Category Archives: State Practice

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.

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”.

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.

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”. 

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).

The Congress, the legislature of the federal government of the United States of America, passed on 13 June 2022 the Ocean Shipping Reform Act. This bill revises requirements governing ocean shipping to increase the authority of the Federal Maritime Commission (FMC) to promote the growth and development of U.S. exports through an ocean transportation system that is competitive, efficient, and economical. For example, the bill requires the FMC to (1) investigate complaints about detention and demurrage charges (i.e., late fees) charged by common ocean carriers, (2) determine whether those charges are reasonable, and (3) order refunds for unreasonable charges. It also prohibits common ocean carriers, marine terminal operators, or ocean transportation intermediaries from unreasonably refusing cargo space when available or resorting to other unfair or unjustly discriminatory methods. See the text (reference S.3580) as approved by the U.S. Congress.

The Minister of Foreign Affairs of Canada and the Minister for Foreign Affairs of Denmark, along with the Prime Minister of Greenland, signed on 14 June 2022 an agreement resolving outstanding boundary issues over Tartupaluk/Hans Island, the maritime boundary on the continental shelf within 200 nautical miles, including Lincoln Sea, and the continental shelf beyond 200 nautical miles in Labrador Sea. The present agreement incorporates a tentative agreement from 2012 and establishes a modernized single maritime boundary within 200 nautical miles from Lincoln Sea in the north to Labrador Sea in the south – almost 3,000 km. The agreement also establishes a binding boundary line in the overlapping area of the outer continental shelf, which represents an equitable solution, consistent with article 83 of UNCLOS. See press releases from MFA Canada and MFA Denmark.

On 28 April 2022 the European Union and Norway reached an understanding on sustainable fisheries management in the Northeast Arctic (ICES subareas 1 and 2), including in the Fishery Protection Zone around Svalbard. The Ad-hoc exploratory consultations in relation to the fisheries in ICES areas 1 and 2 includes agreed cod quotas and consultations on (direct and by-catch) catch limits for other listed species. This resolves a bilateral disagreement brought to the surface following the 2021 UK-Norway Fisheries Agreement and Svalbard cod quota therein (see also, Agreed Record of Fisheries Consultations for 2022, press release, and 2020 Framework Agreement on Fisheries). Similar to the 2021 UK-Norway Fisheries Agreement, the 2022 EU-Norway Understanding notes “Norway’s rights and duties as a coastal State to regulate, in accordance with international law, the conservation and management of marine living resources in areas where it has sovereign rights, including in the Fishery Protection Zone around Svalbard” and is without prejudice to the Parties respective interpretations of the 1920 Spitsbergen Treaty, Part VII of UNCLOS, and the 1995 UN Fish Stocks Agreement.

For more information see the Norwegian press release and EU press release.

On 29 March 2022 The Russia (Sanctions) (EU Exit) (Amendment) (No. 7) Regulations 2022 (S.I. 395/2022) were made and entered into force on 30 March 2022. The Regulations amend the previously reported Russia (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/855), of relevance including the extension of “Crimea” shipping and trade sanctions to “non-government controlled areas of the Donetsk and Luhansk oblasts” (defined, Regulation 2); a prohibition of technical assistance relating to vessels to, or for the benefit of, designated persons (Regulation 46A); and the additions of penalties (Regulation 80) for offences under Part 6 (Ships). See further, the UK Government press release.

The United States House of Representatives passed the Don Young Coast Guard Authorization Act of 2022 to authorize appropriations for the Coast Guard, and for other purposes. Inter alia, this amendment provides the following amendments on “Manning and Crewing Requirements for Certain Vessels, Vehicles and Structures” (see Sec. 419):

The Secretary may provide an exemption (…) to the owner or operator of a covered facility if each individual who is manning or crewing the covered facility is – (1) a citizen of the United States; (2) an alien lawfully admitted to the United States for permanent residence; or (3) a citizen of the nation under the laws of which the vessel is documented.
(…)
An exemption under this subsection is an exemption from the regulations established pursuant to section 30(a)(3) of the Outer Continental Shelf Lands Act (43 U.S.C. 1356(a)(3)).
(…)
An exemption under this section – (1) shall provide that the number of individuals manning or crewing the covered facility (…) (a) may not exceed two and one- half times the number of individuals required to man or crew the covered facility under the laws of the nation under the laws of which the covered facility is documented; and (2) shall be effective for not more than 12 months, but may be renewed by application to and approval by the Secretary.
(…)
The term ‘covered facility’ means any vessel, rig, platform, or other vehicle or structure, over 50 percent of which is owned by citizens of a foreign nation or with respect to which the citizens of a foreign nation have the right effectively to control, except to the extent and to the degree that the President determines that the government of such foreign nation or any of its political subdivisions has implemented, by statute, regulation, policy, or practice, a national manning requirement for equipment engaged in the exploring for, developing, or producing resources, including non-mineral energy resources in its offshore areas.

This Bill also imposes the purchase of automatic identification systems for fishing vessels, fish processing vessels, fish tender vessels more than 50 feet in length (see Sec. 307). The Bill was received in the United States Senate on 30 March 2022 and referred to the Committee on Commerce, Science, and Transportation. A full version of Bill H.R. 6865 may be found here.

On 8 March 2022 the President of the United States of America signed Executive Order 14066, entitled, Prohibiting Certain Imports and New Investments With Respect to Continued Russian Federation Efforts To Undermine the Sovereignty and Territorial Integrity of Ukraine, which includes, among others, the following:

Section 1. (a) The following are prohibited:
(i) the importation into the United States of the following products of Russian Federation origin: crude oil; petroleum; petroleum fuels, oils, and products of their distillation; liquefied natural gas; coal; and coal products;

Executive Order 14066

On 11 March 2022 the President of the United States of America signed Executive Order 14068, entitled, Prohibiting Certain Imports, Exports, and New Investment With Respect to Continued Russian Federation Aggression, which includes, among others, the following:

Section 1. (a) The following are prohibited:
(i) the importation into the United States of the following products of Russian Federation origin: fish, seafood, and preparations thereof; alcoholic beverages; non-industrial diamonds; and any other products of Russian Federation origin as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State and the Secretary of Commerce;

Executive Order 14068

The Government of Kiribati decided to lift the closure and apply a Marine Spatial Planning (MSP) to sustainably use marine resources in the Phoenix Islands Protected Area (PIPA). The Phoenix Islands Protected Area was first established in 2006. The closure of PIPA to commercial fishing activities or as a no take zone was realised in 2015. More information on the PIPA can be found in a dedicated UNESCO World Heritage Centre page. The press release from the Ministry of Fisheries & Marine Development of Kiribati can be read below:

California State Lands Commission adopted regulatory amendments that will implement the federal ballast water discharge standards of the United States of America (USA) for vessels arriving at California ports. These changes will become effective on 1 January 2022.

The State rules apply to vessels over 300GT that are capable of carrying ballast water. The ballast water management requirements address vessels arriving in California Waters from a port or place outside the Pacific Coast Region and vessels arriving in California Waters from a port or place within the Pacific Coast Region, with ballast water from the Pacific Coast Region. The Pacific Coast Region (PCR) comprises the waters within 200nm of land on the Pacific Coast of North America east of 154°W longitude and north of 25°N latitude, excluding the Gulf of California.

The Commission’s press release dated 15 October 2021 is here. A brochure from the Commission’s Marine Invasive Species Program (MISP) with a summary of the regulatory changes is available here. A commentary published by marine insurance company North P&I on these measures is available here.

The Supreme Court of New Zealand (SCNZ) decided (30 September 2021) to uphold previous High Court and Court of Appeal decisions quashing consents granted by the Decision Making Committee (DMC) of New Zealand’s Environmental Protection Agency that would have allowed mining company Trans-Tasman Resources Limited (TTR) to extract up to 50 million tonnes per annum from the South Taranaki Bight seabed (Case number [2021] NZSC 127).

Among other issues of domestic law, SCNZ found that in considering the effect of the Treaty of Waitangi to the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, the DMC should have taken into account the effects of the proposed activity on existing interests adding that tikanga-based customary rights and interests constitute “existing interests” (…) including kaitiakitanga and rights claimed, but not yet granted, under the Marine and Coastal Area (Takutai Moana) Act 2011. The court considered that the proposed activity in terms of tikanga may indicate that material harm extends beyond the physical effects of a discharge, or that pollution can be spiritual as well as physical.

A press release with further details on the case Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board is available here.

On 22 September 2021 the Alliance of Small Islands (AOSIS), during a virtual AOSIS Leaders’ Summit, endorsed The Alliance of Small Islands Leaders’ Declaration 2021. The Leaders’ Declaration focuses on climate change, sustainable development and the ocean. This includes recognising states’ ocean-related responsibilities (preamble), the existing impacts of climate change on SIDS (para. 3), concerns over GHG emissions from shipping and the need for action (para. 15), the BBNJ Agreement process (paras. 39-40), fixed baselines and outer limits of maritime zones – once given due publicity (para. 41), marine plastic pollution –and more generally the need for a new legally binding global agreement on plastic pollution– (paras. 42-43) and enhancing technology transfer, scientific knowledge and recognition of traditional knowledge (para. 44).

The 2021 revision of the Maritime Traffic Safety Law of the People’s Republic of China (Order No. 79 of the President of the People’s Republic of China) entered into force on 1 September 2021. This Order was issued on 29 April 2021, and it introduces new reporting requirements on foreign vessels entering China’s territorial seas. The reporting requirements apply to the following vessels:

1. submersibles;
2. nuclear powered vessels;
3. ships carrying radioactive materials;
4. ships carrying bulk oil, chemicals, liquefied gas and other toxic and harmful substances;
5. other vessels that may endanger the maritime traffic safety.

An official explanation for the revision of the law may be found at the Chinese Government website (in Chinese). An English translation is also available here.

The governments of Antigua and Barbuda and of the United Kingdom (UK) have signed on 27 July 2021 an agreement defining Antigua and Barbuda’s maritime jurisdiction. The agreement sets out the boundary between Antigua and Barbuda and Anguilla, a British Overseas Territory. The waters of Antigua and Barbuda border those of Anguilla (UK) to the northwest, Saint Barthélemy (France) to the northwest, the Federation of Saint Kitts and Nevis to the west, Montserrat (United Kingdom) to the southwest, and Guadeloupe (France) to the southeast. With this new treaty, the Antigua and Barbuda has delimited three of its five maritime boundaries. Only the boundaries with St Kitts and Nevis and Monserrat remain to be negotiated. More information is available at the Commonwealth homepage (here) and at the social media webpage of HM Governor’s Office in Anguilla (here).

On 23 August 2021 Chile promulgated amendments to Decree 95: Determina Las Áreas Jurisdiccionales Marítimas Nacionales Desde Punta Puga A Islas Diego Ramírez (source), adding reference to the outer limit of the continental shelf and including a map. On 28 August 2021, Argentina’s Ministry of Foreign Affairs, International Trade and Worship issued Press Release 344/21 (source) objecting to this claim and seeking resolution through dialogue.

On 6 August 2021 the leaders at the Fifty-First Pacific Islands Forum (PIF) made a declaration entitled, Declaration on Preserving Maritime Zones in the Face of Climate Change-related Sea-Level Rise. The declaration recalls the principles of legal stability, security, certainty, predictability, equity, fairness, justice and good faith that underpin UNCLOS and their relevance in the interpretation and application of UNCLOS in the context of sea-level rise and climate change.

The PIF leaders:

Affirm that the Convention imposes no affirmative obligation to keep baselines and outer limits of maritime zones under review nor to update charts or lists of geographical coordinates once deposited with the Secretary-General of the United Nations,
Record the position of Members of the Pacific Islands Forum that maintaining maritime zones established in accordance with the Convention, and rights and entitlements that flow from them, notwithstanding climate change-related sea-level rise, is supported by both the Convention and the legal principles underpinning it,
Declare that once having, in accordance with the Convention, established and notified our maritime zones to the Secretary-General of the United Nations, we intend to maintain these zones without reduction, notwithstanding climate change-related sea-level rise,
Further declare that we do not intend to review and update the baselines and outer limits of our maritime zones as a consequence of climate change-related sea-level rise, and
Proclaim that our maritime zones, as established and notified to the Secretary-General of the United Nations in accordance with the Convention, and the rights and entitlements that flow from them, shall continue to apply, without reduction, notwithstanding any physical changes connected to climate change-related sea-level rise.

PIF, Declaration on Preserving Maritime Zones in the Face of Climate Change-related Sea-Level Rise (6 Aug 2021)

For more information see here.