24 December 2017 the United Nations General Assembly (UNGA) adopted the previously postponed Resolution 74/249, 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. This initiates formal negotiations of a new legally binding instrument, convening four intergovernmental conference sessions from 2018 to 2020.
For more information see the final text, released 19 January 2018, available here.
The 72nd Session of the UN General Assembly adopted A/RES/72/73, Oceans and the law of the sea, and A/RES/72/72, 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, on the 5 December 2017. Examples of interest, include the proclamation of the United Nations Decade of Ocean Science for Sustainable Development (A/RES/72/73 para. 292-295) and the notable vote against A/RES/72/72 by the USA, a resolution usually adopted by consensus without a vote.
Action on the draft BBNJ resolution, 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, Doc. A/72/L.7, was postponed, pending a review of its programme budget implications.
For more information see the UN press release here and UNGA 72nd Session resolutions here. The Draft BBNJ resolution (A/72/L.7) may be found here, and the programme budget implications (A/C.5/72/18) here.
On 7 December the European Council of the EU approved a directive which gives legal effect to an agreement between EU social partners in the maritime sector. As a result of the agreement with social partners, amendments to the Maritime Labour Convention made in 2014 can be incorporated into EU law. The objective of the agreement is to protect seafarers’ rights in case of abandonment; the agreement also provides compensation for contractual claims for death or long-term disability of seafarers due to occupational injury, illness or hazard. Thanks to the incorporation of the agreement into EU law, seafarers will be covered by a mandatory financial security system. More information about this agreement may be found here.
The United Nations Environment Assembly of the United Nations Environment Programme (UNEP), gathered in Nairobi, Kenya, has passed a draft resolution on marine litter and microplastics. This is in line with Sustainable Development Goal target 14.1, which seeks, by 2025, to “prevent and significantly reduce marine pollution of all kinds, in particular from land-based activities, including marine debris and nutrient pollution”. The document, dated 5 December 2017, may be found here. More information about the meeting, which included thirteen draft resolutions and three decisions, may be found here.
The member states of the informal group “Arctic-five” (Canada, USA, Russia, Norway, and Greenland/Denmark), together with representatives of other states (Iceland, Japan, South Korea, China and the European Union) have reached agreement on a legally binding international agreement that will protect nearly three million square kilometers of the Central Arctic Ocean from unregulated fishing. The initial term of the agreement is 16 years, after which it will automatically be extended every five years unless a country objects or until science-based fisheries quotas and rules are put in place. The NGO Ocean Conservancy has referred to this as an example of the precautionary approach. This accord comes two years after a previously set moratorium. Evidence of this new agreement may be found here: (Canada) (Norway) (EU).
The UNESCO has published the Global Ocean Science Report. This document assesses for the first time the status and trends in ocean science capacity around the world. The report offers a global record of who, how, and where ocean science is conducted. According to the organization, this is the first collective attempt to systematically highlight opportunities as well as capacity gaps to advance international collaboration in ocean science and technology. The report may be found in all of the UN official languages here.
The European Commission has approved the prolongation of various Belgian support measures for maritime transport. The scheme encourages shipping companies to register their ships in Europe and so ensure higher social, environmental and safety standards. Belgium has committed to a number of changes to its scheme to prevent any discrimination between shipping companies and registries of different European Economic Area (EEA) States and to avoid undue competition distortions. The Belgian authorities have also committed to extend the benefit of tonnage tax to all eligible ships that fly an EEA flag. More information is available here.
On the 26 October 2017, the World Trade Organization (WTO) has issued the compliance panel report on the revised US “dolphin-safe” tuna labeling measure, arising from DS381: United States — Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products. The 2016 Tuna Measures (USA) was found consistent with the requirements set forth in Article 2.1 of the TBT Agreement and justified under Article XX of the GATT 1994.
For more information see the WTO news item here, and case summary page here.
The European Commission is has warned Vietnam about the risk of it being identified as a non-cooperating country. The decision highlights that Vietnam is not doing enough to fight illegal fishing. It identifies shortcomings, such as the lack of an effective sanctioning system to deter IUU fishing activities and a lack of action to address illegal fishing activities conducted by Vietnamese vessels in waters of neighbouring countries, including Pacific Small Island Developing States. Furthermore, the EC argues that Vietnam has a poor system to control landings of fish that is processed locally before being exported to international markets, including the EU. More information is available here.
Following the sinking of the oil tanker “AGIA ZONI II” off Piraeus, on 10 September 2017, Greece has requested for assistance to the Regional Marine Pollution Emergency Response Centre for the Mediterranean Sea (REMPEC). As a result two experts have been mobilised for a mission in Athens, Greece in the framework of the Mediterranean Assistance Unit (MAU). They will provide technical support on sunken oil assessment and removal techniques and efficient oil removal from sandy beaches. More information is available here.
States and non-governmental organizations participating at the 2017 edition of the Our Ocean Conference – An Ocean for Life (previously reported here) have contributed to a vast list of commitments. Those commitments focus on distinct topics: marine pollution, marine protected areas, maritime security, sustainable blue economy, sustainable fisheries, climate change; they are all listed here. Further information on the event may be found here. The map below highlights the 2014, 2015, and 2016 Our Ocean Conference commitments:
The United Nations Security Council (UNSC) has extended until 5 October 2018 its authorization for Member States to intercept vessels suspected of being used for smuggling migrants through Libya. By unanimously adopting resolution 2380 (2017), the UNSC extended the authorization for a third one-year period, the first having been established by resolution 2240 (previously reported here). The UNSC stressed that its authorization of those measures would require good-faith efforts to obtain the consent of the vessel’s flag State prior to any action, and would not supersede sovereign immunity under international law. More information is available here.