Category Archives: State Practice

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.

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).

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”.

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.

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).

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.

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).

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.

On 30 September 2020 the Framework Agreement on Fisheries between the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Norway was signed in London by representatives of the UK and Norway. On 19 October 2020 the Framework Fisheries Agreement was laid before the UK Parliament and published. The Framework Fisheries Agreement provides for annual negotiations on the exchanges of quota and access to waters (Arts. 3-4), as well as collaboration on control and enforcement measures (Art. 6), the licensing of vessels (Art. 5) and scientific research (Art. 1(h)). The Framework Fisheries Agreement recognizes the importance of zonal attachment as a principle of international fisheries management (preamble).

The Framework Fisheries Agreement applies to the EEZ (Art. 2) (or variations thereof) and, subject to domestic ratification, will enter into force 1 January 2021 (Art. 11). The Agreement applies to metropolitan UK only. According to the UK Government, it represents the first fisheries agreement for the UK ‘as an independent coastal state in 40 years’. Separate trilateral discussions will still be needed to establish trilateral governance arrangements for North Sea stocks (UK, Norway and the EU).

For more information see the Framework Fisheries Agreement, UK Explanatory memorandum and press releases (UK; Norway).

On 9 October 2020 the West of Scotland Marine Protected Area Order 2020, a Scottish Ministerial Order, entered into force, creating the largest MPA located in national waters within the North-East Atlantic. Features of the former Rosemary Bank Seamount MPA are now protected within the West of Scotland MPA.

For more information see here.

On 9 September 2020 the President of the United States of America by Proclamation 10071, entitled, Revision to United States Marine Scientific Research Policy, establishes the revised US policy:

Section 1. Policy. The United States will exercise its right to regulate, authorize, and conduct marine scientific research, with a specific requirement to authorize, in advance, all instances of foreign marine scientific research, in the United States EEZ and on its continental shelf to the extent permitted under international law.

Former President of the United States of America, Ronald Regan, in the Presidential Statement of 10 March 1983, entitled, Statement on United States Oceans Policy, had established the previous US MSR policy:

While international law provides for a right of jurisdiction over marine scientific research within such a zone, the proclamation does not assert this right. I have elected not to do so because of the United States interest in encouraging marine scientific research and avoiding any unneccessary burdens.

Thus, according to the US State Department Press Release, the United States previously required advance consent for MSR conducted in its EEZ and on the U.S. continental shelf only when such research implicated certain U.S. domestic legal requirements.

On 26 August 2020, the US State Department announced visa restrictions on “individuals responsible for, or complicit in, either the large-scale reclamation, construction, or militarization of disputed outposts in the South China Sea, or the PRC’s use of coercion against Southeast Asian claimants to inhibit their access to offshore resource”. This includes inadmissibility to the USA for listed persons and visa restrictions for immediate family members. The persons listed remain confidential, but are inadmissible on the basis of US foreign policy concerns (senior State Department official; 8 USC 1182(a)(3)(c)).

On 26 August 2020, the US Department of Commerce announced that 24 Chinese companies were added to the Entity List (15 CFR 744.16) of the Export Administration Regulations on the basis “these entities enabled China to reclaim and militarize disputed outposts in the South China Sea” (85(167) Federal Register 52898). The US government determined it had “reasonable cause to believe, based on specific and articulable facts, that the entity has been involved, is involved, or poses a significant risk of being or becoming involved in activities that are contrary to the national security or foreign policy interests of the United States” (15 CFR 744.11). A license is required, to the extent specified on the Entity List, to export, reexport, or transfer (in-country) any item subject to the Export Administration Regulations.

On the 27 August 2020, the Chinese Foreign Ministry Spokesperson called the measures “unjustified”.

The President of the United States of America issued Proclamation on Modifying The Northeast Canyons And Seamounts Marine National Monument (5 June 2020). This proclamation restores commercial fishing that is carried out in accordance with Magnuson-Stevens and other applicable laws, regulations, and requirements. It reverses restrictions on commercial fishing set forth in Proclamation 9496, which prohibited commercial fishing, with a phase-out period for American lobster and red crab fisheries, within the monument’s boundaries.

In Massachusetts Lobstermen’s Association v. Ross, the United States Court of Appeals, District of Columbia Circuit (349 F.Supp.3d 48 (2018)), dismissed a complaint from several commercial-fishing associations that challenged the creation of the Monument (5 October 2018). The United States District Court, District of Columbia (9945 F.3d 535 (2019)) upheld that ruling (27 December 2019).

The new Proclamation may be found here.

On 24 June 2020 the Ministry of Fisheries and Marine Resources of the Federal Republic of Somalia (2) issued a press release, entitled, Iranian flagged fishing vessels identified operating illegally in Somalian EEZ. Somalia calls upon Iran to cooperate in addressing the suspected (at least) 112-193 Iranian fishing vessels operating in the EEZ of Somalia and Yemen between January 2019 to 14 April 2020. The information has been shared with the Indian Ocean Tuna Commission (IOTC). Foreign flagged vessels may only fish in the Somalian exclusive economic zone beyond 24 nautical miles, and currently only 31 Chinese-flagged vessels are licenced.

The Commission on the Limits of the Continental Shelf (CLCS) has published recommendations authorizing France to extend its continental shelf off the islands of La Réunion and Saint-Paul and Amsterdam. According to these recommendations, published on 10 June 2020, France may extend its continental shelf off the islands of La Réunion and Saint-Paul and Amsterdam (French Southern and Antarctic Lands). France will thus expand its submarine domain by 151,323 km2 (58,121 km2 off La Réunion and 93,202 km2 off Saint-Paul and Amsterdam). Further information is available here (in French).

The Department of Foreign Affairs of the Philippines issued a statement (30 April 2020) contesting the so-called districts of “Nansha” and “Xisha” under the supposed administrative jurisdiction of its self-declared “Sansha City” announced on 18 April 2020 by the People’s Republic of China. According to this announcement by China, “the Xisha District of Sansha City has jurisdiction over the islands and reefs of the Xisha Islands and its sea areas, and is in charge of the islands and reefs of the Zhongsha Islands and its sea areas”. The statement from the Philippines is available here.

The United States of America also issued a statement (22 April 2020) describing China’s announcement as a “new unilateral announcement of administrative districts over disputed islands and maritime areas in the South China Sea”.

On 4 February 2020 the Russian Foreign Minister sent a message to the Norwegian Minister of Foreign Affairs on the 100^th anniversary of the Spitsbergen Treaty. The letter raises numerous ‘concerns’ including “the unlawfulness of Norway’s fisheries protection zone” and requests further bilateral consultations.

For further information see MID Press Release № 180-04-02-2020.

On 29 January 2020 the UK Parliamentary Under Secretary of State (Minister for Rural Affairs and Biosecurity) introduced to the House of Lords the Fisheries Bill (HL Bill 71). As previously reported, the bill was first introduced during the last parliament in the House of Commons. As set out in the Explanatory Notes (HL Bill 71):

Since the Bill was most recently considered in the last Parliament, the Government has included additional provisions: a single set of UK-wide fisheries objectives (including a new climate change objective); a duty to create fisheries management plans to fish at sustainable limits for all stocks; and a broadening of the grant making power. The Bill also provides further powers for the Welsh and Scottish Governments that reflect a number of those granted to the Secretary of State, and a change to the commencement provisions (para. 3).

Of particular interest for international fisheries law is the climate change objective (clause 1(1)(h), 1(9)) and the fisheries management plan obligations (clauses 6-9).

For further information see the Human rights memorandum and the previous white paper, Sustainable fisheries for future generations. Progress of the Bill may be followed here.

The eighth meeting of the Malaysia-Singapore Joint Technical Committee (MSJTC) on the Implementation of the International Court of Justice Judgment on Pedra Branca, Middle Rocks and South Ledge was held 21 January 2020 in Kuala Lumpur, Malaysia. The outcomes of the meeting include:

“The Meeting further agreed for the Sub-Committee on Maritime Boundary Delimitation of Pedra Branca, Middle Rocks and South Ledge to commence negotiations.”

For further information see the Joint Press Statement by the Ministry of Foreign Affairs for Singapore and Malaysia respectively.

The MSJTC is a cooperative process established to implement the 2008 ICJ Judgment (Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)). See further the discontinued Request for Interpretation of the Judgment of 23 May 2008 in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) (Malaysia v. Singapore).