On 22 May 2023, the United States and Papua New Guinea concluded, among others, an Agreement Concerning Counter Illicit Transnational Maritime Activity Operations, which “addresses a range of maritime threats including illegal, unreported, and unregulated (IUU) fishing, drug trafficking, migrant smuggling, and illicit transport of weapons of mass destruction (WMD)”. The text is not yet public, but the press release notes the inclusion of shiprider arrangements, maritime interdiction mechanisms and maritime domain awareness, among others. Other similar bilateral agreements on maritime interdiction, law enforcement and shipriders have been concluded previously, including similar titles, such as, USA/Nauru (2011), USA/Senegal (2011), USA/Tuvalu (2011), USA/Samoa (2012), USA/Micronesia (2014) and USA/Seychelles (2021).
Category Archives: State Practice
USA/PNG: Agreement Concerning Counter Illicit Transnational Maritime Activity Operations
Filed under State Practice, Treaties
Russia: Extension of Participation in Black Sea Grain Initiative
As previously reported, the extension of the Black Sea Grain Initiative in March 2023 was subject to differing statements on the period of renewal. On 17 May 2023, it was confirmed (2) that the Russian Federation aligned its position with the other parties and will also continue its participation in the Black Sea Initiative for another 60 days. Ukraine welcomed ‘unblocking‘ of the agreement, following Ukraine’s previous objections (17 April 2023) to claimed interference in the inspection plan. On 15 May 2023, the UK likewise objected to delays and the blocking of vessel inspections, called for a sustained and stable deal, and “urge Russia to stop threatening to leave the initiative”. An update (8 May 2023) from the Office of the UN Coordinator for the Black Sea Grain Initiative confirmed “[s]ince 1 May, the JCC inspection rate has dropped significantly”, with no inspections on 7-8 May 2023. As of 8 May 2023, the total exports of grain and foodstuffs under the Initiative is 29,798,277 metric tonnes, while there have been no exports of fertilizers so far. Official reports (2) concerning a quadrilateral meeting between Ukraine, Türkiye, Russia and the UN on 10-11 May 2023 involved discussions of “the recent proposals by the United Nations, namely the resumption of the Togliatti-Odesa ammonia pipeline, the longer extension of the deal, improvements at the Joint Coordination Centre for stable operations and exports, as well as other issues raised by the parties”.
Filed under International Organizations, State Practice
Nigeria: The M/T ‘Heroic Idun’ Domestic Proceedings
On 3 May 2023 the Nigerian Navy published a press release providing an update on the domestic proceedings concerning the M/T ‘Heroic Idun‘ incident of August 2022, from the perspective of the Nigerian Navy. Following the domestic proceedings previously reported, according to the Nigerian Navy, on 10 January 2023 the ship and crew were charged at the Federal High Court in Port Harcourt, whereupon M/T ‘Heroic Idun‘ “and her 26 foreign crew pleaded guilty and elected voluntarily to enter into a plea bargain agreement with the Federal Republic of Nigeria as well as make restitution to the Federal Government”. The owners are said to have made the plea bargain under Section 270(1)(a) of the Administration of Criminal Justice Act 2015, which “was in the interest of justice, the public and for public policy interest” (thus, presumably accepted by the prosecutor under Section 270(3) of the Administration of Criminal Justice Act 2015). According to the Nigerian Navy press release, the court ordered release of the M/T ‘Heroic Idun‘ and crew is conditional on the terms of the plea bargain agreement being first fulfilled, as agreed, which include the M/T ‘Heroic Idun‘ “and its owners are to pay fines to the Federal Government and make an apology to the Federal Republic of Nigeria in print and electronic media as well as Llyod’s list. On its part, the Federal Government agreed not to further criminally prosecute and/or investigate the vessel, her owners, charterers or her crew in the matter of her crime against the State”. For more information see the related international proceedings concerning the M/T ‘Heroic Idun‘, previously reported.
Update 15 May 2023: On 12 May 2023 a public apology by the owners of the M/T ‘Heroic Idun‘ to the Federal Government of Nigeria was published in Lloyd’s List. The apology concerns the reporting of the approach of a Nigerian patrol vessel “as what was thought at the time to be a possible piracy attack”. The apology has been acknowledged and re-circulated by the Nigerian Navy and Nigerian Government.
Filed under State Practice
Tuvalu: MoU Signed with Sea Shepherd on Collaborative Fisheries Patrols and Enforcement
On 10 May 2023 the Government of Tuvalu signed a Memorandum of Understanding (MoU) with Sea Shepherd Global concerned with combatting illegal, unreported, and unregulated (IUU) fishing in Tuvalu’s EEZ (Tuvalu Department of Foreign Affairs). This represents the first collaboration law enforcement arrangement between the NGO and a coastal state in the Pacific region, previous examples involving Sea Shepherd assistance arrangements with Gabon, Liberia, Tanzania, The Gambia, Benin, São Tomé and Príncipe, Sierra Leone and Namibia (Sea Shepherd Global Press Release). Under the terms of the MoU, Sea Shepherd will provide a designated vessel, Allankay, at no-cost to the government of Tuvalu to support law enforcement efforts through at-sea patrols. Under the terms of the MoU, Tuvalu will station a detachment from the Tuvalu Police Service aboard the Allankay with the authority to board, inspect, and arrest fishing vessels engaged in IUU activity in the EEZ of Tuvalu.
Filed under Non-State Actors, State Practice
EU: Extension of Emission Trading Scheme to Maritime Transport
On 25 April 2023 the Council of the EU adopted a series of laws which will provide for the inclusion of maritime transport within the EU Emission Trading Scheme (EU ETS). The vote in the Council is the last step of the decision-making procedure, a procedure initiated in 2013 when the Commission adopted a strategy for progressively integrating maritime transport emissions into the European Union’s policy for reducing greenhouse gas emissions. The Directive of the European Parliament and of the Council amending Directive 2003/87/EC establishing a system for greenhouse gas emission allowance trading within the Union and Decision (EU) 2015/1814 concerning the establishment and operation of a market stability reserve for the Union greenhouse gas emission trading system (2023) provides the necessary amendments “to include maritime transport activities in the EU Emissions Trading System (EU ETS) in order to ensure that those activities contribute their fair share to the increased climate objectives of the Union as well as to the objectives of the Paris Agreement”, while the Regulation of the European Parliament and of the Council amending Regulation (EU) 2015/757 in order to provide for the inclusion of maritime transport activities in the EU Emissions Trading System and for the monitoring, reporting and verification of emissions of additional greenhouse gases and emissions from additional ship types (2023) provides the necessary amendments to the MRV Regulation to take account of said extension of the EU ETS to maritime transport and related updates, namely “to provide for monitoring, reporting and verification rules that are necessary for an extension of the EU ETS to maritime transport activities and to provide for the monitoring, reporting and verification of emissions of additional greenhouse gases and emissions from additional ship types” (Recitals 8 & 12, emphasis added). Once published in Official Journal of the EU the directive and regulation will be legally binding.
Of note in respect of its relations to developments of a global market-based mechanism through the International Maritime Organization (IMO):
Efforts to limit global maritime emissions through the IMO are under way and should be encouraged, including the rapid implementation of the Initial IMO Strategy on Reduction of Greenhouse Gas Emissions from Ships, adopted in 2018, which also refers to possible market-based measures to incentivise greenhouse gas emission reductions from international shipping. However, while recently there has been progress in the IMO, this has so far not been sufficient to achieve the objectives of the Paris Agreement. Given the international character of shipping, it is important that the Member States and the Union within their respective competences work with third countries to step up diplomatic efforts to strengthen global measures and make progress on the development of a global market-based measure at IMO level.
Directive 2003/87/EC (as amended April 2023), Recital 19.
Directive 2003/87/EC (as amended April 2023), Article 3gg(1) addresses the EU response “in the event of the adoption by the International Maritime Organization (IMO) of a global market-based measure to reduce greenhouse gas emissions from maritime transport”, while Article 3gg(2) addresses the EU response “in the event that the IMO does not adopt by 2028 a global market-based measure to reduce greenhouse gas emissions from maritime transport in line with the objectives of the Paris Agreement and at least to a level comparable to that resulting from the Union measures taken under this Directive”.
Filed under International Organizations, State Practice
IOTC: Resolution on DFADs & IOTC Members Objections
A Special Session of the Indian Ocean Tuna Commission (SS6) was held 3-5 February 2023 (Kenya), with the stated objective “the aim of the Special Session is to adopt a conservation and management measure on Fish Aggregating Devices”. This followed inaction on the issue at the 26th Session in May 2022. The 6th Special Session (IOTC Circular 2023-09) adopted Resolution 23-01 On management of Anchored Fish Aggregating Devices (AFADs) and Resolution 23-02 On Management of Drifting Fish Aggregating Devices (DFADs) in the IOTC area of competence, the latter adopted by a two-thirds majority vote.
Pursuant to Article IX of the IOTC Agreement, a number of Members have since formally objected to Resolution 23-02, namely Comoros (IOTC Circular 2023-11), Seychelles (IOTC Circular 2023-19), European Union (IOTC Circular 2023-26), Oman (IOTC Circular 2023-12), Philippines (IOTC Circular 2023-20), Kenya (IOTC Circular 2023-14), and Somalia (IOTC Circular 2023-18; IOTC Circular 2023-22 objection since withdrawn). In response to some of the statements made on Resolution 23-02, Indonesia circulated a statement “countering the misinterpretation of Resolution 23-02”, its statement representing a shared understanding by “a number” of the other Resolution 23-02 co-sponsoring states (IOTC Circular 2023-24).
Filed under International Organizations, State Practice
Ukraine/Türkiye/Russia: Extension of Black Sea Grain Initiative
The previously reported Black Sea Grain Initiative foresees a renewal of 120 days, as previously occurred, in Paragraph 5(H):
H. This initiative will remain in effect for 120 days from the date of signature by all Parties and can be extended automatically for the same period, unless one of the Parties notifies the other of the intent to terminate the initiative, or to modify it.
Initiative on the Safe Transportation of Grain and Foodstuffs from Ukrainian Ports
On 14 March 2023, the deadline of possible expiry, the Black Sea Grain Initiative was renewed by the parties, with the UN Secretariat continuing to reference the previously reported MoU on Russian Food Products and Fertilizers between Russia and UN Secretariat, which expires 22 July 2025 (Paragraph 6). The UN Secretary-General press release is silent on the length of extension, however the Ministry for the Restoration of Ukraine refers to a 120 days extension, while the Ministry of Foreign Affairs of Russia refers to 60 days extension, with the possibility that after 60 days there will be a further decision on extension or “[Russia’s] participation in the Black Sea Initiative will be suspended”.
Filed under International Organizations, State Practice
Norway: Judgment in SIA North Star Ltd v. Staten v/Nærings- og fiskeridepartementet
On 20 March 2023 the Supreme Court of Norway handed down its SIA North Star Ltd v. Staten v/Nærings- og fiskeridepartementet, Judgment HR-2023-491-P (sak nr. 22-134375SIV-HRET). The case concerned the applicability of Articles 1-3 of the Treaty concerning the Archipelago of Spitsbergen (Svalbard Treaty) towards the continental shelf off Svalbard, principally:
Article 1
The High Contracting Parties undertake to recognise, subject to the stipulations of the present Treaty, the full and absolute sovereignty of Norway over the Archipelago of Spitsbergen…Article 2
Ships and nationals of all the High Contracting Parties shall enjoy equally the rights of fishing and hunting in the territories specified in article 1 and in their territorial waters…Article 3
Treaty concerning the Archipelago of Spitsbergen 2 LNTS 7
The nationals of all the High Contracting Parties shall have equal liberty of access and entry for any reason or object whatever to the waters, fjords and ports of the territories specified in Article 1; subject to the observance of local laws and regulations, they may carry on there without impediment all maritime, industrial, mining and commercial operations on a footing of absolute equality.
They shall be admitted under the same conditions of equality to the exercise and practice of all maritime, industrial, mining or commercial entreprises both on land and in the territorial waters, and no monopoly shall be established on any account or for any entreprise whatever…
The Supreme Court of Norway found that Article 1 affirms Norway’s full and absolute territorial sovereignty over Svalbard, subject only to stipulations and limitations derived from the Svalbard Treaty. Residual rights remain with Norway. Within this context, the term “territorial waters” in Articles 2 and 3 was historically used at the time to refer to the internal waters and territorial sea of a coastal state. The court rejected an argument for an evolutionary interpretation so as to include the continental shelf within territorial waters and thus Articles 2 and 3 for lack of basis. Such a development would have required an agreed amendment. Therefore, the default rules under UNCLOS apply whereby foreign nationals do not have a right of fisheries access or exploitation on the continental shelf (Article 77 of UNCLOS).
For more information see here.
Filed under Jurisprudence, State Practice
USA: Withdrawal of Certain Areas off the United States Arctic Coast of the Outer Continental Shelf from Oil or Gas Leasing
The President of the United States of America announced a decision (13 March 2023) to withdraw from disposition by oil or gas leasing for a time period without specific expiration the areas designated as the Beaufort Planning Area of the Outer Continental Shelf. According to the memorandum published by the White House, the withdrawal prevents consideration of withdrawn areas for any future oil or gas leasing for purposes of exploration, development, or production, but nothing in this withdrawal affects rights under existing leases in the withdrawn areas. The Memorandum for the Secretary of the Interior is available here. This comes after the U.S. Interior Department issued a Record of Decision regarding the proposed Willow Master Development Plan in the National Petroleum Reserve-Alaska (source).
Filed under State Practice
Singapore/Indonesia: Domestic Ratification of 2022 Expanded Framework Agreements
On 17 January 2023 the Ministry of Foreign Affairs of Singapore confirmed that Singapore has completed its domestic legal processes to ratify the bilateral instruments which make up the 2022 Expanded Framework Agreements with Indonesia, namely, the Agreement on the Realignment of the Boundary between the Jakarta Flight Information Region (FIR) and the Singapore FIR, the Treaty for the Extradition of Fugitives and the Defence Cooperation Agreement. This follows Indonesia’s ratification of the FIR Agreement in September 2022 and the Extradition Treaty and DCA in December 2022. Consistent with the 2022 Exchange of Letters, Singapore and Indonesia will exchange formal notifications of completion and “jointly seek approval from the International Civil Aviation Organization (ICAO) for the arrangements under the FIR Agreement, to enable the simultaneous entry into force of all three agreements on a mutually agreed date”.
Filed under State Practice
CLCS: Partial Revised Submission by Russia (Arctic Ocean II)
On 14 February 2023, the Russian Federation submitted to the Commission on the Limits of the Continental Shelf (CLCS), in accordance with Article 76, paragraph 8, of the Convention, and with reference to its Submission of 20 December 2001, and of it Partial Revised submission of 3 August 2015 (with addenda submitted on 31 March 2021) in respect of the Arctic Ocean, information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of its territorial sea is measured in respect of the southeastern part of the Eurasian Basin in the Arctic Ocean. An Executive Summary of the Partial Revised Submission (2023) is available. This partial revised submission addresses one of the CLCS recommendations issued in February 2023 (previously reported), namely that the outer limits of the continental shelf in the southern part of the Amundsen Basin should be defined in a partial revised submission for this area. This represented the third partial revised submission Russia has submitted to the CLCS, of which, to-date, two concern the Arctic Ocean.
Filed under State Practice
Further Refreshed Draft Text of a BBNJ Agreement
Pursuant to General Assembly Resolution 77/248 (para. 275), the resumed fifth session 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 is currently being held, 20 February – 3 March 2023, at UNHQ (New York, USA). In preparation for the resumed fifth session, a Further refreshed 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 (12 December 2022) (see further, tracked changes version) was made public on 1 February 2023. Furthermore, on 1 February 2023 the Compilation of outcomes of small group work submitted after the issuance of the Refreshed draft text and Ending point of the Facilitators-led discussions held on 26 August 2022 was made public. For further information see previous reporting.
Filed under International Organizations, State Practice
Japan: Position on Preserving Maritime Zones
On 6 February 2023, during a meeting of the Minister for Foreign Affairs of Japan and a delegation of the Pacific Islands Forum, the Minister for Foreign Affairs of Japan stated (2) the position Japan has adopted concerning the question of the preservation of lawfully established maritime baselines and zones in light of climate change-related sea-level rise:
“[W]ith regard to climate-change-related sea-level rise, Japan has decided to take the position that it is permissible to preserve the existing baselines and maritime zones established in accordance with the United Nations Convention on the Law of the Sea (UNCLOS), notwithstanding the regression of coastlines and the PIF side welcomed Japan’s decision”
Foreign Minister Hayashi’s Meeting with the Delegation of the Pacific Islands Forum (PIF) (Japan MoFA, 6 February 2023)
See further, previous reporting USA, PIF, Fiji/Solomon Islands. The reference to “established in accordance with the United Nations Convention on the Law of the Sea (UNCLOS)” suggests excessive baselines will not only remain unrecognised, but also that the outer limit of a coastal state’s entitlements may be subject to landward retreat following seal-level rise induced regression of the coastline until such time as consistent and fixed baselines are established thereof.
Filed under State Practice
ICJ Core Group of Nations: Final Draft Resolution for ICJ AO Initiative
Following previously reported draft resolutions and consultations, on 20 February 2023, the ICJ Core Group of Nations, led by the Republic of Vanuatu, released a Final Draft Resolution entitled, Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change, for consideration of co-sponsorship by 1 March 2023. Adoption by the UN General Assembly is expected to be sought by proponents in March/April 2023. The operative provision would request an ICJ advisory opinion on the following question:
Having particular regard to the Charter of the United Nations, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment, and the duty to protect and preserve the marine environment,
UNGA Draft Resolution (20 February 2023), Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change
(1) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations;
(2) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
(a) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
(b) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”
Informal translations of the final Resolution are available in French, Spanish and Portuguese on the Vanuatu ICJ Initiative website.
Filed under International Organizations, State Practice
France: Administrative Decision No 21PA04622 (Environmental Code of Loyalty Islands Province)
On 10 January 2023 the Administrative Court of Appeal of Paris (1st Chamber) issued Administrative Decision No. 21PA04622 concerning the Environmental Code of Loyalty Islands Province (as amended, 2020). In respect of the international law of the sea, the decision addressed the consistency of Articles 232-3, 232-5 and 235-4 of the Environmental Code of Loyalty Islands Province with Part 2 (Section 3) of UNCLOS concerning the innocent passage regime. The Environmental Code of Loyalty Islands Province provided:
Environmental Code of Loyalty Islands Province (as amended, 2020)Article 232-3
Tout accès de navires au domaine public maritime provincial est soumis à déclaration ou à autorisation.
Les navires doivent communiquer à chaque mouvement leur itinéraire et leur manifeste aux autorités portuaires.Article 232-5
Tous les autres navires entrant sur le domaine public maritime provincial doivent justifier d’une autorisation.
La demande d’autorisation est déposée par voie électronique et nécessite la production de la carte de navigation, la déclaration de l’état du navire, des marchandises transportées et précise le nombre de personnes à bord.
L’autorisation est délivrée par les services provinciaux compétents dans un délai d’un mois.Article 235-4
La décision de suspension d’une autorisation d’accès et/ou d’activité mentionne les conditions de levée de la décision de suspension. Elle est levée par décision du président de l’assemblée de Province, après avis conforme des autorités coutumières concernées, dans l’hypothèse où le bénéficiaire s’est conformé aux conditions exposées dans la décision de suspension.
The Administrative Court of Appeal of Paris decided that a system of prior authorisation, in so far as it applies to foreign flagged vessels, is inconsistent with the right of innocent passage in the territorial sea, as codified in Article 17 of UNCLOS. Such an administrative constraint did not fall within the coastal state competence noted in Article 21 of UNCLOS and therefore, given the administrative constraint and hinderance of innocence passage resulting thereof, was inconsistent with the duty of the coastal state in Article 24 of UNCLOS. A system of prior authorisations applicable to the innocent passage of foreign vessels in the territorial sea would “impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage” (Article 24(1)(a) of UNCLOS). The Administrative Court of Appeal of Paris therefore decided that Articles 232-3 and 232-5 are canceled insofar as they apply to foreign vessels.
Filed under Jurisprudence, State Practice
CLCS: Recommendations for the Russian Federation in respect of the Arctic Ocean
On 6 February 2023 the Commission on the Limits of the Continental Shelf (CLCS) approved, with amendments, Recommendations in regard to the partial revised submission made by the Russian Federation in respect of the Arctic Ocean (3 August 2015; Addenda 31 March 2021 (previously reported)). The CLCS Recommendations include:
119. The Commission recommends that the Russian Federation proceeds to establish the outer limits of the continental shelf from fixed point 2G2_rev to fixed point 3E1_fin in Nansen Basin, from fixed point 4G1_rev to fixed point 8H11 in Amundsen Basin, and from fixed point 10H1_rev to fixed point 10D161 in Canada Basin (Figure 25; Table 3 of annex I).
120. Due to insufficient data and information provided for the outer edge of the continental margin, the outer limits of the continental shelf in the southern part of Amundsen Basin have not been defined (see chapters 3 and 5).The Commission recommends that the Russian Federation makes a partial revised submission in respect of its continental shelf in that area.
121. The Commission recognizes that the establishment of the final outer limits of the continental shelf of the Russian Federation in the Arctic Ocean may depend on continental shelf delimitation with neighboring States.
CLCS, Summary of the Recommendations, pp. 38-40.
For further information see Russia’s partial revised Submission in respect of the Arctic Ocean, including communications received from Canada, United States of America and Denmark, as well as the previous findings and recommendations concerning a partial revised submission in respect of its extended continental shelf in the Central Arctic Ocean (Submission by the Russian Federation).
Filed under International Organizations, State Practice
ICJ Core Group of Nations: Second Draft Resolution for ICJ AO Initiative
On 23 January 2023 the ICJ Core Group of Nations, led by the Republic of Vanuatu, released a second Draft Resolution entitled, Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change, for further and broadening consultation. It integrates feedback as of 22 January 2023. A final consultation will take place on 2 February 2023 in New York, before the final resolution will be circulated in February 2023.
Filed under State Practice
Switzerland: First Ratification of the WTO Agreement on Fisheries Subsidies
On 20 January 2023 Switzerland deposited its instrument of acceptance with the WTO, thereby ratifying the previously reported Agreement on Fisheries Subsidies. Once two thirds of the 164 WTO Members have ratified the Agreement on Fisheries Subsidies, is shall enter into force and be inserted into Annex 1A of the WTO Agreement. For more information see the WTO press release and overview of WTO Members who have submitted instruments of acceptance.
Filed under State Practice, Treaties
Cameroon: Law No 2022/017 on Unlawful Acts at Sea
On 27 December 2022, Cameroon adopted Law No. 2022/017 of 27 December 2022 relating to the suppression of piracy, terrorism and offences against the safety of maritime navigation and platforms. In addition to the aforementioned offences listed in its title, Law No. 2022/017 also addressed other ‘unlawful acts at sea’ (Section 1(2)).
Piracy in defined in Section 2(2) of Law No. 2022/017 in a manner similar to Article 101 of UNCLOS, albeit with some notable differences. Unlike Article 101 of UNCLOS, acts of detention or depredation –as distinct from acts of violence– are not included in Section 2(2) of Law No. 2022/017, nor are acts of piracy involving aircraft. Law No. 2022/017 does however include ‘fixed or floating platforms’ within the definition of ship for the purpose of such offences (Section 2(1)). Similar to Article 102 of UNCLOS, Section 3(2) Law No. 2022/017 addresses piratical acts by mutinous warships or other government ships, again excluding the UNCLOS references to aircraft.
Section 4 of Law No. 2022/017 defines slightly modified offenses similar to most of those found in Article 3 of the SUA Convention, as well as Articles 2-3 of the Explosives Convention. Novel offences are included. Section 5 of Law No. 2022/017 defines offences similar to most of those found in Article 2 of SUA Platforms. Section 6 of Law No. 2022/017 defines offences similar to most of those found in Article 3bis of SUA Convention 2005 (Articles 3ter and 3quater do not appear to be addressed in Law No. 2022/017) and most of those found in Article 2bis of SUA Platforms 2005 (Article 2ter is not addressed). Section 6(b) of Law No. 2022/017 defines an offence similar to, but narrower, than Article 1 of the Hostages Convention. Section 7 of Law No. 2022/017 defines the offence of the illegal transport of minors, while Section 8 defines the offence of intentional pollution through the discharge of noxious substances (similar but distinct from Article 3bis(1)(ii) of SUA Convention 2005). Section 9 of Law No. 2022/017 defines an unauthorised broadcasting offence similar to Article 109(2) of UNCLOS. Section 10 of Law No. 2022/017 addresses a financing offence related to all the aforementioned offences, reflecting some of Article 2 of the Financing Convention, whilst be broader in other respects. Section 17 addresses conspiracies, attempts and accomplices to the aforementioned offences in Law No. 2022/017.
For further information see the Presidency of the Republic of Cameroon.
Filed under State Practice
UNGA: 2022 Resolutions Adopted on Law of the Sea & Sustainable Fisheries
On 9 December 2022, the United Nations General Assembly (UNGA) adopted Resolution 77/118: 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, without a vote. On 20 December 2022 UNGA adopted Resolution 77/242: 2025 United Nations Conference to Support the Implementation of Sustainable Development Goal 14, without a vote, which envisages the convening of a high-level 2025 United Nations Conference to Support the Implementation of Sustainable Development Goal 14, supported by Costa Rica and France Finally, on 30 December 2022, UNGA adopted Resolution 77/248: Oceans and the law of the sea, (draft resolution currently accessible) with a vote (159-1-3).
For further information see reporting of the debate, as well as coverage (2) of the plenary meetings of the General Assembly to commemorate the 40th Anniversary of the adoption of UNCLOS (see: Resolution 77/5)
Filed under International Organizations, State Practice
COSIS: Six Members of the Commission
As of 1 January 2023, the Commission of Small Island States on Climate Change and International Law (COSIS) is comprised of six States, who are Parties to the COSIS Agreement (Article 3(2)). In order of date of effect, the Parties are Antigua and Barbuda (Definitive signature, 31 October 2021); Tuvalu (Definitive signature, 31 October 2021); Palau (Accession, 1 November 2021); Niue (Accession, 13 September 2022); Vanuatu (Accession, 2 December 2022) and St Lucia (Accession, 7 December 2022).
For more information on the Commission’s activities see previous reporting (2), (3), (4).
Filed under International Organizations, State Practice
Canada: Addendum to Partial Submission to CLCS (Arctic Ocean)
As previously reported, on 23 May 2019 Canada had made a partial submission to the Commission on the Limits of the Continental Shelf (CLCS) regarding its continental shelf in the Arctic Ocean. On 19 December 2022 Canada submitted its Addendum to the Partial Submission of Canada to the Commission on the Limits of the Continental Shelf regarding its continental shelf in the Arctic Ocean, see executive summary (french), to the CLCS. As summarised in the executive summary:
This addendum to the 2019 partial submission delineates additional outer limits of continental shelf, including along the full length of the Central Arctic Plateau (Lomonosov Ridge, Alpha Ridge and Mendeleev Rise, with the intervening Podvodnikov Basin and Makarov Basin), beyond 200 M from the baselines from which the breadth of the territorial sea is measured.
Noting in particular article 77 [of UNCLOS], Canada reserves the right to submit information in respect of other areas or portions of its continental shelf.
This submission is made, consistent with article 76(10) and article 9 of Annex II of [UNCLOS] without prejudice to future delimitation between Canada and the Kingdom of Denmark, the Russian Federation and the United States of America.
Addendum to the Partial Submission of Canada to the Commission on the Limits of the Continental Shelf regarding its continental shelf in the Arctic Ocean, pp. 5 and 10.
For more information see here and UN Doc. CLCS.84.2019.LOS (Continental Shelf Notification) (20 December 2022).
Filed under International Organizations, State Practice
ITLOS: Request for an Advisory Opinion Submitted by COSIS
On 12 December 2022 ITLOS received a Request for an Advisory Opinion from the Commission of Small Island States on Climate Change and International Law (COSIS), pursuant to Article 2(2) of the COSIS Agreement and Article 21 of the ITLOS Statute and Article 138 of the Rules of the Tribunal (see previous reporting on COSIS; and on advisory opinion jurisdiction, the SRFC Advisory Opinion).
By unanimous decision of the COSIS Members at the Third Meeting of COSIS on 26 August 2022 (comprising of Antigua and Barbuda; Tuvalu; and the Republic of Palau. Note: Niue, Republic of Vanuatu and Saint Lucia all acceded to the COSIS Agreement after 26 August 2022), COSIS decided to refer the following question to ITLOS for an Advisory Opinion (registered as ITLOS Case No. 31):
What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (the “UNCLOS”), including under Part XII:
(a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?
(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?
Request for an Advisory Opinion of 12 December 2022, p. 1
Note, the COSIS Members decision is based on an approval of Recommendation CLE. 1/2022/Rec of the Committee of Legal Experts (18 June 2022) which was assisted by the work of the Sub-Committee on Protection and Preservation of the Marine Environment. Consistent with the mandates of the Commission (Art 1(3), COSIS Agreement), the Sub-Committee on Sea-Level Rise, Sub-Committee on Human Rights, and the Sub-Committee on Loss and Damages continue to operate and may “propose further activities that the Commission may undertake to contribute to the definition, implementation, and progressive development of rules and principles of international law concerning climate change” (Third Meeting of COSIS, Decision 3). Without prejudice to if it will be utilised, note in this respect Article 2(2) of the COSIS Agreement authorises the Commission to request advisory opinions (plural) from ITLOS.
As previously reported COSIS supported the Vanuatu ICJ Advisory Opinion Initiative, and Decision 2 of the Third Meeting of COSIS provides “that the Committee of Legal Experts should assist members of the Commission in making submissions to the ICJ as appropriate”.
For more information see the ITLOS Press Release.
ICJ Core Group of Nations: Draft Resolution for ICJ AO Initiative
On 29 November 2022 the ICJ Core Group of Nations, led by the Republic of Vanuatu, submitted a Draft Resolution to all UN Member States, entitled, Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change, for further and broadening consultation. The Vanuatu ICJ Initiative seeks to have the UN General Assembly (UNGA) vote on the adoption of the resolution at the 77th Session of the UNGA, likely in early 2023. The draft question to be submitted to the ICJ would adopt a cross-cutting and systemic approach to the body of international law concerning climate change and protection and preservation of the climate system. Thus, while law of the sea elements cannot be viewed in isolation, they are an integral part of the preambular paragraphs and operative paragraphs.
The operative paragraph of the Draft Resolution would provide:
Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an advisory opinion on the following question:
“Having regard to the applicable treaties, including the Charter of the United Nations, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, and the United Nations Convention on the Law of the Sea, and rules of general international law, including the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment, and the duty to protect and preserve the marine environment,
(1) What are the obligations of States under the above-mentioned body of international law to ensure the protection of the climate system and other parts of the environment for present and future generations;
(2) What are the legal consequences under these obligations for States which, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
(a) Small island developing States and other States which, due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
(b) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”
Draft UNGA Resolution: Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change
In related but distinct developments in possible advisory opinion proceedings, on 2 December 2022 Vanuatu acceded to the Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law.
Filed under Jurisprudence, State Practice
ICJ: Sovereignty over the Sapodilla Cayes (Belize/Honduras)
On 16 November 2022 Belize submitted an Application instituting proceedings against the Republic of Honduras with regard to a dispute concerning territorial sovereignty over the Sapodilla Cayes. As an application concerning a purported territorial sovereignty dispute over maritime features, the case –and any resulting Judgment– is of relevance to the application of the law of the sea, but is not itself a dispute concerning the interpretation or application of the law of the sea.
Nonetheless, the Application relies upon, among others, purported exercises of coastal state rights and jurisdiction to demonstrate a manifestation of sovereignty over the Sapodilla Cayes (Application, paras. 10 & 16 e.g. adjudicative jurisdiction concerning salvage claims and piracy; prescriptive jurisdiction over natural resources, fisheries and entry; military and coast guard activities around Sapodilla Cayes; and a definition of territorial sea by reference to the Sapodilla Cayes). A number of documents in the Annexes to the Application instituting proceedings also make reference to the dispute concerning “said cays and adjoining maritime areas” and maritime delimitation. The jurisdiction of the ICJ is based on Article XXXI of the Pact of Bogotá, to which Belize deposited its instrument of accession on 27 October 2022.
Indeed, considerations of maritime delimitation and the previously reported pending case before the ICJ, Guatemala’s Territorial, Insular and Maritime Claim (Guatemala/Belize), are evidently a key rationale behind the Application. Various press briefings and Senate Statements by the Minister of Foreign Affairs, Foreign Trade and Immigration of Belize point to the potential for overlapping ‘related’ cases concerning, in part, Sapodilla Cayes, as well as the potential consequences of Honduras intervening in Guatemala’s Territorial, Insular and Maritime Claim (Guatemala/Belize).
For more information see the ICJ Press Release No. 2022/63.
Filed under Jurisprudence, State Practice
ITLOS: The M/T “Heroic Idun” Case (Marshall Islands v. Equatorial Guinea), Discontinued
As previously reported, on 10 November 2022 the Republic of the Marshall Islands had initiated prompt release proceedings against Equatorial Guinea concerning the M/T “Heroic Idun” whilst the vessel and crew were within the jurisdiction, control and custody of Equatorial Guinea. On 11 November 2022, the President of ITLOS via Order 2022/2 fixed the 24 November 2022 as the date for the opening of the hearings.
However, as detailed by the Marshall Islands (Order 2022/3, para 6) and confirmed by a Press Briefing by the Nigerian Navy (Briefing 15 November 2022), on 11 November 2022 “Equatorial Guinea caused the Vessel and her crew to be transferred into the jurisdiction, control and custody of Nigeria”, with the Nigerian Navy escort and M/T Heroic Idun subsequently arriving off Bonny Offshore Terminal II on 12 November 2022. As the Marshall Islands highlighted, “[t]hese developments have regrettably rendered moot the Marshall Islands’ Prompt Release Application […] [a]s a result, the Marshall Islands is compelled to discontinue the proceedings” (Order 2022/3, paras 7-8). On 15 November 2022, the President of ITLOS via Order 2022/3 placed on record the discontinuance of the prompt release proceedings and ordered that the case be removed from the ITLOS list of cases. It should be noted, as of 14 November 2022, “the Government of Equatorial Guinea had not taken any steps in the proceedings” (Order 2022/3, para 10).
According to the Nigerian Navy, the request to Equatorial Guinea to arrest the vessel, the Nigeria/Equatorial Guinea information exchange, the Nigeria/Equatorial Guinea coordination and the transfer of the suspected vessel and persons from Equatorial Guinea to Nigeria was based on the 2013 Code of Conduct Concerning the Repression of Piracy, Armed Robbery Against Ships, and Illicit Maritime Activity in West and Central Africa.
The Nigerian Navy noted a number of domestic legal provisions it believes the M/T Heroic Idun and/or crew “could” have violated. Press reporting on the first arraignment hearing at the Federal High Court Port Harcourt concerning some of the crew members (14 November 2022) list three charges that correlate with some of the Nigerian Navy points, namely two offences under the 2019 Suppression of Piracy and Other Maritime Offences Act and one offence under 2004 Miscellaneous Offences Act. A Statement by OSM, the Ship Manager, offers a different version of the underlying incidents.
For more information see the ITLOS Press Release 324.
Filed under Jurisprudence, State Practice
Russia: Resumed Participation in Black Sea Grain Initiative
As previously reported, on 29 October 2022 Russia decided to indefinitely suspend its participation in the Black Sea Grain Initiative. In response, the Ukrainian, Turkish and United Nations delegations agreed to proceed, with “movements and inspections carried out after the Russian Federation suspended its participation in implementation activities at the Joint Coordination Centre [a]s a temporary and extraordinary measure“. Furthermore, on 1 November 2022 Russia reported that Ukraine had provided written guarantees, including that “the maritime humanitarian corridor will be used only in accordance with the provisions of the Black Sea Initiative and the related JCC regulation” and Russia would therefore resume implementation of the Black Sea Grain Initiative from 2 November 2022. On the 3 November 2022 “the Russian Federation delegation resumed its work at the JCC and joined vessel inspections”. It appears the Republic of Türkiye and the UN played a significant role (2) (3) in returning Russia to the Black Sea Gran Initiative.
As provided in Primary Aspect H. of the Black Sea Grain Initiative, the Initiative initially applies until 18 November 2022 (120 days from the date of signature (22 July 2022)). The Initiative will be automatically extended by another 120 days, unless a Party notifies its intent to terminate or modify the Black Sea Grain Initiative. Türkiye has signalled its intent to extend the Initiative, but Russia has signalled its position is subject to further consultations.
Filed under State Practice
ITLOS: The M/T “Heroic Idun” Case (Marshall Islands v. Equatorial Guinea), Prompt Release
On 10 November 2022 the International Tribunal for the Law of the Sea (ITLOS) confirmed receipt of an Application submitted by the Republic of the Marshall Islands, filed against Equatorial Guinea, and thereby entered by ITLOS as Case No. 30: The M/T “Heroic Idun” Case (Marshall Islands v. Equatorial Guinea), Prompt Release. The case concerns a dispute between the Marshall Islands and Equatorial Guinea but as evident in the Application and several press releases by the Nigerian Navy (Press Release 17 August 2022; Press Briefing 19 August 2022; Press Release 9 November 2022), also arrises out of events occurring in the maritime zones of Nigeria.
Of particular interest to Provisional Measures proceedings, the Application submitted by the Republic of the Marshall Islands contends:
Given the paucity of information available to the Applicant at this point, in the absence of any meaningful engagement by Equatorial Guinea in response to the diplomatic and other initiatives by the Applicant, this [Prompt Release] Application does not rest on an asserted breach by the Respondent of Articles 73, 220 or 226 of the Convention. The Applicant reserves the right, however, to amend and supplement this Application, including in the course of a hearing on the matter, to include reference to Article 73, 220 and/or 226 in the event that this is warranted by information that comes to light in the course of these proceedings, whether in the form of claims and submissions by the Respondent or from elsewhere.
[…]
Having regard to the context and the urgency of the present case, and the Tribunal’s settled jurisprudence on a plausibility threshold for purposes of prompt release applications, the Marshall Islands contends that the Tribunal should proceed on the basis of a non-restrictive interpretation of Article 292 in respect of this Application.
[…]
In addition or in the alternative to the preceding, and having regard to the submissions above about the “non-restrictive interpretation” of Article 292 on which the Marshall Islands primarily relies, the Applicant contends that Article 292(4) provides an independent basis – constituting a “provision of the Convention” for purposes of Article 292(1) – on which the Tribunal’s competence to order prompt release can be engaged.
Application submitted by the Republic of the Marshall Islands, paras. 59, 63 and 81.
Of further note, as evident in Paragraph 2 of the Application, the Marshall Islands intends to submit a dispute on the merits to an UNCLOS Annex VII Arbitral Tribunal (Application, Para. 49(e), while not exhaustive, raises Articles 58(1)-(2), 87, 97 & 110 of UNCLOS), as well as a Request for Provisional Measures (Para. 2 of the Application, refers to ITLOS hearing the provisional measures under Article 290(5) of UNCLOS, but this cannot be presumed until the parties to the dispute have failed to reach agreement on a suitable court or tribunal within 2 weeks, and the Arbitral Tribunal has not been formed).
The Submissions of the Marshall Islands are found in Paragraphs 87-88 of the Application, including the usual Prompt Release requests as well as several “requests the President of the Tribunal, relying on the Tribunal’s inherent competence and proprio motu powers, exemplified but not confined by Article 90(4) of the Tribunal’s Rules” concerning safety, security, and cooperation/information exchange between Equatorial Guinea and Nigeria.
For more information see ITLOS Press Release 323.
Filed under Jurisprudence, State Practice
UK/Mauritius: Chagos Archipelago/BIOT Negotiations Begin
On 3 November 2022 the UK Secretary of State for Foreign, Commonwealth and Development Affairs made a written ministerial statement in the House of Commons (HCWS354), repeated in the House of Lords (HLWS347), whereby the minister confirmed:
“[T]he UK and Mauritius have decided to begin negotiations on the exercise of sovereignty over the British Indian Ocean Territory (BIOT)/Chagos Archipelago.
Through negotiations, taking into account relevant legal proceedings, it is our intention to secure an agreement on the basis of international law to resolve all outstanding issues, including those relating to the former inhabitants of the Chagos Archipelago.
[…]
The UK and Mauritius have agreed to engage in constructive negotiations, with a view to arriving at an agreement by early next year.”
HCWS354
Relevant legal proceedings would include domestic proceedings, and at the international level: Chagos Marine Protected Area Arbitration; Delimitation of the maritime boundary in the Indian Ocean (and related Preliminary Objections proceedings) and the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion).
Of further note, the negotiations are framed around statements that the UK will seek to “strengthen significantly” its cooperation in the Indian Ocean on a range of issues, and “The UK and Mauritius have reiterated that any agreement between our two countries will ensure the continued effective operation of the joint UK/US military base on Diego Garcia”. The USA and India will be kept informed of progress in negotiations and the operation of the military base on Diego Garcia.
Filed under Jurisprudence, State Practice
Russia: Indefinite Suspension of Participation in Black Sea Grain Initiative
In response to a 29 October 2022 attack on Russian Naval assets located in a naval base on the occupied Ukrainian territory of Sevastopol (UN General Assembly Resolution 68/262), Russia declared it will suspend its implementation of the (previously reported) Black Sea Grain Initiative with immediate effect for an indefinite period on the basis “the Russian side can no longer guarantee the safety of civilian dry cargo ships participating in the Black Sea Grain Initiative”. According to the Joint Coordination Centre (JCC), “The Russian Federation delegation also expressed its readiness to cooperate remotely on issues that require immediate decision by the JCC”. No agreement on vessel movements in the corridor was reached for 30 October 2022, but, in order to continue fulfilling the Initiative, “it was proposed that the Turkish and United Nations delegations provide [31 October 2022] 10 inspection teams aiming to inspect 40 outbound vessels”, an inspection plan accepted by the Ukraine delegation and informed to the Russian Federation. The “Ukrainian, Turkish and United Nations delegations agreed on a movement plan for [31 October 2022] for the maritime humanitarian corridor of 16 vessels, 12 outbound and 4 inbound”. The Russian delegation was informed of said movement plans. Among others, the UN Secretary General and Türkiye issued statements in response to the Russian suspension of its participation, the latter suggesting one consequence will be “during this period, there will be no ship exits from Ukraine”.
Earlier, on 20 October 2022, UNCTAD had reported on the contributions of the Black Sea Initiative to global food security. In the week before Russia’s suspension of participation, the JCC had reported on 24 October 2022 on delays and disruptions that had resulted in a backlog of vessels waiting in the territorial waters of Türkiye. A statement by Ukraine attributed these delays to the actions of Russia concerning inspections, while a Russian statement attributed delays to “an artificial traffic jam has been created in the port of Istanbul”.
For further information see the below map of the Black Sea Grain Initiative Shipping Route (25 August 2022) produced by the JCC (Sevastopol is not visible on the map as it lies eastward of the eastern boundary of the map).
Filed under International Organizations, State Practice
New Zealand: moratorium on deep seabed mining backed
The Government of New Zealand announced its support to a conditional moratorium on deep sea mining in areas beyond national jurisdiction until environmental rules are agreed and backed up by science. The decision follows a review of progress on regulations for deep sea mining in the area managed by the International Seabed Authority, who has a July 2023 deadline to complete the regulations, or Mining Code, before mining applications can be submitted. More information on this announcement can be found in the press release from the Minister of Foreign Affairs. This announcement goes in the same direction of a motion by IUCN (see De Maribus report here) and of a decision from the Parliament of Belgium (see De Maribus report here)
Filed under State Practice
Vanuatu: Announcement of ICJ Core Group of Nations (ICJ AO Initiative)
On 27 October 2022 the Republic of Vanuatu formally announced at the UN General Assembly the composition of the ICJ Core Group of Nations, which currently includes: Antigua & Barbuda, Bangladesh, Costa Rica, Germany, Liechtenstein, Federated States of Micronesia, Morocco, Mozambique, New Zealand, Portugal, Samoa, Singapore, Sierra Leone, Uganda, Viet Nam, and Vanuatu. The Core Group of Nations are producing a zero draft of a resolution to be put before the UN General Assembly requesting an Advisory Opinion from the International Court of Justice (ICJ) and builds on previously reported formal endorsements by the respective leaders of CARICOM, PIF & OACPS. Note, Antigua & Barbuda is a member of the ICJ Core Group of Nations, aligning with the previously reported support of COSIS for the Vanuatu ICJ Initiative.
The currently reported schedule by the Vanuatu ICJ Initiative notes a zero draft of the proposed UNGA Resolution will be made public by 14 November 2022, opened for informal negotiations by 21 November 2022 and tabled for a vote by the UNGA between December 2022-February 2023 (i.e. during 77th Session of UNGA). The current draft question is not detailed in the Joint Statement, the Vanuatu Press Release, or the Resolution Elements Summary (October 2022), but possibilities are noted:
An opinion of the International Court of Justice could, among other things:
Vanuatu, Joint Statement on behalf of Core Group of Nations, UNGA, 27 October 2022.
- Clarify the rights and obligations of States in respect of the adverse impacts of climate change on small island developing states and other climate vulnerable states, in particular, thereby facilitating international cooperation in this area;
- Encourage States to reflect their highest possible level of ambition, in keeping with the principle of common but differentiated responsibilities and respective capabilities in light of their different national circumstances, in preparing their NDCs under the Paris Agreement and supporting climate action;
- Clarify the due diligence requirements relating to climate action for emitters of greenhouse gases– past, present and future, and
- Clarify the implications for the human rights of present and future generations.
For further information, note that UNEP also released its Emissions Gap Report 2022 on 27 October 2022. The executive summary (p. XVI) notes “Policies currently in place with no additional action are projected to result in global warming of 2.8°C over the twenty-first century. Implementation of unconditional and conditional NDC scenarios reduce this to 2.6°C and 2.4°C respectively”. The UNEP Press Release summarises “the international community is still falling far short of the Paris goals, with no credible pathway to 1.5°C in place”.
Filed under International Organizations, State Practice
CCAMLR: Ecuador Becomes a Member of the Commission
On 24 June 2022, Ecuador acceded to the Convention on the Conservation of Antarctic Marine Living Resources, thereby becoming an Acceding Party (Article XXIX). Acceding Parties are bound by the provisions of the CAMLR Convention, but are not permitted to fish in the CAMLR Convention Area, do not participate in decision-making, and do not contribute financially. On 19 October 2022 Ecuador then became a Member of the Commission. Consistent with Article VII(2)(b) of the CAMLR Convention, the press release by CCAMLR Secretariat notes Ecuador is currently engaged in research activities in relation to the marine living resources to which the CAMLR Convention applies. Members are involved in scientific research and/or fishing subject to CCAMLR Conservation Measures (Articles IX & XXI), contribute to the CCAMLR budget (Article XIX) and participate in decision-making (Article XII).
Filed under International Organizations, State Practice
Israel/Lebanon: Maritime Boundary Line Agreement
On 11 October 2022, the Republic of Lebanon and the State of Israel reached a draft Exchange of Letters Establishing a Permanent Maritime Boundary to delineate their territorial sea and EEZ maritime boundary, with the USA formally acting as a mediator and facilitator between the Parties since 29 September 2020. Pending finalisation, Section 1 would define the maritime boundary as agreed between the Parties for all points seaward of the easternmost point of the maritime boundary line. Section 2 addresses exploration and exploitation of an area refereed to as “the Prospect”.
In order not to prejudice the status of the land boundary, the maritime boundary landward of the easternmost point of the MBL is expected to be delimited in the context of, or in a timely manner after, the Parties’ demarcation of the land boundary. Until such time this area is delimited, the Parties agree that the status quo near the shore, including along and as defined by the current buoy line, remains the same, notwithstanding the differing legal positions of the Parties in this area, which remains undelimited.
Section 1B
Filed under State Practice, Treaties
USA–Pacific Islands Summit: Declaration on U.S.–Pacific Partnership
On 28-29 September 2022 the inaugural United States-Pacific Island Country Summit was held, including the governments of Cook Islands, Federated States of Micronesia, Fiji, French Polynesia, Nauru, New Caledonia, Palau, Papua New Guinea, Republic of the Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu, and the United States of America. On 29 September 2022 the United States-Pacific Island Country Summit issued the Declaration on U.S.-Pacific Partnership which, among 11 agreed points, includes:
Sixth, we resolve to protect the Blue Pacific and enhance the laws that govern it.
Seventh, we resolve to maintain peace and security across the Blue Pacific Continent.
2022 Declaration on U.S.-Pacific Partnership
Further detail on initiatives to implement the USA’s commitments is found in the U.S. Roadmap for a 21st-Century U.S.-Pacific Island Partnership, published 29 September 2022. On 29 September 2022, the USA also published a national strategy dedicated to the Pacific Islands, entitled, Pacific Partnership Strategy, which is supportive of the U.S. Indo-Pacific Strategy and “aligned with the goals” of the Pacific Island Forum’s 2050 Strategy for the Blue Pacific Continent.
Significant commitments and policies of interest across a range of thematic areas of ocean governance are found within the documents cited above. To highlight here, following previous reporting (2), is the practice addressing the preservation of maritime zones:
We acknowledge the threats posed by climate change-related sea-level rise to regional security, peace, prosperity, and development. It is essential that maritime zones and the rights and entitlements that flow from them must be maintained without reduction, notwithstanding any physical changes connected to climate change-related sea-level rise, recognizing that SIDS and other coastal States have planned their development in reliance on their rights to such maritime zones […]
2022 Declaration on U.S.-Pacific Partnership
Sea-Level Rise: The United States is adopting a new policy on sea-level rise and maritime zones. This policy recognizes that new trends are developing in the practices and views of States on the need for stable maritime zones in the face of sea-level rise, is mindful of the Pacific Island Forum’s Declaration Preserving Maritime Zones in the Face of Climate Change-related Sea-Level Rise, commits to working with Pacific Island States and other countries toward the goal of lawfully establishing and maintaining baselines and maritime zone limits, and encourages other countries to do the same.
Roadmap for a 21st-Century U.S.-Pacific Island Partnership
Secondly:
Recognition of Cook Islands and Niue: The United States will recognize the Cook Islands and Niue as sovereign states, following appropriate consultations.
Roadmap for a 21st-Century U.S.-Pacific Island Partnership
Filed under State Practice
UN: FSO Safer Emergency Operation Funded
An ongoing UN-Coordinated Plan aims to prevent and prepare for a possible oil spill from the deteriorating floating storage and offloading unit, FSO Safer, moored off the coast of Yemen, with an estimated 1.14 million barrels of light crude oil on board (IMO Circular Letter No. 4561). The UN-Coordinated Operation Plan is undertaken in close consultation with Yemeni parties, including the support of the Government of Yemen in Aden and a Memorandum of Understanding (5 March 2022) with the Sana’a-based authorities, which control the area where the vessel is located. Following additional funding pledges by the Netherlands on 17 September 2022, the $75 million required to start the first phase of the emergency operation was reached (via public participation, UN crowdfunding campaign and donor states). On 21 September 2022 the Netherlands, the United States and Germany, as the largest donors, co-hosted a high-level side event (2) at the United Nations General Assembly Week addressing necessary follow-up steps and how the operation will actually be carried out. The emergency salvage operation will involve transferring the oil into a safe vessel. The second phase, which will require an additional $38 million, envisages installing a permanent storage solution and scrapping the FSO Safer.
Filed under International Organizations, State Practice
ISA: LTC Recommendations allow polymetallic nodule collector testing in Clarion-Clipperton Zone
On 22 July 2011 Nauru Ocean Resources Inc. (NORI), a wholly-owned subsidiary of The Metals Company, was granted a polymetallic nodule exploration contract concerning 4 areas in the Clarion Clipperton Zone (CCZ), sponsored by the government of the Republic of Nauru.
An environmental impact statement from NORI regarding its plans to carry out testing of a polymetallic nodule collector system components, in the NORI-D Contract Area of the eastern Clarion-Clipperton Zone was submitted on 30 July 2021, with updates and resubmission on 1 March 2022. A Environmental Management and Monitoring Plan (EMMP) was submitted on 2 May 2022. The Legal and Technical Commission (LTC) made requests concerning the detail of the EIA in March 2022 and both the EIA and EMMP in July 2022 (ISBA/27/C/16/Add.1, paras. 42-47):
The Commission therefore decided that it was unable to recommend to the Secretary-General of the Authority that the environmental impact statement be included in the programme of activities of NORI.
ISBA/27/C/16/Add.1, para. 46.
In August 2022 the LTC concluded its review of the additional information provided by NORI on 1 August 2022 and recommended to the Secretary-General of ISA that the completed EIS be incorporated into the programme of NORI’s activities under its exploration contract with ISA. On 5 September 2022, the Secretary-General notified the contractor of the recommendation of the LTC (ISA Press Release) and the pilot collection system trials in the NORI-D Exploration Area (see below) are scheduled to begin in September 2022.
Filed under International Organizations, State Practice
Republic of Congo: Establishment of Three Marine Protected Areas
Between 29-31 August 2022, the Government of the Republic of Congo, with the support of organisations including the Wildlife Conservation Society (WCS), officially “announced the creation of the country’s first three Marine Protected Areas (MPAs) protecting marine resources and coastal habitats across more than 4,000 square kilometers (1,544 square miles) and representing 12.01 percent of Congo’s Exclusive Economic Zone (EEZ)” (WCS Press Release). The Ministre de l’Économie Forestière en République du Congo (2) is responsible for protected areas, with a Commission Nationale de Classement approving the Loango Bay Marine Protected Area on 29 August 2022, the expansion of the maritime component of the Conkouati-Douli National Park on 30 August 2022 and the establishment of Mvassa Marine Protected Area on 31 August 2022.
Filed under State Practice
Solomon Islands: Temporary Suspension of Approvals Concerning Foreign Naval Visits or Patrols
On 30 August 2022, following the unsuccessful/aborted port calls of the USCGC Oliver Henry and HMAS Spey to the Solomon Islands during their participation in the Pacific Islands Forum Fisheries Agency-led, Operation Island Chief, the Solomon Islands have indicated:
“[T]he need for the government to review and refine its approval requirements and procedures for visiting military vessels to Solomon Islands […] to this end we have requested our partners to give us time to review and put in place our new processes before sending further requests for military vessels to enter the country […]
The government has asked all partner countries with plans to conduct naval visits or patrols to put them on hold until a revised national mechanism is in place. These will universally apply to all visiting naval vessels”
GCU Press (30 August 2022)
The port call of USNS Mercy on 30 August 2022 was unaffected due to prior diplomatic clearance. Note, the GCU Press Release refers to a need for diplomatic clearance to enter the Solomon Islands “waters” and “the Government have communicated its position to all countries requesting to send in naval ships into Solomon Islands waters”.
Filed under State Practice
COSIS: Support Vanuatu Initiative to Seek an ICJ Advisory Opinion on Climate Change
On 26 August 2022 the Commission of Small Island Developing States on Climate Change and International Law (current composition: Antigua and Barbuda, Tuvalu and Palau; previously reported) met virtually, including conferral with 14 appointed international experts and advisors (ACOSIS, Art. 2(3)) and approval of their recommendations in a “plan of action that is being developed”. COSIS may consider and request an advisory opinion from the International Tribunal for the Law of the Sea (ACOSIS, Art. 2(2)), but during the meeting COSIS decided to also express full support (ACOSIS, Arts 1(3), 2(1)) for the separate Vanuatu initiative to Seek an ICJ advisory opinion on climate change through a UN General Assembly request (previously reported). Finally, three COSIS working groups were established (ACOSIS, Art. 3(4)) to “advance the objectives of the Commission”. The focus of each working group is not defined, although 3 thematic topics are evident when reading ACOSIS Arts 1(3) and 2(1). For more information see the COSIS Press Release (2).
Filed under International Organizations, State Practice
FAO: Voluntary Guidelines for Transshipment
On 7 July 2022 the FAO Technical Consultation on Voluntary Guidelines for Transshipment adopted the Draft Voluntary Guidelines for Transshipment (Appendix E of the Draft Report of the Technical Consultation on Voluntary Guidelines for Transshipment (FAO Doc. COFI/2022/INF/10). The Voluntary Guidelines will be presented to the Thirty-Fifth Session of the FAO Committee on Fisheries, 5-9 September 2022, for endorsement, after which they will become an international instrument under the FAO’s Code of Conduct for Responsible Fisheries framework. For more information see the FAO Press Release.
Filed under International Organizations, State Practice
Japan: Approval to install treated water discharge facility at Fukushima Daiichi Nuclear Power Station
On 22 July 2022, Pursuant to the Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material and Nuclear Reactors, the Nuclear Regulation Authority (NRA) of Japan approved the installation of an Advanced Liquid Processing System (ALPS) treated water discharge facility at Fukushima Daiichi Nuclear Power Station. However, as clarified by the Ministry of Foreign Affairs of Japan:
“[T]his does not mean that TEPCO can immediately start the discharge of the ALPS treated water into the sea. Before doing so, remaining processes, such as NRA’s Pre-Service Inspections to check and confirm the installation status of the discharge facilities, will continue. The discharge of the ALPS treated water into the sea will not start until after these steps are duly taken. The IAEA will continue to conduct its independent review throughout, including while these steps are taken, and the Government of Japan will carefully consider the findings and observations from the IAEA’s review”
MOFA Japan, https://www.mofa.go.jp/press/release/press4e_003146.html
For further information see the IAEA status updates and MOFA page.
Filed under State Practice
Ukraine/Türkiye/Russia: Black Sea Grain Initiative
On 22 July 2022 Ukraine, the Republic of Türkiye, and the Russian Federation signed the Initiative on the safe export of foodstuffs and fertilizers, including ammonia, from Ukrainian ports (Black Sea Grain Initiative). The United Nations, represented by the UN Secretary-General, also signed as a witness. The text of the Black Sea Grain Initiative does not appear to be public, but as the Procedure for Merchant Vessels (August 2022) para. 3 details, the “purpose of this Initiative is to facilitate the safe navigation for the export of foodstuffs and fertilizers, including ammonia from the Ports of Odesa, Chernomorsk (Chornomorsk) and Yuzhny (Pivdennyi) (the Ukrainian ports)”. Within their scope of application, the rules of procedure apply as conditions of port entry or departure for said ports. On 27 July 2022 a Joint Coordination Centre (JCC) was officially inaugurated in Istanbul, comprising representatives of Ukraine, the Russian Federation, Türkiye and the United Nations to facilitate the implementation of the Black Sea Grain Initiative. The JCC “will monitor the movement of commercial vessels to ensure compliance with the initiative; focus on exporting bulk commercial grain and related food commodities only; ensure the on-site control and monitoring of cargo from Ukrainian ports; and report on shipments facilitated through the initiative”. As of 11 August 2022, it appears that 12 vessels have thereby departed Ukrainian ports under the Black Sea Grain Initiative following the unlawful use of force by Russia (UNGA Resolution ES-11/1 Aggression against Ukraine) and the impact of the conflict on grain and agricultural exports. According to a Russian Statement, the Black Sea Grain Initiative will run for 120 days, with options to renew by 120 days with the agreement of all parties.
Concurrently, on 22 July 2022 Russia and the United Nations signed the Memorandum of Understanding between the Russian Federation and the United Nations on promoting the access of Russian food products and fertilizers to world markets. According to a Russian Statement, the MoU on Russian exports of agricultural products will remain valid for 3 years.
For more information see the JCC website.
Filed under International Organizations, State Practice, Treaties
Compilation of textual proposals for consideration at fifth session of IGC on BBNJ Agreement
Accompanying the previously reported Further Revised Draft Text of A BBNJ Agreement, the President of the Intergovernmental Conference (IGC) invited delegations to submit by 25 July 2022 textual proposals for consideration at the fifth session. The secretariat (DOLAS) was requested to produce a compilation of proposals received by that deadline (A/CONF.232/2022/5, para 12). On 1 August 2022 DOLAS released an article-by-article compilation (A/CONF.232/2022/INF.5), entitled, Textual proposals submitted by delegations by 25 July 2022, for consideration at the fifth session 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 (the Conference), in response to the invitation by the President of the Conference in her Note of 1 June 2022 (A/CONF.232/2022/5).
For more information see the documents page for the fifth substantive session.
Filed under International Organizations, State Practice, Treaties
China: Military Exercises and Training Activities Around Taiwan Island
On 2 August 2022, China provided notice that it will conduct military exercises and training activities, including live-fire drills, from 4-7 August 2022 in six defined maritime areas and their air space around Taiwan Island. Entry of vessels and aircraft into the above-mentioned sea and air space is prohibited during said period. A spokesperson for China’s Ministry of National Defense described the “targeted drills” as ‘countermeasures’ in response to the visit of US House of Representatives Speaker Nancy Pelosi to Taiwan, while the Ministry of Foreign Affairs announced other sanctions or ‘countermeasures‘ including in a maritime context.
The Ministry of Foreign Affairs, Taiwan (R.O.C.) objected to the military exercises and training activities, including the launching of ballistic missiles into waters surrounding Taiwan Island. Japan lodged a diplomatic protest with China as reportedly the first occasion that Japan believes that Chinese ballistic missile have landed in Japan’s EEZ (5 missiles). A Foreign Ministry Spokesperson of China suggested China does not recognise Japan’s EEZ claim until maritime delimitation is completed. The G7 Foreign Ministers issued a Statement on Preserving Peace and Stability Across the Taiwan Strait (3 August 2022) calling for peaceful means, while ASEAN Foreign Ministers issued a Statement on The Cross Strait Development (3 August 2022), calling for maximum restraint, refrain from provocative action and for upholding the principles enshrined in United Nations Charter and the Treaty of Amity and Cooperation in Southeast Asia.
Filed under Non-State Actors, State Practice
Fiji/Solomon Islands: Maritime Boundary Agreement signed
On 11 July 2022 the Republic of Fiji and Solomon Islands signed the Agreement between the Republic of Fiji and Solomon Islands concerning their Maritime Boundary. Article 3 provides for a single delimitation line concerning both the exclusive economic zone and continental shelf entitlements of the Contracting Parties. The official press releases (2) note that the agreement is consistent with, and aligned with, the intention of all Pacific Islands Forum (PIF) Members as expressed in the previously reported 2021 Declaration on Preserving Maritime Zones in the Face of Climate Change-related Sea-Level Rise. Thus, both Prime Minister Manasseh Sogavare (Solomon Islands) and Prime Minister Frank Bainimarama (Fiji) thereby declare the “permanence of their country’s respective maritime zones, irrespective of climate change-related sea-level rise and its potential impact on maritime boundaries”.
Filed under State Practice
Dispute Concerning the Detention of Ukrainian Naval Vessels/Servicemen, Award on Preliminary Objections
The Arbitral Tribunal (UNCLOS, Annex VII) in respect of the Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation), PCA Case No. 2019-28, issued its Award on Preliminary Objections of the Russian Federation on 27 June 2022. However, consistent with Article 28(6) of the Rules of Procedure, the Parties to the Dispute were given an opportunity to designate “confidential information that they request to be redacted” and so the Award was only publicly published on 11 July 2022. The Operative part of the Award (Para. 208) unanimously concluded:
For the reasons set out above, the Arbitral Tribunal
Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation), Award on Preliminary Objections of the Russian Federation [208]
Article 298(1)(b) Objection
a. Finds that the events of 25 November 2018 until a point in time after the Ukrainian naval vessels left anchorage area No. 471 constitute “military activities” excluded from the jurisdiction of the Arbitral Tribunal in accordance with Article 298(1)(b) of the Convention;
b. Finds that the events following the arrest of the Ukrainian naval vessels do not constitute “military activities” excluded from the jurisdiction of the Arbitral Tribunal in accordance with Article 298(1)(b) of the Convention;
c. Decides that the determination of the precise point at which the events ceased to be “military activities” within the meaning of Article 298(1)(b) of the Convention shall be ruled upon in conjunction with the merits;
Article 288(1) Objection
d. Declares that the objection that UNCLOS does not provide for an applicable immunity does not possess an exclusively preliminary character;
e. Decides that the objection that UNCLOS does not provide for an applicable immunity shall be ruled upon in conjunction with the merits;
Article 290 and 296 Objection
f. Rejects the objection that the Arbitral Tribunal has no jurisdiction over alleged breaches of the ITLOS Provisional Measures Order;
Article 279 Objection
g. Declares that the objection that Article 279 of the Convention provides no basis for the Arbitral Tribunal to claim jurisdiction as to the alleged aggravation of the dispute does not possess an exclusively preliminary character;
h. Decides that the objection that Article 279 of the Convention provides no basis for the Arbitral Tribunal to claim jurisdiction as to the alleged aggravation of the dispute shall be ruled upon in conjunction with the merits;
Article 283 Objection
i. Rejects the objection that Ukraine has not complied with Article 283 of the Convention;
Further Proceedings
j. Decides that it has jurisdiction over the dispute between the Parties, subject to the jurisdictional limitations set out above;
k. Decides that the proceedings on the merits are hereby resumed, and that the Russian Federation shall submit a Counter-Memorial no later than six months from the date of this Award;
Costs
l. Decides that the question of costs shall be ruled upon in conjunction with the merits.
For further information see previous reports.
Filed under Jurisprudence, State Practice
2022 UN Ocean Conference: Lisbon Declaration
The 2022 UN Ocean Conference (The United Nations Conference to Support the Implementation of Sustainable Development Goal 14: Conserve and sustainably use the oceans, seas and marine resources for sustainable development), co-hosted by the Governments of Kenya and Portugal, occurred 27 June – 1 July 2022 in Lisbon (Portugal). The Conference adopted (A/CONF.230/2022/L1), without a vote, the Lisbon Declaration, entitled, Our ocean, our future, our responsibility (A/CONF.230/2022/L.2). In addition to this political declaration, many states made a host of new commitments, with “[c]lose to 700 commitments […] registered”.
Filed under Events, State Practice
IGC President’s Further Revised Draft Text of A BBNJ Agreement
Pursuant to General Assembly Decision 76/564 (24 March 2022) a fifth session 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 will be convened 15–26 August 2022. On differences of opinion among states on whether the fifth session will be the final session to conclude an agreement see here.
The previously reported revised draft text of an agreement prepared by the President of the Conference, and previously reported textual proposals were considered at the fourth session (7-18 March 2022). The President of the Conference was requested to prepare a further revised draft text of an agreement, taking into account (1) the work of the fourth session, (2) delegation proposals in conference room papers during the fourth session, (3) proposals sent up until 31 March 2022. On 30 May 2022 the President of the Conference [Rena Lee (Singapore)] released an advanced version of the further revised draft text, entitled, Further 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. Delegations are given until 25 July 2022 to submit further textual proposals for consideration at the fifth session of the conference. It is expected the President of the Conference will once again publish a compilation of proposals submitted by the deadline in advance of the opening of the fifth session. Delegations will also be able to submit proposals during the fifth session itself.
Filed under International Organizations, State Practice
Croatia/Italy: EEZ delimitation agreed
The Governments of Croatia and of Italy have signed on 24 May 2022 an agreement on the delimitation of their exclusive economic zones. See press release from the Government of Croatia and press release from the Government of Italia; see also the text of the agreement, which posits that if a dispute is not settled through direct consultations or negotiations, either Party may submit the dispute to ITLOS, the ICJ or an UNCLOS Annex VII Arbitral Tribunal (see Italian version here).
Filed under State Practice
De Maribus 
