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.
Category Archives: State Practice
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.
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).
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.
Bangladesh has lodged an amended submission on the limits of its outer continental shelf in the Bay of Bengal to the United Nations (22 October 2020). The original submission to the CLCS was made on 25 February 2011. Subsequently, the maritime boundaries of Bangladesh with Myanmar and India were delimited in 2012 and 2014, through international adjudication process. The amended submission has been made to reflect the successful outcomes of those international processes. The press release from the Permanent Mission of Bangladesh to the United Nations is available here. The submission, as received by the Commission on the Limits of the Continental Shelf, is available 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).
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.
Following postponement of the fourth session of IGC on a BBNJ Agreement, the President of the IGC has decided to launch the BBNJ Intersessional Work, entitled, Virtual intersessional work of the Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, from 14 September 2020. The objective is to continue the dialogue on the key pillars of any future BBNJ Agreement, as well as any cross cutting issues.
For more information see here.
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 Meeting of States Parties to the United Nations Convention on the Law of the Sea (SPLOS) have elected seven Members of the International Tribunal for the Law of the Sea (ITLOS), following three rounds of voting held 24-26 August 2020 (UNCLOS, Annex VI, Article 4; Round 1; Round 2; Round 3).
The States Parties re-elected David Joseph Attard and Markiyan Z. Kulyk and elected Kathy-Ann Brown (Jamaica), Ida Caracciolo (Italy), Jielong Duan (China), María Teresa Infante Caffi (Chile), and Maurice Kamga (Cameroon) (see curricula vitae of candidates nominated by States Parties). The nine year term of each Member will commence 1 October 2020 (Rules of the Tribunal, Article 2).
The term of office for five Members of the Tribunal shall expire 30 September 2020, namely, Tafsir Malick Ndiaye (Senegal), Jean-Pierre Cot (France), Anthony Lucky (Trinidad and Tobago), Zhiguo Gao (China) and Elsa Kelly (Argentina).
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.
On the 11 June 2020 Singapore and the International Tribunal for the Law of the Sea (ITLOS) signed the Model Agreement: Agreement for the provision of facilities for the International Tribunal for the Law of the Sea / a Chamber of the International Tribunal for the Law of the Sea to sit or otherwise exercise its functions in the Republic of Singapore in [case name]. The Model Agreement establishes the terms and conditions under which the Singapore government shall provide appropriate facilities for the Tribunal, or a Chamber of the Tribunal, to sit or otherwise exercise its functions in Singapore (art. 2).
The Model Agreement enables ITLOS to implement Article 1(3) of UNCLOS Annex VI, whereby the Tribunal may sit and exercise its functions outside of Hamburg (Germany) whenever it considers this desirable. Consultations concerning Singapore as a seat for the Tribunal began in 2007, resulting in the 2015 Joint Declaration Signed between Ministry of Law and President of the Tribunal (2). Negotiations on the terms of the Model Agreement, as per Article 7 of the Agreement on the Privileges and Immunities of the International Tribunal for the Law of the Sea, concluded in October 2019.
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).
On the 22 May 2020 Ukraine submitted its written memorial to the Arbitral Tribunal (UNCLOS, Annex VII) in respect of the Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation), PCA Case No. 2019-28. According to Procedural Order No. 1 (22 November 2019), the Russian Federation shall submit its written memorial within 6 months (para. 4), or preliminary objections within 3 months (para 5; Rules of Procedure (22 November 2019), art. 11). Any preliminary objections that ‘possess an exclusively preliminary character’ are to be examined in a preliminary phase prior to the merits of the case.
On the 26 May 2020 the Russian MFA commented on Ukraine’s submission. The Russian MFA suggests that Ukraine’s written memorial has “reduced the list of its [Ukraine’s] initial claims”. There is also a suggestion that Russia will exercise its right to submit preliminary objections:
Next, Russia will have to file its jurisdictional objections regarding this case by August 22, 2020 under the relevant rules of procedure.
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”.
The United Kingdom published (April 2020) a Draft Working Text for a Fisheries Framework Agreement between the United Kingdom of Great Britain and Northern Ireland and the European Union. The preamble of this document states that:
The UK proposal reflects the fact that, at the end of 2020, the UK will be an independent coastal State and will no longer be bound by the Common Fisheries Policy, and that the current arrangements on quota-sharing will end. In line with the UK’s commitment to best available science, future fishing opportunities should be based on the principle of zonal attachment. The UK proposal is based on relevant international precedents, including the EU’s separate fisheries agreements with other coastal states. Through this agreement, and the annual negotiations it provides for, the UK would fulfil its obligations under UNCLOS to cooperate with the EU on the sustainable management of shared stocks.
The document calls for “annual negotiations on fishing opportunities and access” (Article 2). It proposes that any vessels granted access to fish in the relevant waters must “obtain an authorisation and a licence” (Article 3.1) before commencing fishing operations and that “each Party shall manage its own fisheries independently and may take such measures in its relevant waters as it considers appropriate to ensure the rational and sustainable management of fisheries” (Article 4.1). The document is available here.
A Draft text of the Agreement on the New Partnership with the United Kingdom, which includes a chapter on fisheries, was published (18 March 2020) by the European Union. It is available here.
On 22 April 2020, the European Union, Norway and the Faroe Islands signed the Agreed Record of Conclusions of Fisheries Consultations Between Norway, The European Union and The Faroe Islands on Control Measures for Pelagic Stocks in the North-East Atlantic for 2020. According to paragraph 5, the agreed monitoring, control and surveillance measures found in Annexes I-V shall apply to “mackerel, herring, blue whiting and horse mackerel”. Annex VI establishes the Coastal States Monitoring, Control and Surveillance Working Group which aims to “establish best practice[s] in monitoring, control and surveillance (MCS) both at sea and on land, and recommend harmonised MCS measures”.
For further information see the Agreed record of conclusions on control measures for pelagic stocks in the North-East Atlantic for 2020 and the EU press release.
April 2020 witnessed 3 further communications being submitted to the Commission on the Limits of the Continental Shelf (CLCS) concerning the Partial Submission by Malaysia in the South China Sea. On the 10 April 2020 Vietnam submitted Communication dated 10 April 2020 (Viet Nam 1) responding to the CLCS Submission by the Government of Malaysia. Vietnam also submitted Communication dated 10 April 2020 (Viet Nam 2) responding to the previously reported Communications dated 6 March 2020 (Philippines 1 and 2). On the 17 April 2020 China submitted Communication dated 17 April 2020 (China) responding to Communications dated 10 April 2020 (Viet Nam 1 and 2), as well as the previously reported Communication dated 30 March 2020 (Viet Nam).
Accompanying the previously reported Revised Draft Text of A BBNJ Agreement, the President of the Intergovernmental Conference (IGC) invited delegations to submit by the 3 February 2020 (extended to 20 February 2020) textual proposals for consideration at the fourth session. The secretariat (DOLAS) was requested to produce a compilation of proposals received by that deadline (A/CONF.232/2020/3, para. 9). DOLAS has released two compilations dated 15 April 2020:
- A compilation of textual proposals submitted by delegations for consideration at the fourth session.
- An article-by-article compilation of textual proposals for consideration at the fourth session.
For more information see the documents page for the fourth substantive session.
March 2020 witnessed 3 further communications being submitted to the Commission on the Limits of the Continental Shelf (CLCS) concerning the Partial Submission by Malaysia in the South China Sea. On the 6 March 2020, the Philippines submitted Communication dated 6 March 2020 (Philippines 1) responding to the previously reported Communication dated 12 December 2019 (China). The Philippines also submitted Communication dated 6 March 2020 (Philippines 2) responding to CLCS Submission by the Government of Malaysia. On the 23 March 2020 China submitted Communication dated 23 March 2020 (China) which responds to Philippines Communications 1 and 2.
Update (03/04/2020): On the 30 March 2020 Vietnam submitted Communication dated 30 March 2020 (Viet Nam), responding to China’s Communications, dated 12 December 2019 and 23 March 2020 respectively.
On 4 February 2020 the Russian Foreign Minister sent a message to the Norwegian Minister of Foreign Affairs on the 100th 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).
Singapore/Malaysia: Sub-Committee to Commence Negotiations on Maritime Boundary Delimitation of Pedra Branca, Middle Rocks and South Ledge
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.”
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).
On the 30 December 2019 the Ministry of Foreign Affairs of the Republic of Indonesia formally protested against Chinese vessels allegedly involved in IUU fishing activities in Indonesia’s EEZ (referred to by Indonesia as the ‘North Natuna Sea’), as well as the presence of a Chinese Coast Guard vessel. Indonesia’s response included summoning the Chinese Ambassador to Jakarta and submitting a diplomatic memorandum of protest.
The Indonesian position repeated its rejection of the Chinese ‘nine-dash line’, reiterated China’s obligations to comply with both UNCLOS (as a state party) and the South China Sea Arbitration Award (UNCLOS, Annex VII, Article 11; South China Sea Arbitration Award, Paragraph 1200) and reiterated Indonesia’s position that Indonesia does not have any overlapping jurisdiction with China in the South China Sea. On 1 January 2020 a subsequent statement by the Ministry of Foreign Affairs of the Republic of Indonesia rejected the claims by China to historic maritime waters as without legal basis, as well as any Chinese references to ‘relevant waters’ as unrecognized in UNCLOS. “Indonesia Urges the People’s Republic of China to explain the legal basis and clear boundaries regarding the claims of the PRC in [the South China Sea] based on UNCLOS 1982” (Paragraph 3 [in Indonesian]).
In November 2015 a Chinese spokesperson stated “[t]he Chinese side has no objection to Indonesia’s sovereignty over the Natuna islands”. To date, in response to the December 2019 incident a Chinese spokesperson (31 December 2019; 2 January 2020) has repeated its general position on the South China Sea without further detail.
The Parliament of Morocco (Commission des Affaires étrangères, de la défense nationale, des affaires islamiques et des Marocains résidant à l’étranger à la Chambre des représentants) has approved (16 December 2019) two bills (projets de loi) concerning the delimitation of maritime zones. The projet de loi n° 37.17 alters the previous legislation on the territorial waters, updating existing baselines with more recently surveyed data; the projet de loi n° 38.17 alters previous legislation concerning the exclusive economic zone and the continental shelf. Both bills were first presented in 2017 and they apply to the waters adjacent to the Southern Provinces of Morocco, located within a Non-Self Governing Territory listed under Chapter XI of the Charter of the United Nations as “Western Sahara“.
The Minister of Foreign Affairs of Morocco has stated that these initiatives “do not mean the unavailability of Morocco for a solution to any possible conflict with its neighbours Spain and Mauritania”. This statement is available here (in French). In response, the Government of the Sahrawi Arab Democratic Republic published a statement saying that the “unilateral Moroccan act to claim Western Sahara maritime zones is null and void”. This statement is available here.
*** Update 2020/04/07: Bills 37.17 and 38.17 have been turned into laws. The laws were published in the Official Bulletin on 30 March 2020. ***
In accordance with Article 76(8) of UNCLOS Malaysia has on 12 December 2019 made a partial submission to the Commission on the Limits of the Continental Shelf (CLCS) regarding its continental shelf in the northern part of the South China Sea. According to Malaysia (Ex Summary, paras. 1.2-1.4), this partial submission concerns the remaining portion of the Malaysian continental shelf in the South China Sea not covered by the 2009 Joint Submission by Malaysia and Viet Nam ‘in the southern part of the South China Sea’.
China has submitted a Communication dated 12 December 2019 which requests the CLCS to not consider the Malaysian Submission due to the existence of a land or maritime dispute (Article 5(a) of Annex I of the Rules of Procedure of the CLCS). Malaysia rejects the existence of any dispute (Ex Summary, para. 4.1).
For more information see here, Executive Summary, Note dated 12 December 2019 from the Permanent Mission of Malaysia and the Communication dated 12 December 2019 (China).
The Government of Iceland (Minister for the Environment and Natural Resources) has issued a regulation tightening fuel requirements for ships, which effectively bans the use of heavy fuel oil in the territorial sea of Iceland. The change is brought about by an amendment to Iceland’s regulation on sulphur content of certain liquid fuels (reglugerð nr. 124/2015). The permissible sulphur content of marine fuels used in the territorial sea and internal waters of Iceland is lowered from 3.5% down to 0.1%. In addition, the permissible sulphur content of marine fuels is lowered down to 0.5% within the Icelandic Pollution Prevention Zone outside of the territorial sea. More information here.
Turkey and Libya have signed (27 November 2019) a Memorandum of Understanding (MoU) on the delimitation of the maritime jurisdiction areas in the Mediterranean.
The MFA of Greece considered (28 November 2019) that “the signing by Turkey and Libya of a memorandum of understanding cannot violate the sovereign rights of third countries” and that “such an action would be a flagrant violation of the International Law of the Sea and would produce no legal effect”. The Minister also noted that “between the two countries there is the large geographical mass of Crete”.
In response, the MFA of Turkey stated (1 December 2019) that “islands cannot have a cut-off effect on the coastal projection of Turkey” and that “the islands which lie on the wrong side of the median line between two mainlands cannot create maritime jurisdiction areas beyond their territorial waters and that the length and direction of the coasts should be taken into account in delineating maritime jurisdiction areas”.
Turkey had submitted earlier in the month (13 November 2019) to the UN a list of geographical coordinates, concerning the outer limits of Turkey’s continental shelf in the Eastern Mediterranean Sea, where Turkey exercises ipso facto and ab initio exclusive sovereign rights and jurisdiction stemming from international law (A/74/550).
The President of the Intergovernmental Conference (IGC) on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction has released an advanced version of the revised text, entitled, Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 27 November 2019. This was requested at the closing of the third session and aims “to enable delegations to take stock and to facilitate further progress in the negotiations at the fourth session of the Conference”. The fourth session will take place in 2020.
As previously reported, the International Tribunal for the Law of the Sea (ITLOS) in its Order of 25 May 2019 of Case No. 26, Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures, prescribed:
“The Russian Federation shall immediately release the Ukrainian naval vessels Berdyansk, Nikopol and Yani Kapu, and return them to the custody of Ukraine” (para. 124(1)(a)).
On 18 November 2019 the Ukrainian naval vessels “Nikopol”, “Berdyansk” and “Yani Kapu” were returned by Russia to Ukrainian custody.
For further information see the press releases published by the Ministry of Foreign Affairs of Ukraine and Russia respectively. The Russian press release makes no reference to the ITLOS Order of 25 May 2019. Russia’s previous submission of an initial report to ITLOS (prescribed in Order of 25 May 2019, para. 124(2)), reaffirmed “the stance of the Russian Federation that the procedures for settling arguments under the UN Convention of the Sea are not applicable in this case”.
On the 30 October 2019, three maritime delimitation agreements concerning the continental shelf beyond 200 nautical miles in the southern part of the “Banana Hole” (North Atlantic) were signed, between Norway and Iceland, Norway and Denmark/The Faroe Islands and Iceland and Denmark/The Faroe Islands respectively. The Delimitation Agreements will enter into force when both parties to the respective Agreements have ratified the Agreement.
For further information see the Norwegian Ministry of Foreign Affairs and Danish Ministry of Foreign Affairs (Danish). While the text of the Agreements is not yet published, it is stated by Norway to be in line with the previous 2006 Agreed Minutes where authors may also find a (preliminary and illustrative) 2006 map.
On the 21 October 2019, during the Torremolinos Ministerial Conference on Fishing Vessel Safety and Illegal, Unreported and Unregulated (IUU) Fishing, forty-eight states signed the Torremolinos Declaration. The Torremolinos Declaration expresses their determination to take action to ensure the entry-into-force criteria of the 2012 Cape Town Agreement on fishing vessel safety are met by the target date of 11 October 2022. The Declaration is open for signature until 21 October 2020.
On the 21 October 2019 the accessions of the Cook Islands and Sao Tome and Principe to the 2012 Cape Town Agreement brings the total contracting parties to 13 states (not yet in force).
On the 23 October 2019 the Ministerial Conference adopted 2 resolutions, whereby Ministerial Conference Resolution 1 adopted the Torremolinos Statement on the Cape Town Agreement of 2012, relating to fishing vessel safety, and combating illegal, unreported and unregulated (IUU) fishing. This encourages states to sign the Torremolinos Declaration and become party to the 2012 Cape Town Agreement and and the 1995 STCW-F Convention.
The Government of India (Directorate General of Shipping, Mumbai) has issued an Order on the prohibition of use of single use plastics on board ships. This ban is applicable to all Indian ships and to foreign ships in port or within Indian waters. The enforcement shall be undertaken on the basis of flag and port state capacity surveys, inspections and audits.
Surveyors carrying out port state inspection of foreign flag vessels are expected to ensure that single use plastics are not in use and are kept locked in a store during their stay in Indian ports and on their passage through the territorial waters of India. A foreign ship intending to enter an Indian port is required to make a log entry identifying “Single Use Plastic Items” on board the ship. No single use plastic items are to be discharged to port reception facilities at an Indian port. The Order further clarifies that no detention of foreign ships is to be enforced.
DGS Order No. 05 (16 October 2019) is available here.
On 24 September 2019 the State of Palestine deposited a second Declaration of the State of Palestine regarding the maritime boundaries of the State of Palestine in accordance with the United Nations Convention of the Law of the Sea. In addition to repeating the provisions of the 2015 Declaration, the 2019 declaration includes geographical coordinates and an illustrative map which define the baselines and limits of the Palestinian claim:
On the 8 October 2019 the Foreign Minister of the State of Palestine also deposited a “legal file on the maritime borders of Palestine” with the Secretary General of the Arab League, including the map and a request for circulation.
The United Nations International Law Commission (ILC) has decided to include the topic “sea-level rise in relation to international law” in its programme of work and established a Study Group. The Study Group will focus on the subject of sea-level rise in relation to the law of the sea. The ILC expects to receive, by 31 December 2019, examples from States of their practice that could be relevant (even if indirectly) to sea-level rise or other changes in circumstances of a similar nature. Such practice could, for example, relate to baselines and where applicable archipelagic baselines, closing lines, low-tide elevations, islands, artificial islands, land reclamation and other coastal fortification measures, limits of maritime zones, delimitation of maritime boundaries, and any other issues relevant to the subject. More information is available here.
The UN Commission on the Limits of the Continental Shelf (CLCS) has approved and endorsed a joint claim from the Federated States of Micronesia, Papua New Guinea, and the Solomon Islands. The joint claim over 600,000 square kilometers of additional seabed, on what is known as the Ontong Java Plateau, was lodged in 2009. More information is available here and here.
Tuvaijuittuq is the first Marine Protected Area to be designated by ministerial order under the Oceans Act for interim protection. Under the order, no new or additional human activities will be allowed to occur in the area for up to five years, with the following exceptions: the exercise of Inuit rights respecting wildlife harvesting as provided for under the Nunavut Agreement; marine scientific research consistent with the conservation objectives of the MPA; safety, security and emergency activities; certain activities carried out by a foreign national, entity, ship or state. The objective of this MPA is to contribute to the conservation, protection and understanding of the natural diversity, productivity and dynamism of the High Arctic sea ice ecosystem. This MPA encompasses an area of 319 411 km2. More information is available here.
The Bailiwick of Guernsey’s territorial seas shall increase in size on 23 July 2019. The current limit of the Bailiwick’s territorial seas is 3 nautical miles (nm) from the baselines. The new limit will be 12 nm. The territorial sea would extend to less than 12 nm wherever the distance between the baselines of the Bailiwick and the baselines of another party (France or Jersey) is less than 24 nm. Fishing access in the waters around the Bailiwick, from 0 to 12 nautical miles, will remain unchanged on the date of extension. The Bailiwick fisheries management regime will also remain the same as it was before extension until any new regime is subsequently agreed. More information is available here.
The President of the Intergovernmental Conference (IGC) on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction has released an advanced version of the text, entitled, Draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 25 June 2019. This was produced in response to a request during the second session of the IGC. Its aim is “to facilitate further progress in the negotiations”.
For the draft text, see here.
The International Court of Justice (ICJ), was seised of a dispute between Guatemala and Belize by way of a special agreement. In 2008, the two States concluded an agreement to submit Guatemala’s territorial, insular and maritime claim to the International Court of Justice, which was subsequently amended by a protocol concluded in 2015. The Parties now request the Court to determine in accordance with applicable rules of international law as specified in Article 38(1) of the Statute of the Court any and all legal claims of Guatemala against Belize to land and insular territories and to any maritime areas pertaining to these territories, to declare the rights therein of both Parties, and to determine the boundaries between their respective territories and areas.
More information on the case and the referenda that led to it can be found in the ICJ press release, at the Belize Referendum Commission website and in a presentation held by the Ministry of Foreign Affairs of Guatemala (in Spanish).
In accordance with Article 76(8) of UNCLOS, Canada has on 23 May 2019 made a partial submission to the Commission on the Limits of the Continental Shelf (CLCS) regarding its continental shelf in the Arctic Ocean. The submission will be included in the provisional agenda of the fifty-second session of the CLCS.
For further information and an executive summary see here and the press release. This follows the 11 April 2019 partial submission of Indonesia in respect of an area North of Papua (Eauripik Rise) and the 26 March 2019 partial submission of Mauritius concerning the Southern Chagos Archipelago region.
ITLOS: Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures
The International Tribunal for the Law of the Sea (ITLOS) has delivered its Order of 25 May 2019 in respect of Case No. 26, Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures. The Tribunal concluded that prima facie the UNCLOS Annex VII arbitral tribunal would have jurisdiction over the submitted dispute. The Tribunal prescribed various provisional measures under Article 290(5) of UNCLOS.
For an overview see the press release. Two Declarations, three Separate Opinions and one Dissenting Opinion were appended to the Order of 25 May 2019, available here. Ukraine and Russia have both responded through their respective Ministry of Foreign Affairs.
Without prejudice to their legal positions in The Arctic Sunrise Arbitration (Netherlands v. Russia), Russia and The Netherlands have reached a full and final settlement of dispute in respect of the Arctic Sunrise incident of September 2013. The agreement remains confidential, but the Joint Statement of 17 May 2019 nonetheless recognizes an understanding upon the rights and responsibilities of both the coastal state and flag state in the EEZ. This includes recognition of the rights related to peaceful protest. Joint Russian-Dutch research in the Arctic zone of the Russian Federation is also promoted.
The Commission on the Limits of the Continental Shelf (CLCS) has clarified the extent of the continental shelf beyond 200 nautical miles outside Bouvet Island (Bouvetøya). The CLCS recommendation is in line with Norway’s proposal submitted in 2009 and revised in 2015. This means that the Norwegian continental shelf surrounding the island amounts to about 683,730 km2, of which 195,120 km2 is beyond 200 nautical miles. The CLCS recommendation gives Norway a basis for determining the extent of the shelf outside Bouvet Island with binding effect. The Statement by the CLCS Chair, dated 29 March 2019, may be found here.
The ongoing dispute concerning the potential drilling activities of the Turkish drill ship ‘Fatih’ within the Eastern Mediterranean has triggered Cyprus to deposit with the United National Secretary General a list of geographical coordinates of points concerning the northern and north-western outer limits of the exclusive economic zone and the continental shelf.
The maritime zone notification and geographical points were deposited on the 7 May 2019, as per UNCLOS, article 75(2) and article 84(2). Turkey claims the hydrocarbon exploration is within its rights under international law, while Cyprus, Greece and the EU have condemned any drilling by the vessel ‘Fatih’ as a violation of Cypriot rights. The USA refers to the area as ‘claimed’ by Cyprus and likely to raise tensions, while Egypt also raised concerns.
The Governments of Malaysia and of Singapore have entered an agreement to mutually suspend the implementation of their overlapping port limits and apply their port limits in effect prior to 25 October 2018 and 6 December 2018 respectively. They furthermore agreed to not authorise and to suspend all commercial activities in the area and to not anchor government vessels in the area. The agreement became effective on April 8, 2019. According to a statement issued by representatives of both Governments, negotiations for maritime boundary delimitation in the area are expected to commence within one month following implementation of said agreement. That March 2019 joint statement may be found here / here; a more recent joint statement confirming the schedule is available here / here. The relevant Circulars of the Maritime and Port Authority of Singapore are here and here.