Category Archives: 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).

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USA: Ocean Shipping Reform Act passed by Congress

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.

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Canada/Denmark: Hans Island/Tartupaluk maritime boundary dispute resolved

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.

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

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

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EU/Norway: Understanding on Fisheries Management in Northeast Arctic

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.

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EU: Prohibition on Access to Port for Russian Flagged Vessels

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

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

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

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

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

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

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

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

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

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

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

(c) humanitarian purposes;

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

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

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

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

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

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UK: The Russia (Sanctions)(EU Exit)(Amendment)(No. 7) Regulations 2022

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.

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EU: Member of North Pacific Fisheries Commission

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

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

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

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

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

London Protocol, Article 4(1).

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

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USA: Coast Guard Authorization Act of 2022 passed by House of Representatives

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.

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Norway: conviction in ship-breaking case upheld by Court of Appeal

A Court of Appeal in Norway (Gulating Lagmannsrett) confirmed the prison sentence of a ship owner for aiding and abetting the attempt to export a ship to Pakistan for scrapping, in violation of the Norwegian Pollution Control Act. The Court of Appeal found that it makes little difference to the criminality of the act if a shipowner himself sells the ship directly to a scrapper on the beach in Gadani, or sells to an intermediary and criminally contributes to its export and scrapping. Further information may be found in this press release from the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økokrim). The background history on the case of this ship – the Harrier – was also published by the NGO Shipbreaking Platform.

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UK: consultation on the development of an Emissions Trading Scheme open

The Emissions Trading Scheme Authority of the United Kingdom (UK ETS) is seeking stakeholder views on proposals to develop the UK ETS which operates across England, Scotland, Wales and Northern Ireland. This call is of particular interest to individual companies and representatives of the maritime sector as Chapter 7 sets out proposals to expand the scope of the UK ETS to the domestic maritime sector. UK ETS replaced the UK’s participation in the EU ETS on 1 January 2021. This consultation is open until 17 June 2022; more information available here.

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UK: responses to the consultation on the draft nuclear ships regulations published

The Maritime and Coastguard Agency (MCA) of the United Kingdom (UK) has published a summary of the responses to a consultation on the proposed Merchant Shipping (Nuclear Ships) Regulations. MCA had opened this consultation in August 2021 seeking views to assist in transposing Chapter VIII in the Annex to the International Convention for Safety of Life at Sea, 1974 (‘SOLAS’ or ‘the Convention’) into UK law. Views were also sought on the accompanying draft Marine Guidance Notice. The UK Government now intends to make the Regulations and bring them into force by the autumn of 2022. The Marine Guidance Note will be finalised and published at that time. A summary of the responses to that consultation is available here.

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USA: Import prohibitions on Russian-origin fisheries & oil and gas sectors

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

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Arctic Council: 7 Members Temporarily Pause Participation

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

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

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

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

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

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Eritrea: Written Notice of IOTC Agreement Withdrawal

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

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

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

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

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ITLOS: The M/T “San Padre Pio” (No. 2) Case (Switzerland/Nigeria), Order 2021/6

Concerning The M/T “San Padre Pio” (No. 2) Case (Switzerland/Nigeria), on 29 December 2021, as per the request of Switzerland to which Nigeria had no objection, the President of the Tribunal in accordance with Article 105 of the Rules of the Tribunal:

Places on record the discontinuance, by agreement of the Parties, of the proceedings initiated on 17 December 2019 by Switzerland and Nigeria; and

Orders that the case be removed from the List of cases

Order 2021/6 of 29 December 2021.

As previously reported, in May 2021 Switzerland and Nigeria concluded a Memorandum of Understanding (MoU) providing for the immediate release of the M/T “San Padre Pio” vessel and the eventual discontinuance of The M/T “San Padre Pio” (No. 2) Case (Switzerland/Nigeria) proceedings, under Paragraph 4 of the MoU, “from the moment that the M/T ‘San Padre Pio’ enters the high seas, or the territorial sea or Exclusive Economic Zone of another State”. As per the letters submitted to the Tribunal in December 2021 by the Agent of Switzerland and the Agent of Nigeria, respectively, on 10 December 2021, the M/T San Padre Pio was released, departed the maritime zones of Nigeria and entered the exclusive economic zone of Bénin (Order 2021/6 paras 11-14). Finally, Paragraphs 5-6 of the MoU are quoted as providing that:

For the sake of clarity, upon the discontinuance of these proceedings, the Provisional Measures Order dated 6th July, 2019, made in: The M/T ‘San Padre Pio’ case (Switzerland/Nigeria) (Case No. 27) will cease to have effect

This agreement constitutes a full and final settlement of the matter relating to the MIT ‘San Padre Pio’ between the Parties

Order 2021/6 para 15

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Kiribati: fisheries closure of Phoenix Islands Protected Area uplifted

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:

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

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

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USA: federal ballast water discharge standards adopted in California

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.

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Brazil: immunity of Germany waived in case of fishing boat attacked by submarine in 1943

The Supreme Federal Court (STF) of Brazil upheld the appeal of family members of a fisherman who want the Federal Republic of Germany to compensate them for his death in 1943, when a fishing boat was sunk by a German submarine off the Brazilian coast. By majority vote, the STF established the thesis that unlawful acts committed by foreign States in violation of human rights do not enjoy immunity from jurisdiction in Brazil. Reference: (ARE) 954858.

The attack on the fishing boat Changri-lá killed ten fishermen in July 1943, during World War II, in Brazilian territorial sea, near Cabo Frio (RJ). In 2001, the Maritime Court officially recognized that the cause of the wreck was the torpedoing of the vessel by a German U-199 submarine, leading the grandchildren and widows of one of the fishermen’s grandchildren to file, in 2006, an action for compensation for material and moral damages. In the first instance, the action for reparation was dismissed without a resolution on the merits. The family appealed to the Superior Court of Justice (STJ), but the appeal was not admitted based on the jurisprudence of that Court, which prevents the foreign State from being held liable for an act of war.

A press release from the STF is available here and the judgment (in Portuguese), which was made public on 24 September 2021, can be read here.

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

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

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

Source: OSPAR Commission, NACES MPA

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New Zealand: Supreme Court upholds decision to quash consents to seabed mining

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.

The South Taranaki Bight (STB) showing the Sediment Model Domain (SMD) (oblique black rectangle). The approximate project area is shown in red and the 12 NM boundary of the Territorial Sea is shown in yellow. Source: SC 28/2020 [2021] NZSC 127, page 128.

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AOSIS: Leaders’ Declaration 2021

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).

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Ecuador: Preliminary Information submission to CLCS

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

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China: revised Maritime Traffic Safety Law enters into force

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.

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United Kingdom/Antigua and Barbuda: maritime delimitation agreement signed

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).

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Chile/Argentina: Continental Shelf Differences

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.

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PIF: Declaration on Preserving Maritime Zones

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.

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Netherlands/Dominican Republic: Maritime Delimitation Agreement

On 5 July 2021 The Netherlands and Dominican Republic signed the Agreement between the Kingdom of the Netherlands and the Dominican Republic concerning Maritime Delimitation in Santo Domingo (Dominican Republic) concerning their maritime entitlements in the Caribbean region. According to the Ministry of Foreign Affairs of the Dominican Republic (MIREX) [unofficial translation] “the delimitation of all maritime zones was drawn on the basis of the equidistance and will be the geodesic line formed by the points identified by their geographical coordinates expressed in the reference system World geodetic system of 1984”.

For more information see the MIREX Press Release (2).

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

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

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

For more information see here.

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India: Supreme Court Disposes of the ‘Enrica Lexie’ Incident Related Proceedings

The Indian Supreme Court, by Order of 15 June 2021 in Special Leave Petition (Civil) No 20370 of 2012: Massimilano Latorre and Ors vs Union of India and Ors, quashed the criminal proceedings against the Italian marines involved in the ‘Enrica Lexie’ Incident and disposed of all related pending matters before the court (Order, Paragraph 7). As per The ‘Enrica Lexie’ Incident (Italy v. India) Award, Paragraph 1094(B)(3), the Arbitral Tribunal had decided “India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marines”. Likewise, in respect of The ‘Enrica Lexie’ Incident (Italy v. India) Award, Paragraph 1094(B)(6)(b) concerning compensation due by Italy, Italy and India “agreed to the amount of INR 100,000,000 (INR 100 million) to be paid by Italy as total compensation under all the four heads of compensable loss identified by the Arbitral Tribunal’s award” (Order, Paragraph 3). Finally, concerning Italy’s commitment to resume its criminal investigation, expressed during the ‘Enrica Lexie’ Incident (Italy v. India) proceedings, “Italy will resume its criminal investigation in the events of 15.02.2012 and that both India and Italy will cooperate with each other in pursuit of that investigation” (Order, Paragraph 3).

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Switzerland/Nigeria: M/T “San Padre Pio” Release Agreement

On 20 May 2021 the Nigerian minister of justice and the Swiss ambassador in Nigeria signed a memorandum of understanding providing for the immediate release of the M/T “San Padre Pio” vessel, a vessel detained in January 2018 in Nigeria’s exclusive economic zone. According to the Press Release, “Once the vessel has been able to leave Nigeria’s exclusive economic zone, the legal proceeding pending before the International Tribunal for the Law of the Sea (ITLOS) in Hamburg can be terminated.” Therefore, upon successful implementation of the MoU, The M/T “San Padre Pio” (No. 2) Case (Switzerland/Nigeria) currently before ITLOS will be terminated (see previous reporting).

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WTO: Fisheries Subsidies Draft Negotiating Text

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

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

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CLCS: Iceland Partial Revised Submission

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

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

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

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ICJ: Non-Participation of Kenya during Somalia v. Kenya hearings

By letter dated 11 March 2021, the Agent of Kenya in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) informed the ICJ that Kenya would not be participating in the hearings, including the reasons for its non-participation. Kenya requested “the opportunity to address the ICJ orally before the commencement of the hearings” and enclosed a 175 page ‘Position Paper’ “for consideration by the Judges even as the hearing proceeds without Kenya’s participation”. Somalia opposed both requests and the ICJ “[h]aving considered the views of the Parties, the Court decided not to grant either of the two requests made by Kenya”. Despite Kenya’s non-participation, hearings proceed on 15-24 March 2021 and the ICJ “has available to it the Counter-Memorial and Rejoinder filed by Kenya, as well as multiple volumes of materials that were produced by Kenya”.

For more information see the Verbatim record 2021/2.

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Belgium: resolution on deep seabed mining adopted in Parliament

The Federal Parliament of Belgium adopted (16 January 2021) Resolution 55 1687 on deep seabed mining. This resolution requests the Belgium Government to 1) support fundamental scientific research and data collection for further knowledge of the deep sea and for the protection of existing marine ecosystems, and 2) to continue to respect environmental legislation and the precautionary principle when developing possible exploitation rules for deep-sea mining to preserve the biodiversity of marine ecosystems. Resolution 55 1687 may be found here (in French and Dutch).

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UK/EU: Trade and Cooperation Agreement

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

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

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

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ILO: Amendments of 2018 to The Maritime Labour Convention Enter Into Force

The Amendments of 2018 to the Code of the Maritime Labour Convention, adopted 5 June 2018, entered into force 26 December 2020 (see further the status of acceptance by parties). The amendments provide that parties shall require that a seafarer’s employment agreement (SEA) shall continue to have effect while a seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships (ARAS), including the continued benefit of wages and other entitlements under the SEA. Piracy is defined in the MLC Amendments of 2018 by reference to the UNCLOS definition of piracy (see Articles 101-103 of UNCLOS). The definition of ARAS in the MLC Amendments of 2018 follows the previous precedents found in IMO documents (IMO Assembly Resolution A.1025(26), Annex, Paragraph 2.2) and regional treaties (Article 1(2) of Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia).

For an example of domestic implementation of the MLC Amendments of 2018 see Singapore’s Merchant Shipping (Maritime Labour Convention) (Amendment) Act 2020.

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Greece: Closing Bays and Straight Baselines in the Ionian Sea

On 27 December 2020, in accordance with Articles 5, 7, 8, 10, 13 and 14 of UNCLOS, Presidential Decree No. 107 applies closing lines to the listed bays (Article 2 and Table) and further straight baselines (Article 3 and Table) in the maritime area of the Ionian and the Ionian islands up to Cape Tainaro in the Peloponnese. According to the Greek Ministry of Foreign Affairs, an extension of the territorial sea will be forthcoming as the baselines are “a necessary step in the process for extending the country’s territorial waters in the above-mentioned area”.

While limited in application to the Ionian Sea, Article 1(3) of Presidential Decree No. 107 provides that “The Hellenic Republic reserves the right to exercise its respective rights in the other regions of its Territory, as they derive from the United Nations Convention on the Law of the Sea of ​​10 December 1982, which reflects customary international law”.

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

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

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

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UK: Tristan da Cunha MPA announced

The Government of the United Kingdom (UK) has announced the creation of a Marine Protected Area (MPA) in the waters around its Overseas Territory of Tristan da Cunha (13 November 2020). This MPA is set to become the largest fully protected marine reserve in the Atlantic Ocean, at 687,000 square kilometres. The research leading to this declaration was supported by the UK’s Blue Belt Programme. More information is available here.

Map of the Tristan da Cunha Marine Protection Zone
The Tristan da Cunha Marine Protection Zone. Source: Tristan da Cunha Government

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Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. Russia)

As previously suggested, on 22 August 2020 Russia did exercise its right to submit preliminary objections in the Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation), PCA Case No. 2019-28, contending that the Arbitral Tribunal does not have jurisdiction. Ukraine and Russia disagreed upon whether these preliminary objections are of “an exclusively preliminary character” that may result in bifurcation of the proceedings (Rules of Procedure, Art 11(3)). On 27 October 2020 the Arbitral Tribunal (UNCLOS, Annex VII) issued its Procedural Order No. 2, whereby:

THE ARBITRAL TRIBUNAL HEREBY ORDERS:

1. The Arbitral Tribunal considers that the Preliminary Objections of the Russian Federation appear at this stage to be of a character that justifies having them examined in a preliminary phase, and in accordance with Article 11, paragraph 3, of the Rules of Procedure, decides that the Preliminary Objections of the Russian Federation shall be addressed in a preliminary phase of these proceedings.

2. The proceedings on the merits are hereby suspended.

3. In accordance with paragraph 5(t) of Procedural Order No. l, Ukraine shall file any observations on the Preliminary Objections of the Russian Federation within three months of the date of this Order. Following receipt of these observations, the Arbitral Tribunal will decide whether any further written submissions are needed and, after consultation with the Parties, the time limits for such submissions.

4. If the Arbitral Tribunal, in delivering its award in the preliminary phase of the proceedings in accordance with Article 11 , paragraph 7, of the Rules of Procedure, declares that a Preliminary Objection does not possess an exclusively preliminary character, then, in accordance with
Article 11, paragraph 3, of the Rules of Procedure, that Objection shall be ruled upon in conjunction with the merits.

Judge Gudmundur Eiriksson appended a Dissenting Opinion to the Order of the Arbitral Tribunal. Eiriksson agreed with the decision of the Tribunal but did not share the reasoning of the Tribunal.

See further the PCA Press Release.

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UK/Greenland: MoU on Enhancing Fisheries Cooperation

on 9 November 2020 the Memorandum of Understanding between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Greenland on enhancing cooperation on fisheries and related issues was signed in duplicate in London and Nuuk by representatives of the UK and Greenland. The governments of the UK and Greenland will establish a UK-Greenland fisheries dialogue (‘the Fisheries Dialogue’) to “discuss, share information, and cooperate on fisheries and marine issues, and other associated matters”.

The non-exhaustive list of matters for the Fisheries Dialogue includes fisheries, aquaculture, fish processing and the wider supply chain, broader marine conservation, scientific cooperation and mutual support in international fora (e.g. RFMOs) (Paragraph 1). Non-state actors may be involved, most notably in fostering private sector or scientific cooperation (Paragraphs 2, 5). The Fisheries Dialogue shall meet at least annually (Paragraphs 3-4). The MoU will come into effect on 1 January 2021 (Paragraph 7).

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UK/Faroe Islands: Fisheries Framework Agreement

On 29 October 2020 the Framework Agreement on Fisheries Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Faroes was signed in Copenhagen by representatives of the UK and Faroes Islands. The Framework Fisheries Agreement recognizes zonal attachment as an important principle of international fisheries management (preamble). Modern principles of international fisheries law shall guide cooperation (Article 1), with annual negotiations on the possible exchanges of quotas or access to waters (Articles 2-3). Parties shall cooperate on fishing vessel licensing (Article 4) and further future arrangements on monitoring, control and enforcement are envisaged (Article 5).

The Framework Fisheries Agreement applies to the EEZ (or variations thereof) and, subject to domestic ratification, will enter into force 1 January 2021 (Article 11). The Agreement applies only to metropolitan UK and only to the Faroes Islands (Article 10).

For more information see the Explanatory Memorandum and UK Press Release.

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Norway: HFO ban in Svalbard proposed

The Government of Norway submit a proposal (6 November 2020) to ban ships from using heavy fuel oil (HFO) near Svalbard archipelago. The Ministry of Climate and the Environment aims to legislate a requirement for fuel for motor traffic at sea in the entire territorial waters of Svalbard. The provision is designed as a ban on using or having on board other petroleum-based fuel than natural gas and marine gas oil. A more detailed definition of natural gas and marine gas oil is proposed to be included in regulations on motor traffic on Svalbard. The proposal includes a transition period of two years for general cargo traffic to Longyearbyen and Barentsburg. The need for transitional arrangements will be reassessed after the ongoing consultation stage (see here, deadline 6 February 2021). More information is available here (in Norwegian).

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USA: Ocean-Based Climate Solutions Act introduced

The House Natural Resources Committee of the United States House of Representatives has introduced on 20 October 2020 the Ocean-Based Climate Solutions Act (OBSCA). Bill text of the OBSCA can be viewed here, a section-by-section summary is here, and a fact sheet on the bill can be viewed here. Among other measures, the OBSCA establishes monitoring, reporting, and verification requirements of greenhouse gas emissions applicable “to all vessels of 5,000 gross tons or more calling at, leaving, or transiting between, or at berth at, ports in the United States, regardless of flag” (sections 1401-1402). More information on OBSCA is available here and here.

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