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”.
Category Archives: Treaties
Treaties: Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean enters into force
On 25 June 2021, the Agreement to prevent Unregulated High Seas Fisheries in the Central Arctic Ocean enters into force. This is the first multilateral agreement of its kind to take a legally binding, precautionary approach to protect an area from commercial fishing before such fishing has begun. There are currently no commercial fisheries in the Arctic high seas, with most of the region covered by ice year-round. However, with an ever-increasing ice-free area in the summer, commercial fishing may be possible in the foreseeable future. The Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean aims to manage potential fishing in the high seas of this region. More information on this treaty is available here (EU) and here (USA); the text of the treaty may be found here. Previous De Maribus reporting is here.
On 22 April 2021 the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean entered into force (as per Article 22(1)). According to Article 2 “The objective of the present Agreement is to guarantee the full and effective implementation in Latin America and the Caribbean of the rights of access to environmental information, public participation in the environmental decision-making process and access to justice in environmental matters, and the creation and strengthening of capacities and cooperation, contributing to the protection of the right of every person of present and future generations to live in a healthy environment and to sustainable development”. There are currently 12 Contracting Parties.
On 25 March 2021, pursuant to the Statute of the International Tribunal for the Law of the Sea, Article 16, the International Tribunal for the Law of the Sea (ITLOS) has amended the Rules of the Tribunal (2020 Edition), namely Articles 4-7, 11-13, 16, 19, 31, 36, 39, 42, 45, 76 and 136 (entered into force, 25 March 2021). ITLOS/Press 314 confirms the Rules were amended “with a view to rendering them gender inclusive”. Therefore, references to “he” are now preceded by “she or”, and references to “him” or “his” are now preceded by “her or”. Where possible, “he” is replaced by an office title, such as the President (Article 45) or the Registrar (Article 136). ITLOS does not however have competence to amend the references to he/his/him in the Statute (Article 41, amendments).
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.
Pursuant to the Statute of the International Tribunal for the Law of the Sea, Article 16, the International Tribunal for the Law of the Sea (ITLOS) has amended the Rules of the Tribunal (2018 Edition), on the 25 September 2020, namely the addition of Articles 41(7), 74(2), 112(5), 124(3) and 135(1bis) (entered into force, 25 September 2020). In doing so, the Tribunal vests itself with the competence to decide, as an exceptional measure, for public health, security or other compelling reasons, to hold hearings and meetings entirely or in part by video link.
For more information and the text of the new paragraphs see ITLOS Press Release 306.
On 25 June 2020 the International Court of Justice (ICJ) amended the Rules of Court, adding a new Article 59(2) and amending Article 94(2):
1. The hearing in Court shall be public, unless the Court shall decide otherwise, or unless the parties demand that the public be not admitted. Such a decision or demand may concern either the whole or part of the hearing, and may be made at any time.
2. The Court may decide, for health, security or other compelling reasons, to hold a hearing entirely or in part by video link. The parties shall be consulted on the organization of such a hearing.
1. When the Court has completed its deliberations and adopted its judgment, the parties shall be notified of the date on which it will be read.
2. The judgment shall be read at a public sitting of the Court. The Court may decide, for health, security or other compelling reasons, that the judgment shall be read at a sitting of the Court accessible to the parties and the public by video link. The judgment shall become binding on the parties on the day of the reading.
The amendments entered into force 25 June 2020. Thus, the public hearing on the question of the ICJ’s jurisdiction in the case concerning the Arbitral Award of 3 October 1899 (Guyana v. Venezuela), scheduled for 30 June 2020, will be via videoconference. The representatives of Guyana will address the Court by video link and the public may follow via a live webcast. This dispute extends to a law of the sea dispute, as evident in Guyana’s Application instituting proceedings (paras. 53, 55).
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.
The agreement concerning the Shipwrecked Vessel RMS Titanic signed by the United Kingdom (UK) and the United States of America (USA) has entered into force. This treaty was signed in 2003 by the United Kingdom, but was only accepted by the United States of America on 18 November 2019. Among other obligations, the treaty posits that
Each Party shall take the necessary measures, in respect of its nationals and vessels flying its flag, to regulate through a system of project authorizations:
(a) entry into the hull sections of RMS Titanic so that they, other artifacts and any human remains are not disturbed; and
(b) activities aimed at the artifacts from RMS Titanic found outside the hull of the wreck so that all such activities are, to the maximum extent practicable, conducted in accordance with the Rules.
This treaty strengthens the basic level of protection for the wreck afforded by UNESCO since 2012. Lying in international waters, the wreck was previously not protected by explicit legislation. The text of the treaty can be found here. More information is available here.
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.
On the 21 October 2019 the International Court of Justice (ICJ) adopted amendments to Articles 22, 23, 29, 76 and 79 of its Rules of Court (entry into force 21 October 2019). Of particular interest is the amendment to Article 76(1) to “clarify” the Court has the power to revoke or modify provisional measures on its own initiative:
1. At the request of a party or proprio motu, the Court may, at any time before the final judgment in the case, revoke or modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification.
The ICJ may, for example, prescribe provisional measures in a case submitted to it by way of Articles 287 and 290 of UNCLOS. For an example of previous requests on the basis of Article 41 of the ICJ Statute and (former) Article 76 of the Rules of Court see the submissions of both Costa Rica and Nicaragua in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Order of 16 July 2013, Provisional Measures, I.C.J. Reports 2013, p. 230.
For further information see ICJ Press Release No. 2019/42 (21 October 2019).
On 14 November 2018 the Draft Withdrawal Agreement and Outline of the Political Declaration on the Future Relationship were finalised and agreed at the negotiator level. This is now subject to legal verification, whereby the final agreement and declaration are subject to endorsement and adoption, respectively.
Arrangements relating to fishing opportunities during the transition period are found within Article 130. If an agreement on the future EU-UK relationship is not applicable by 31 December 2020, the single EU-UK customs territory forming part of the “backstop solution” (Protocol on Ireland/Northern Ireland, Article 6) will exclude fishery and aquaculture products “unless an agreement on access to waters and fishing opportunities is applicable between the Union and the United Kingdom”. The Withdrawal Agreement and Political Declaration both highlight the commitment to “use their best endeavours to conclude and ratify such an agreement before 1 July 2020”. The Protocol relating to the Sovereign Base Areas in Cyprus preserves EU fisheries law for Sovereign Base Areas (Article 6), while the Protocol on Gibraltar establishes UK-Spain coordinating procedures for fisheries (Article 4).
On the 3 October 2018, the United States, Canada, the Kingdom of Denmark, the European Union, Iceland, Japan, the Republic of Korea, the Kingdom of Norway, the People’s Republic of China, and the Russian Federation signed the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement). The agreement covers approximately 2.8 million square kilometers and will establish and operate a Joint Program of Scientific Research and Monitoring (art. 4). Unregulated fishing in the high seas of the central Arctic Ocean is prohibited for 16 years following entry into force (arts. 3, 11, 13). Sedentary species are not included (art. 1).
Pursuant to the Statute of the International Tribunal for the Law of the Sea, Article 16, the International Tribunal for the Law of the Sea (ITLOS) has amended the Rules of the Tribunal, on the 25 September 2018, namely Articles 60(2) and 61(3). Both provisions have been amended through the addition of:
“If the Tribunal is not sitting, its powers under this article may be exercised by the President of the Tribunal, but without prejudice to any subsequent decision of the Tribunal.”
The amendments immediately entered into force. The rationale for amendment given by the Tribunal was “in the interest of the efficient and cost-effective administration of justice”.
The member states of the informal group “Caspian-five”, composed of Azerbaijan, Iran, Kazakhstan, Russia and Turkmenistan, have signed (12 August 2018) the Convention on the Legal Status of the Caspian Sea. This international treaty replaces previous Soviet-Iranian instruments, namely the Treaty of Friendship between Persia and the Russian Socialist Federal Soviet Republic of February 26, 1921 and the Treaty on trade and navigation of 25 March 1940. With this new treaty, the parties agree that the Caspian Sea is not a lake. Among other issues addressed by the treaty, the Caspian Sea bordering states will now be able to lay pipelines on the seabed without obtaining the approval of all the other coastal states, but rather only the approval from those coastal states whose sector the pipeline should pass through (Article 14). The treaty also features the principle of absence of armed forces not belonging to the parties in the Caspian Sea (Article 3). Six other international legal instruments were also signed by the parties, namely on the fight against terrorism, the fight against organised crime, economic cooperation, transportation, accident prevention, and interaction of border authorities. The text of the agreement may be found here (in Farsi). A statement from the United Nations Secretary-General may be found here.
The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP, also known as the TPP11) was signed by 11 states, 8 March 2018, in Santiago, Chile. The agreement retains the contents of the original Trans-Pacific Partnership (TPP), but includes 20 agreed suspensions, mainly in the area of intellectual property. The annexed Joint Ministerial Statement by CPTPP signatories, “expressed their determination to complete their domestic processes to bring the Agreement into force expeditiously”. Without claiming to be exhaustive, Chapter 20, Environment, is of interest to the law of the sea given its inclusion of ship-source pollution and marine capture fisheries.
Following previous coverage (here), Australia’s Minister for Foreign Affairs and Timor-Leste’s Deputy Minister Assisting the Prime Minister on Boundary Delimitation, signed the Treaty Between Australia and the Democratic Republic of Timor-Leste Establishing Their Maritime Boundaries in the Timor Sea, 6 March 2018, at the United Nations Headquarters. The agreement may be found here.
The Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety, adopted 15 October 2010, entered into force 5 March 2018 with 41 contracting parties. The instrument provides for rules and procedures on liability and redress for damage resulting from transboundary movements of living modified organisms. Article 2(2)(b) defines “damage” to biodiversity.
The 17th Conference of Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flaura (CITES) decided to expand the species of sharks protected by CITES controls, including silky shark (Carcharhinus falciformis), thresher sharks (Alopias spp.) and all nine devil ray species (Mobula spp.) within Appendix II. Listing of devil rays entered into effect on 04 April 2017, while silky and thresher shark listing was subject to a 12 month delay, entering into effect 4 October 2017.
The Marine Environment Protection Committee (MEPC) of the International Maritime Organization (IMO) has agreed, during its 71st session, to an implementation schedule for ships to comply with the IMO Ballast Water Management (BWM) Convention, set to enter into force on 8 September 2017. More information about this agreement may be found here.
The UK Environment Secretary, Michael Gove, has announced the UK shall notify the other Member States of its withdrawal from the London Fisheries Convention on 3 July 2017, triggering a two-year withdrawal period.
For more information see the Department for Environment, Food & Rural Affairs press release and the London Fisheries Convention.
On 21 April 2017 Norway became the first state to deposit its instrument of ratification to the Protocol of 2010 to the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea. There are currently seven other signatories, subject to ratification.
The Government of Norway will host the the First Meeting of the Parties to the PSMA [Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing] and the First Meeting of the Ad Hoc Working Group to be established under Article 21 of the Agreement, from 29 to 31 May 2017 and from 1 to 2 June 2017, respectively, in Oslo. The first Meeting of the Parties will address a variety of aspects of implementation, whilst the Ad Hoc Working Group is to consider the requirements of developing state parties and ‘options for the establishment of funding mechanisms’, as per article 21.
A high-level meeting of signatories to the Djibouti Code of Conduct (DCOC), held in Jeddah, Saudi Arabia, has adopted a revised Code of Conduct, which will be known as the “Jeddah Amendment to the Djibouti Code of Conduct 2017”. The revised code of conduct builds on the earlier Code, which was adopted under the auspices of IMO in 2009. The Jeddah Amendment calls on the signatory States to cooperate to the fullest possible extent to repress transnational organized crime in the maritime domain, maritime terrorism, illegal, unregulated and unreported fishing and other illegal activities at sea. More information on this meeting can be found here.
On the 7th October 2016 Vanuatu and the Solomon Islands concluded 33 years of negotiation by signing a maritime boundary agreement addressing “Temotu Province in Solomon Islands and Torba Province of Vanuatu”. The agreement was signed on Mota Lava Island, Vanuatu (see references ‘Mota Lava Treaty’).
For more information see the press releases by The Solomon Islands Prime Minister’s Press Office and The Pacific Community (SPC). See further the reference to the incorporation of local custom within the delimitation process, here.
The Ballast Water Management Convention was ratified by a sufficient number of states on 8 September 2016, bringing the total gross tonnage to over 35% from the signatory states. This means the convention will enter into force 12 months later, on 8 September 2017. Accession by Finland has triggered the entry into force of this key international measure for environmental protection that aims to stop the spread of potentially invasive aquatic species in ships’ ballast water. More on this here.
A new regulation aimed at protecting seafarers who need to enter enclosed spaces, by requiring ships to carry portable atmosphere testing equipment on board, entered into force on 1 July 2016. The new regulation XI-1/7 Atmosphere testing instrument for enclosed spaces in the International Convention for the Safety of Life at Sea (SOLAS), requires ships to carry an appropriate portable atmosphere testing instrument or instruments, capable, as a minimum, of measuring concentrations of oxygen, flammable gases or vapours, hydrogen sulphide and carbon monoxide, prior to entry into enclosed spaces. More information can be found here.
On the 23 June 2016, Indonesia ratified the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA), having signed on the 22 Nov 2009.
On the 23 June 2016, Saint Vincent and the Grenadines acceded to the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA).
for more information, please see the status of the PSMA.
The 16 June 2016 marked the accession of Azerbaijan to the United Nations Convention on the Law of the Sea (UNCLOS). In accordance with UNCLOS, Article 308(2), the Convention shall enter into force for Azerbaijan on 16 July 2016.
For more information, see here.
The 2009 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA), has reached the required threshold of formal deposits of adherence and will therefore enter into force on 5 June 2016. According to the FAO press release, the following states and regional economic integration organization are parties to the PSMA: Australia, Barbados, Chile, Costa Rica, Cuba, Dominica, European Union – Member Organization, Gabon, Guinea Bissau, Guyana, Iceland, Mauritius, Mozambique, Myanmar, New Zealand, Norway, Oman, Palau, Republic of Korea, Saint Kitts and Nevis, Seychelles, Somalia, South Africa, Sri Lanka, Sudan, Thailand, Tonga, United States of America, Uruguay, and Vanuatu.
For more information, see the FAO press release here.
Unconfirmed reports also suggest Gambia has ratified the PSMA within its internal National Assembly, however, according to the FAO website, it has not yet formally deposited an instrument of adherence.
During the month of February, Barbados (2 February 2016) and South Africa (16 February 2016) acceded to the FAO Port State Measures Agreement (PSMA). The PSMA will enter into force 30 days after the 25th ratification, acceptance, approval or accession.
The current status of the PSMA can be found here.
After several rounds of negotiations in the past two years, Taiwan and the Philippines concluded the Agreement Concerning the Facilitation of Cooperation on Law Enforcement in Fisheries Matters on November 5, 2015. The agreement contains seven articles and includes three important points of consensus that have already been implemented—avoiding the use of violence or unnecessary force, establishment of an emergency notification system, and establishment of a prompt release mechanism. More information can be found on the website of the Ministry of Foreign Affairs of the Republic of China (Taiwan): here and here.
The Nairobi International Convention on the Removal of Wrecks, adopted on the 18th May 2007, entered into force on Tuesday 14th April 2015. According to the IMO the 20 current State parties represent 32.9% of the world’s tonnage.
After twenty years of negotiations, the Agreement between the Government of the Republic of the Philippines and the Government of the Republic Indonesia concerning the delimitation of the Exclusive Economic Zone boundary has been successfully signed. The Agreement was met with support by the European Union. Further information on this achievement is provided by the Philippines Government here.
IMO has just announced that the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 2002, which substantially raises the limits of liability for the death of, or personal injury to, a passenger on a ship, enters into force on 23 April 2014. More information here.