The International Seabed Authority (ISA) is hiring a legal officer (regulatory affairs). This position is based in the Office of Legal Affairs (OLA) in Kingston, Jamaica. The appointed person will be responsible, inter alia, to serve as a lead officer in the development of regulatory instruments for the conduct of deep-sea mining activities in the international seabed Area, including the Mining Code and associated standards and guidelines. Closing date for applicants is 31 July 2024. This job opening can be found here.
China: Coast Guard Order #3 enters into force
China Coast Guard CCG Order #3 issued 15 May 2024 entitled Provisions on Administrative Enforcement Procedures for Coast Guard Agencies 2024 entered into force on 15 June 2024. The order sets the conditions for exercising detention and review powers to Coast Guard commanders (see below unofficial machine-generated translation from the original in Chinese) [emphasis added]:
Chapter 14
Handling of Foreign-Related Administrative Cases
Article 257
Foreigners suspected of violating entry and exit control who meet any of the following circumstances and whose suspicion cannot be ruled out after on-the-spot questioning or continued questioning and who need further investigation may be detained for investigation upon approval by the head of the maritime police agency:
(1) Those suspected of illegally entering or leaving the country;
(2) Suspected of assisting others to illegally enter or exit the country;
(3) Those suspected of illegal residence or illegal employment;
(4) Suspected of endangering national security and interests, disrupting social public order, or engaging in other illegal or criminal activities.
When implementing detention and review, the detention and review decision letter shall be produced and questioning shall be conducted within twenty-four hours.
The detention and review period shall not exceed 30 days. If the case is complicated, it may be extended to 60 days with the approval of the higher-level maritime police agency. For those whose nationality and identity are unknown, the detention and review period shall be calculated from the date when their nationality and identity are clarified. If the provincial maritime police bureau makes a detention and review decision and needs to extend the detention and review period, it can be approved by the maritime police agency that made the decision.
In accordance with the Coast Guard Law of the People’s Republic of China, this order is to apply in “sea areas under the jurisdiction of the People’s Republic of China” (Article 3) and may be oriented towards “major maritime rights protection” (Article 15); more specifically, Article 17 provides the legal basis for the exercise of detention powers being now defined in CCG Order #3. Further to that, Article 22 provides the legal basis for use of force by coast guard vessels for acts that infringe on China’s national sovereignty or jurisdiction.
An English translation of the 2021 Coast Guard Law of the People’s Republic of China may be found here; the original version can be retrieved from FAOLEX; CCG Order # 3 may be found here (in Chinese).
Filed under State Practice
Courses: IPDM Law of the Sea Summer School 2024
IPDM – Instituto Português de Direito do Mar shall host its second edition of the Law of the Sea Summer School on 1-12 July 2024, in Cascais (Portugal). For more information on the programme, see here.
Filed under Courses
CLCS: Partial Submission by the Philippines (West Palawan Region)
On 14 June 2024, in accordance with Article 76(8) of UNCLOS, the Philippines submitted to the Commission on the Limits of the Continental Shelf (CLCS) information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured in the West Palawan Region. Consistent with UNCLOS, “[t]his Submission is made without prejudice to the right of the Philippines to make other Submissions on other areas at a future time” (Executive Summary (2024) p. 1).
This follows the seperate April 2009 submission of the Philippines in the Benham Rise region, for which recommendations (April 2012) and subsequent final and binding outer limits of the continental shelf were established based on said recommendations (UNCLOS, Article 76(8); ‘Benham Rise’ since renamed ‘Philippine Rise’ in May 2017).
At the time of writing, communications received and published with regard to this partial submission in the West Palawan Region include China (18 June 2024). Further communications may be foreseen given that the Executive Summary (2024) provides:
The Philippines notes that the 2009 joint submission of Malaysia and Viet Nam, the 2009 submission of Viet Nam in the northern area and the 2019 submission of Malaysia that were submitted to the CLCS cover areas that may overlap with the area of this Submission.
Executive Summary (2024) p. 4
These earlier submissions were based on Article 76 of UNCLOS and are generally consistent with the principles affirmed in the 2016 Award on the Merits in the South China Sea Arbitration. The Philippines manifests its willingness to discuss with the relevant States the delimitation of the maritime boundaries.
The delineation of the continental shelf beyond 200 M is without prejudice to future delimitation with the limits of the territorial sea areas of individual high tide features in the South China Sea.
For more information see the statement of the Philippines Department of Foreign Affairs.
Filed under International Organizations, State Practice
Courses: Online Training School on Sustainable Marine Governance in the Mediterranean
The United Nations Environmental Programme / Mediterranean Action Plan (UNEP/MAP) and the Mediterranean Programme for International Environmental Law And Negotiation (MPIELAN) are hosting a week-long online training school. The Training School will be held from 7 to 12 October 2024 and the working language will be English. This course was designed and developed by and organized in cooperation with the European Public Law Organization (EPLO). It provides an integrated platform for knowledge exchange, discussion and capacity building in the field of sustainable environmental governance within the framework of the Barcelona Convention system and its evolving inter-linkages with relevant international treaty regimes and processes, focusing on the unique challenges and opportunities in the Mediterranean region. Application deadline is 26 August 2024; see further here.
English Court of Appeal: judgment on the MV Ever Given salvage claim dispute rendered
The English Court of Appeal rendered judgment in the dispute between salvors and the shipowners as to whether a salvage contract on commercial terms had been made in connection with the re-floating of the “Ever Given” in the Suez Canal in March 2021 (SMIT Salvage & Ors v. Luster Maritime SA & Anr (The Ever Given) [2024] EWCA Civ 260).
The appellants, the owners of the ‘Ever Given’, contended that such a contract was concluded, leaving other contractual terms to be agreed at a later stage (although they never were), and that its effect is to preclude a claim for salvage under the International Convention on Salvage 1989 or at common law. The salvors said that no such contract was concluded and that they are therefore able to bring their claim for salvage services rendered, with the quantum of their claim to be determined by the Admiralty Court. The Admiralty judge held that no such contract was concluded. He did so on the ground that although what the parties agreed was capable of amounting to a contract as to the remuneration payable to the salvors for any services which they provided, the parties did not on an objective view intend that agreement to be legally binding until the remaining terms (including as to what services the salvors would provide) were also agreed. See Admiralty Court judgment, dated 30 March 2023, here.
The English Court of Appeal dismissed the appeal of the owners highlighting that several issues had not been agreed, including “such basic matters as the nature of the services which SMIT would provide, the standard of care which it would be required to exercise, and the payment terms, and left it for future agreement a detailed contract on the Wreckhire 2010 form”. The court found that the owners did not demonstrate an unequivocal intention to be legally bound, based on the parties’ exchanges; that the ultimatums do not undermine the analysis that no binding contract was formed; and that although the urgency to finalize the contract diminished after the remuneration terms were agreed upon, SMIT’s strong position and likelihood of a salvage award defused the urgency, indicating no prior binding agreement on remuneration terms alone. As the court agreed with the Admiralty judge’s conclusion that no binding contract was formed, it found it unnecessary to consider the standard of review on appeal. See Court of Appeal judgment, dated 19 March 2024, here.
Filed under Jurisprudence
ITLOS: The “Zheng He” Case, Provisional Measures Request
As previously suggested, on 7 June 2024 the International Tribunal for the Law of the Sea (ITLOS) received a request from Luxembourg for the prescription of provisional measures in The “Zheng He” Case (Luxembourg v. Mexico) (UNCLOS, Article 290(1)). According to the Request for Provisional Measures of Luxembourg:
79. In accordance with article 17, paragraph 2, of the Statute of the Tribunal, Luxembourg appoints Professor Marcelo Gustavo Kohen to sit as a member of the Tribunal.
80. For the reasons set out above, Luxembourg respectfully requests the Tribunal to prescribe the following provisional measures:
1. In order to safeguard the basic rights and freedoms of the crew:Request for Provisional Measures of Luxembourg, paras 79-80 (80 as translated in ITLOS/Press 352)
- Order Mexico to continue to ensure the freedom of circulation of the crew members off board the vessel and their access to health-care establishments, places of worship and recreational facilities;
- Order Mexico to continue to ensure that there will be no impediments to the renewal of the crew and the necessary rotations;
- Order Mexico to continue to ensure that the crew will not be compelled by law enforcement agencies to disembark from the vessel nor be prevented from reembarking the vessel;
2. In order to safeguard the rights of Luxembourg as the flag State:- Order Mexico to allow Luxembourg to effectively exercise its jurisdiction and control in administrative, technical and social matters over the vessel, and to enable any measures necessary for the preventive and corrective maintenance of the Zheng He in order to ensure its compliance with the national, European and international standards applicable to vessels flying the flag of Luxembourg;
- Prohibit Mexico from directly or indirectly exploiting the vessel Zheng He;
- Prohibit Mexico from taking any measures to create or transfer real rights to the vessel and from changing the flag of the vessel Zheng He;
3. In order to avoid aggravating or extending the dispute:- Prohibit Mexico from collecting the customs fine of 1,616,462,343.52 Mexican pesos imposed on European Dredging Company SA;
- Prohibit Mexico from immobilizing, confiscating and expropriating, in any proceeding whatsoever, vessels related to the vessel Zheng He flying the flag of Luxembourg, whether they be the property of European Dredging Company SA, its parent company SOFIDRA or any other subsidiary of SOFIDRA;
- Prohibit Mexico from initiating new national proceedings or new actions against the Zheng He, European Dredging Company SA, its parent company SOFIDRA or any other subsidiary of SOFIDRA;
4. In order to ensure equality of the parties in the proceedings before the Tribunal:- Authorize the agents of Luxembourg to conduct on the territory of Mexico, without restriction, any investigations in connection with the present proceedings, in particular to ascertain the condition of the vessel Zheng He and to collect any relevant evidence;
- Transmit to Luxembourg, at its request and after verification by the Tribunal, the information and documents to which Luxembourg was unable to gain access relating to the non-contentious and contentious proceedings under Mexican law concerning the Zheng He, including forthwith:
- The identification of the different quays in the Port of Tampico, with their official and/or common names, and the GPS coordinates of the endpoints of each quay;
- The regulatory texts of Mexico in force on 21 October 2023 that were officially published relating to the tax and customs regime of each quay in the Port of Tampico.
One may note that the Request for Provisional Measures by Luxembourg refers to a request being made, “pending settlement of the merits of the dispute, whether resulting from a judgment of the Tribunal or an amicable agreement reached during the proceedings” (para 8).
Filed under Jurisprudence, State Practice
Courses: IOI Ocean Governance Training Programme
The International Ocean Institute – Southern Africa (IOI-SA) is hosting its annual 4-week Ocean Governance Training Programme from 4-29 November 2024 in Cape Town (South Africa). The course focuses on Africa and emphasises the benefits of harmonising ocean policies to promote a shared, integrated and common approach to ocean management. Deadline for registration is 28 June 2024. More information is available here.
Filed under Courses
Call for papers: Future Trajectories for the Law of the Sea
The Norwegian Centre for the Law of the Sea (NCLOS) will host the NCLOS Annual Conference 2024, themed, Future Trajectories for the Law of the Sea, 5-7 November 2024 in Tromsø, Norway. Abstracts are welcome until 30 June 2024. For more information see here.
Netherlands: 2024 Amendments of the Ocean Cleanup Agreement
On 8 June 2018, The Netherlands and Ocean Cleanup signed an Agreement between the State of the Netherlands and The Ocean Cleanup concerning the deployment of systems designed to clean up plastic floating in the upper surface layer of the high seas to facilitate and support the activities of ‘The Ocean Cleanup’ on the high seas, whilst also fulfilling the duty of care of the Netherlands under UNCLOS at the State of nationality of ‘The Ocean Cleanup’ (a dutch entity) concerning its activities on the high seas. Consistent with Article 7, this Agreement was extended in 2023 following an evaluation, with the intention of the Parties to seek amending and updating the Agreement. This update sought to address developments in how the activities of the Ocean Cleanup occur, as well as developments in the international regulatory field, notably the adoption of the BBNJ Agreement and updated safety standards (Ministry of Infrastructure and Water Management Decision Note (2024)).
On 29 May 2024, The Netherlands and Ocean Cleanup signed an Agreement to amend and update the Agreement between the State of the Netherlands and The Ocean Cleanup concerning the deployment of systems designed to clean up plastic floating in the upper surface layer of the high seas to “extend the Agreement as well as to update it to take into account the latest insights and developments”. The amended agreement contains numerous elements of interest to the law of the sea, including the promotion of “national and international cooperative measures to reduce plastic pollution in the marine environment, including existing plastic pollution” (UNEP Resolution 5/14 (2022), para 3(c); 2024 Amendments – Explanatory notes, p. 2).
To highlight here, one may note the existence of State practice reflecting relevant “best practice” for implementing the environmental impact assessment pillar (Part IV) of the BBNJ Agreement (not formally provisional application under BBNJ Agreement, Article 69). The wording of Article 3.1a of the Agreement “has been based as far as possible on the wording of the recently signed BBNJ Agreement” (2024 Amendments – Explanatory notes, p. 3).
Article 1.2 Interests
2018 Agreement between Netherlands and Ocean Cleanup (as amended, 29 May 2024) [amendments in bold]
The Parties will take appropriate precautionary measures to secure the safety of shipping, the protection of the marine environment and marine biodiversity and other uses of the high seas.
[…]
Article 3.1a Environmental impact assessment
The Minister may carry out an evaluation of the screening or the environmental impact assessment or have it carried out by an independent third party. If the conclusions of the third party differ from the screening or assessment by The Ocean Cleanup, the parties may consult with each other about this.
The Ocean Cleanup shall conduct a screening for any significant change made to the design of the system or to the manner in which the system operates, when it is expected that this significant change may have more than a minor or transitory effect on the marine environment or when the effect of this significant change are unknown or poorly understood, to determine whether an environmental impact assessment is required.
If reasonable grounds are found for believing that the significant change referred to in paragraph 1 may cause substantial pollution of or significant and harmful changes to the marine environment, The Ocean Cleanup shall conduct an environmental impact assessment on the basis of relevant national or international legislation. This involves identifying, as much as reasonably possible, the possible effects on the ecosystem and the costs and benefits of the cleanup activities on the marine environment.
The Ocean Cleanup will inform the Minister in good time that the screening or environmental impact assessment, as the case may be, is being carried out and will submit the results to the Minister as soon as reasonably possible.
Filed under Non-State Actors, State Practice
ITLOS: The “Zheng He” Case (Luxembourg v. Mexico)
On 3 June 2024, Luxembourg instituted proceedings before the International Tribunal for the Law of the Sea (ITLOS) against Mexico in a dispute regarding the detention of the “Zheng He”, a dredger flying the flag of Luxembourg. Both States have exercised their rights in selecting ITLOS in respect of their choice of procedure for the settlement of disputes concerning the interpretation or application of UNCLOS (UNCLOS, Article 287(1); Mexico (1983): 1. ITLOS, 2. ICJ, 3. Annex VIII Tribunals; Luxembourg (2024) 1. ITLOS).
According to the Application submitted by Luxembourg:
2. The dispute concerns, among other things, the violation by Mexico of the provisions of the Convention relating to the freedom and right of navigation and/or the uses of the sea for other internationally lawful purposes referred to in article 58 of the Convention.
Application submitted by Luxembourg, paras 2 & 16 [See original in French]
[…]
16. For these reasons, Luxembourg asks the Tribunal to rule that:
a. Mexico has violated the provisions of Articles 2, 17, 18, 19, 21, 58, 87, 90, 92, 131 and 300 of the Convention. Consequently, Mexico’s international responsibility is engaged.
[…]
According to the Application submitted by Luxembourg, Luxembourg will also seek to exercise other rights available under UNCLOS:
5. As the Tribunal does not include any members of its nationality, in accordance with the provisions of article 17(3) of the Statute [UNCLOS, Annex VI], Luxembourg intends to designate as soon as possible a person of its choice to sit as a member of the Tribunal and to hear the present case.
Application submitted by Luxembourg, paras 5 & 17 [See original in French]
[…]
17. On or about the date of the filing of this Application instituting proceedings before the International Tribunal for the Law of the Sea, Luxembourg will institute a request for the prescription of provisional measures in accordance with article 290, paragraph 1, of the Convention.
For more information see The “Zheng He” Case (Luxembourg v. Mexico).
Filed under Jurisprudence, State Practice
Summer School: Kadir Has Law of the Sea
Kadir Has University shall host an International Law of the Sea Summer Academy, 22 July-8 August 2024, Istanbul (Türkiye). For more information see here.
Filed under Courses
Vacancy: Registrar of ITLOS
The International Tribunal for the Law of the Sea (ITLOS) is currently advertising a vacancy for the Registrar. Expressions of interest should be sent by e-mail to the President of the Tribunal by 21 August 2024. For more information see the announcement and Rules of the Tribunal.
Filed under Vacancies
Summer School: EULoS 2024
The tenth edition of the EULoS Summer School, European Union and the Law of the Sea, will be held 26 August – 6 September 2024, in Genoa, Italy. Applications are welcome on a rolling basis. For more information see the EULoS website.
Filed under Courses
ITLOS: Advisory Opinion Delivered in Request Submitted by COSIS
On 21 May 2024, the International Tribunal for the Law of the Sea (ITLOS) delivered its Advisory Opinion on the Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (Request for Advisory Opinion submitted to the Tribunal). The operative clause provides:
For these reasons,
Advisory Opinion on Request of COSIS, para 441.
THE TRIBUNAL,
(1) Unanimously
Decides that it has jurisdiction to give the advisory opinion requested by the Commission.
(2) Unanimously
Decides to respond to the request for an advisory opinion submitted by the Commission.
(3) Unanimously
Replies to Question (a) as follows:
(a) Anthropogenic GHG emissions into the atmosphere constitute pollution of the marine environment within the meaning of article 1, paragraph 1, subparagraph 4, of the Convention.
(b) Under article 194, paragraph 1, of the Convention, States Parties to the Convention have the specific obligations to take all necessary measures to prevent, reduce and control marine pollution from anthropogenic GHG emissions and to endeavour to harmonize their policies in this connection. Such measures should be determined objectively, taking into account, inter alia, the best available science and relevant international rules and standards contained in climate change treaties such as the UNFCCC and the Paris Agreement, in particular the global temperature goal of limiting the temperature increase to 1.5°C above pre-industrial levels and the timeline for emission pathways to achieve that goal. The scope and content of necessary measures may vary in accordance with the means available to States Parties and their capabilities. The necessary measures include, in particular, those to reduce GHG emissions.
(c) The obligation under article 194, paragraph 1, of the Convention to take all necessary measures to prevent, reduce and control marine pollution from anthropogenic GHG emissions is one of due diligence. The standard of due diligence is stringent, given the high risks of serious and irreversible harm to the marine environment from such emissions. However, the implementation of the obligation of due diligence may vary according to States’ capabilities and available resources.
(d) Under article 194, paragraph 2, of the Convention, States Parties have the specific obligation to take all measures necessary to ensure that anthropogenic GHG emissions under their jurisdiction or control do not cause damage by pollution to other States and their environment, and that pollution from such emissions under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights. This obligation applies to a transboundary setting and is a particular obligation in addition to the obligation under article 194, paragraph 1. It is also an obligation of due diligence. The standard of due diligence under article 194, paragraph 2, can be even more stringent than that under article 194, paragraph 1, because of the nature of transboundary pollution.
(e) In terms of specific sources of pollution, marine pollution from anthropogenic GHG emissions can be characterized as pollution from land-based sources, pollution from vessels, or pollution from or through the atmosphere.
(f) Under articles 207 and 212 of the Convention, States Parties have the specific obligation to adopt laws and regulations to prevent, reduce and control marine pollution from GHG emissions from land-based sources and from or through the atmosphere, respectively, taking into account internationally agreed rules, standards and recommended practices and procedures contained, inter alia, in climate change treaties such as the UNFCCC and the Paris Agreement. To this effect, States Parties have the specific obligations to take other necessary measures and, acting especially through competent international organizations or diplomatic conference, to endeavour to establish global and regional rules, standards and recommended practices and procedures.
(g) Under article 211 of the Convention, States Parties have the specific obligation to adopt laws and regulations to prevent, reduce and control marine pollution from GHG emissions from vessels flying their flag or of their registry, which must at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference.
(h) Under articles 213 and 222 of the Convention, States Parties have the specific obligation to enforce their national laws and regulations and to adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from anthropogenic GHG emissions from land-based sources and from or through the atmosphere, respectively.
(i) Under article 217 of the Convention, States Parties have the specific obligation to ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards established through the competent international organization or general diplomatic conference and with their laws and regulations for the prevention, reduction and control of marine pollution from GHG emissions from vessels. To this end, they shall adopt laws and regulations and take other measures necessary for their implementation.
(j) Articles 197, 200 and 201, read together with articles 194 and 192 of the Convention, impose specific obligations on States Parties to cooperate, directly or through competent international organizations, continuously, meaningfully and in good faith, in order to prevent, reduce and control marine pollution from anthropogenic GHG emissions. Under article 197, States Parties have the specific obligation to cooperate in formulating and elaborating rules, standards and recommended practices and procedures, consistent with the Convention and based on available scientific knowledge, to counter marine pollution from anthropogenic GHG emissions. Under article 200, States Parties have the specific obligations to cooperate to promote studies, undertake scientific research and encourage the exchange of information and data on marine pollution from anthropogenic GHG emissions, its pathways, risks and remedies, including mitigation and adaptation measures. Under article 201, States Parties have the specific obligation to establish appropriate scientific criteria on the basis of which rules, standards and recommended practices and procedures are to be formulated and elaborated to counter marine pollution from anthropogenic GHG emissions.
(k) Under article 202 of the Convention, States Parties have the specific obligation to assist developing States, in particular vulnerable developing States, in their efforts to address marine pollution from anthropogenic GHG emissions. This article provides for the obligation of appropriate assistance, directly or through competent international organizations, in terms of capacity-building, scientific expertise, technology transfer and other matters. Article 203 reinforces the support to developing States, in particular those vulnerable to the adverse effects of climate change, by granting them preferential treatment in funding, technical assistance and pertinent specialized services from international organizations.
(l) Articles 204, 205 and 206 of the Convention impose on States Parties specific obligations of monitoring, publishing the reports thereof and conducting environmental impact assessments as a means to address marine pollution from anthropogenic GHG emissions. Under article 204, paragraph 1, States Parties have the specific obligation to endeavour to observe, measure, evaluate and analyse the risks or effects of pollution of the marine environment from anthropogenic GHG emissions. Under article 204, paragraph 2, States Parties have the specific obligation to keep under continuing surveillance the effects of activities they have permitted, or in which they are engaged, in order to determine whether such activities are likely to pollute the marine environment through anthropogenic GHG emissions. Under article 205, States Parties have the specific obligation to publish the results obtained from monitoring the risks or effects of pollution from such emissions or to communicate them to the competent international organizations for their dissemination. Under article 206, States Parties have the specific obligation to conduct environmental impact assessments. Any planned activity, either public or private, which may cause substantial pollution to the marine environment or significant and harmful changes thereto through anthropogenic GHG emissions, including cumulative effects, shall be subjected to an environmental impact assessment. Such assessment shall be conducted by the State Party under whose jurisdiction or control the planned activity will be undertaken with a view to mitigating and adapting to the adverse effects of such emissions on the marine environment. The result of such assessment shall be reported in accordance with article 205 of the Convention.
(4) Unanimously
Replies to Question (b) as follows:
(a) The Tribunal’s response to Question (a) is relevant to its response to Question (b). Subparagraphs (j), (k) and (l) of operative paragraph (3) are of particular relevance in this regard.
(b) The obligation under article 192 of the Convention to protect and preserve the marine environment has a broad scope, encompassing any type of harm or threat to the marine environment. Under this provision, States Parties have the specific obligation to protect and preserve the marine environment from climate change impacts and ocean acidification. Where the marine environment has been degraded, this obligation may call for measures to restore marine habitats and ecosystems. Article 192 of the Convention requires States Parties to anticipate risks relating to climate change impacts and ocean acidification, depending on the circumstances.
(c) This obligation is one of due diligence. The standard of due diligence is stringent, given the high risks of serious and irreversible harm to the marine environment from climate change impacts and ocean acidification.
(d) Under article 194, paragraph 5, of the Convention, States Parties have the specific obligation to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life from climate change impacts and ocean acidification.
(e) Under articles 61 and 119 of the Convention, States Parties have the specific obligations to take measures necessary to conserve the living marine resources threatened by climate change impacts and ocean acidification. In taking such measures, States Parties shall take into account, inter alia, the best available science and relevant environmental and economic factors. This obligation requires the application of the precautionary approach and an ecosystem approach.
(f) The obligation to seek to agree under article 63, paragraph 1, and the obligation to cooperate under article 64, paragraph 1, of the Convention, require States Parties, inter alia, to consult with one another in good faith with a view to adopting effective measures necessary to coordinate and ensure the conservation and development of shared stocks. The necessary measures on which consultations are required must take into account the impacts of climate change and ocean acidification on living marine resources. Under article 118 of the Convention, States Parties have the specific obligation to cooperate in taking measures necessary for the conservation of living marine resources in the high seas that are threatened by climate change impacts and ocean acidification.
(g) Under article 196 of the Convention, States Parties have the specific obligation to take appropriate measures to prevent, reduce and control pollution from the introduction of non-indigenous species due to the effects of climate change and ocean acidification which may cause significant and harmful changes to the marine environment. This obligation requires the application of the precautionary approach.
Judges Jesus, Pawlak, Kulyk, Kittichaisaree and Infante Caffi availed themselves of the right to attach individual Declarations to the Advisory Opinion of the Tribunal.
Filed under Jurisprudence
Seminar: Access to the Sea and an Ethiopia-Somaliland Port Deal
The International Centre of the Horn of Africa (ICHA) and the Leuven Centre for Global Governance Studies, will host a seminar, entitled, Access to the Sea and an Ethiopia-Somaliland Port Deal: Legal, Economic, Political and Security Issues, 21 May 2024, online. See here.
Filed under Events
Further Expanded North Sea MoU on Cooperation Regarding the International Operation of Maritime Autonomous Surface Ships (MASS)
On 10 May 2024, Norway joined the UK, Belgium, Denmark, and the Netherlands in an expanded MoU on Cooperation Regarding the International Operation of Maritime Autonomous Surface Ships MASS, which supersedes a previous MoU on Cooperation Regarding the International Operation of Maritime Autonomous Surface Ships MASS signed by the UK, Belgium, Denmark, and the Netherlands (i.e. without Norway) on 27 November 2023 – itself superseding a smaller MoU (i.e. without the Netherlands) signed on 13 September 2023. The 2024 edition of the MoU is not currently available, but no reported differences from the 2023 MoUs (beyond the expanded Signatories) are reported in the press release. The MoU provides “[t]he current Signatories of this Memorandum, after due diligence and agreement, would welcome other North Sea countries to join as new Signatories”.
The MoU is “intended to encourage and facilitate collaboration between the Signatories on the international operations of MASS and other autonomous vessels, including non-SOLAS size MASS in the North Sea”. The context explicitly notes that the MoU is to foster opportunities to safely support open-sea operation, tests and trials of MASS in different maritime environments, including the EEZ and on the high seas.
Filed under State Practice
Call for Abstracts: New Maritime Technologies – Challenges & Opportunities
On occasion of the 2024 ESIL Annual Conference (5-6 September 2024), the ESIL Interest Group on the Law of the Sea will convene a workshop, entitled, New Maritime Technologies: Challenges and Opportunities, 4 September 2024 (Vilnius, Lithuania). Abstracts are welcome until 20 May 2024. For more information see the call.
Vacancy: Postdoctoral Fellow at University of Bergen
The Faculty of Law at the University of Bergen (UiB) is currently seeking a Shaping European Research Leaders for Marine Sustainability (SEAS) postdoctoral fellow in regulatory and governance challenges to ocean sustainability (fixed-term 3-years/full time). Applications are welcome until 10 June 2024. For more information see here.
Filed under Vacancies
Vacancy: PhD position at University of Groningen
The Arctic Centre at the University of Groningen is currently advertising a fully-funded PhD position on the Legal Aspects of Indigenous Subsistence Harvesting in the Arctic. Applications are welcome before 9 May 2024. For more information see here.
Filed under Vacancies
Norway: MoUs on Cross-Border Transportation of CO2 with the Purpose of Permanent Geological Storage
Following previous relevant arrangements on the international transport and storage of carbon (e.g. 2022 Belgium-Denmark MoU), on 15 April 2024 Norway signed a series of Memorandum of Understanding (MoU) with neighbouring States on Cross-Border Transportation of CO2 with the Purpose of Permanent Geological Storage:
- Memorandum of Understanding (MoU) Between the Minister for Environment of the Flemish Region and The Federal Minister for the North Sea of Belgium and the Minister for Energy and Climate of the Walloon Region and the Minister of Energy of Norway on Cross-Border Transportation of CO2 with the Purpose of Permanent Geological Storage.
- Memorandum of Understanding (MoU) Between the Ministry of Climate, Energy and Utilities of Denmark and the Ministry of Energy of Norway on Cross-Border Transportation of CO2 with the Purpose of Permanent Geological Storage.
- Memorandum of Understanding (MoU) Between the Ministry of Economic Affairs and Climate Policy of the Netherlands and the Ministry of Energy of Norway on Cross-Border Transportation of CO2 with the Purpose of Permanent Geological Storage.
- Memorandum of Understanding (MoU) Between the Ministry of Climate and the Environment [sic] in Sweden and the Ministry of Energy of Norway on Cross-Border Transportation of CO2 with the Purpose of Permanent Geological Storage.
Denmark and Sweden also signed a similar bilateral arrangement:
- Memorandum of Understanding (MoU) Between the Ministry of Climate, Energy and Utilities of Denmark and the Ministry of Climate and the Enterprise in Sweden on Cross-Border Transportation of CO2 with the Purpose of Permanent Geological Storage.
The MoUs represent State practice on arrangements in the sense of London Protocol, Article 6(2), as amended by Resolution LP. 3(4) (2009) (not in force) and provisional application thereof under Resolution LP.5(14) (2019). As required, all states have previously deposited a declaration on provisional application of the 2009 amendment of the London Protocol pending its entry into force. In related news, Norway had announced two areas in the North Sea for applications related to CO2 injection and storage on the Norwegian continental shelf. “The Ministry will now process the applications received and aims to award exploration licenses in the second half of 2024”.
Filed under State Practice
Vacancy: Doctoral Fellow at Ghent University
The Maritime Institute (Department of European, Public and International Law of the Faculty of Law and Criminology, Ghent University (Belgium)) is seeking a doctoral fellow to address, Gentle wave or tsunami? The impact of unmanned and autonomous shipping on the law of the sea. Applications are welcome until 14 June 2024. For more information see here.
Filed under Vacancies
Philippine International Law of the Sea Academy (2024)
The 2024 Session of the Philippine International Law of the Sea Academy (PHILSEA) is open for applications until Sunday, 2 June 2024 . PHILSEA 2024 is an intensive academic capacity-building training programme to be held from 12-27 July 2024 that aims to strengthen the intellectual and practical aptitude of Filipinos (with limited slots for Non-Filipinos) on the law of the sea. It comprises 26 training lectures, a case study, and a navigation workshop. The initiative is endorsed by and in partnership with the Legal Education Board of the Philippines, the Philippine Association of Law Schools, and the Association of Law Students of the Philippines. See further here.
Filed under Courses
Call for Papers: Law of the Sea in the ASEAN Maritime Domain
The Max Planck Foundation for International Peace and the Rule of Law (MPFPR) invites submissions for a special issue on the Law of the Sea in the ASEAN Maritime Domain. The deadline for the submission of abstracts is 20 June 2024. For more information see the announcement and call for papers.
UNGA: Resolution Establishing a Preparatory Commission for the BBNJ Agreement
On 24 April 2024 the UN General Assembly (UNGA) adopted Resolution 78/272 ‘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’ (currently available as UN Doc A/78/L.41) with a vote (164-2-2; Russia and Syria voting against, Togo and Angola abstaining). Singapore led consultations on the text, which establishes a Preparatory Commission to prepare for the entry into force of the BBNJ Agreement and the convening of the first meeting of the Conference of the Parties to the BBNJ Agreement.
3. Decides to establish a preparatory commission, which shall meet at United Nations Headquarters unless otherwise decided, on dates to be determined, to prepare for the entry into force of the Agreement and to prepare for the convening of the first meeting of the Conference of the Parties to the Agreement, at the conclusion of which the commission will cease to exist;
UNGA Resolution 78/272
[…]
11. Further decides that the commission shall hold a three-day organizational meeting in the first half of 2024 with full conference services, including documentation, to discuss organizational matters, including the election of the Co-Chairs and a Bureau of the commission consisting of up to 15 members with up to 3 members from each regional group and taking into account gender balance, the dates of the meetings of the commission and the programme of work of the commission;
In a Letter dated 30 June 2023, the President of the Intergovernmental Conference that developed the text of the BBNJ Agreement had previously highlighted “the desire expressed by several delegations that efforts be undertaken with a view to supporting the early entry into force of the Agreement as well as its early implementation, including through a preparatory process such as a preparatory commission” (UN Doc A/77/945, p. 2). The Statement of Singapore on the introduction of the draft resolution provides further useful information on the inspiration and objectives of key elements in the resolution.
The Preparatory Commission is open to all UN Member States, members of the specialized agencies and Parties to UNCLOS (para. 4), with a broad invitation to other qualified entities, organizations and bodies to attend as observers (paras 5-6). The voluntary trust fund for the BBNJ Intergovernmental Conference is extended to the Preparatory Commission to assist developing countries attend meetings.
On decision-making of the Preparatory Commission:
8. Further decides that, after 20 September 2025 or the date of entry into force of the Agreement, whichever comes earlier, the taking of decisions by the commission shall only be by States and regional economic integration organizations that have signed the Agreement or have ratified, approved, accepted or acceded to the Agreement;
UNGA Resolution 78/272
9. Decides that the commission will take decisions on any recommendations to the Conference of Parties to the Agreement at the final meeting of the commission;
A proposed amendment by Russia to remove references to past and future milestones in the BBNJ Agreement, as well as the BBNJ Agreement’s addition as a sub-item to the provisional agenda of the seventy-ninth session of UNGA, was not adopted (UN Doc. A/78/L.43). A proposed amendment by Russia to include a strict sunset clause on the existence of the preparatory commission, as at the latest 20 September 2025, was also not adopted (UN Doc. A/78/L.43; contrast UN Doc. A/78/L.41 para 3 (as adopted)).
Filed under International Organizations, State Practice, Treaties
Vacancy: Research Assistant at University of Gothenburg
The Department of Law at University of Gothenburg is currently advertising for a Research Assistant (temporary 6 months, 80-100% position) who will work on a project, entitled, Smart Port Enforcement: The Prevention of Marine Pollution by Algorithm. Applications are welcome until 9 May 2024. For more information see here.
Filed under Vacancies
EU/UK: Fisheries Dispute Settlement Proceedings initiated under Trade & Cooperation Agreement
Following public consultations in 2023 on sandeel fisheries management in English and Scottish waters, on 31 January 2024 the UK government announced its “decision to prohibit the fishing of sandeels within English waters of ICES Area 4 (North Sea)”, effective 26 March 2024. On 1 February 2024, the Sandeel (Prohibition of Fishing) (Scotland) Order 2024 was also made (effective 26 March 2024), providing that “[f]ishing for sandeel is prohibited within the Scottish zone”. The measures applies to all vessels of any nationality and took effect prior to the start of the sandeel fishing season on 1 April 2024. The stated aims of the prohibitions are to bring “about wider environmental and ecosystem benefits”, by reference to sustainable fisheries management, the protection of sensitive marine species and the precautionary approach to the protection of marine ecosystems.
On 16 April 2024, the EU submitted a written request for consultations with the UK under the dispute settlement mechanism of the EU-UK Trade and Cooperation Agreement (TCA) regarding the UK’s decision to prohibit the fishing of sandeel in UK waters. The EU states the “measure[s] significantly restricts access for EU vessels to this fishery. The EU questions the compatibility of the full and permanent closure of the fishery with the principles and obligations under the TCA”. Sandeels are a shared stock (TCA Annex 35, #57), for which an agreed allocation of the share of the total allowable catch for 2024 was agreed 11 December 2023 (3.11% UK/96.89% EU), followed by the tonnes of total allowable catches signed 12 March 2024. Note, since 2021 the UK has not allocated the UK quota for English waters nor Scottish waters to any UK vessels. This is the first formal initiation of dispute settlement proceedings under the TCA dispute settlement mechanism. If consultations are unsuccessful, arbitration before an arbitral tribunal may be initiated.
Filed under Jurisprudence, State Practice
ICJ: Written Statements in Obligations of States in Respect of Climate Change AO
On 12 April 2024, the information department of the ICJ provided an update (PR No. 2024/31) on the previously reported written statements round in respect of Obligations of States in respect of climate change (Request for an Advisory Opinion). It reported a record-breaking 91 written statements being filed with the ICJ Registry, namely 88 statements within the time-limit set and 3 authorised late filings (in order of receipt):
Portugal; the Democratic Republic of the Congo; Colombia; Palau; Tonga; the Organization of the Petroleum Exporting Countries; the International Union for Conservation of Nature; Singapore; Peru; Solomon Islands; Canada; the Cook Islands; Seychelles; Kenya; Denmark, Finland, Iceland, Norway and Sweden (jointly); the Melanesian Spearhead Group; the Philippines; Albania; Vanuatu; the Federated States of Micronesia; Saudi Arabia; Sierra Leone; Switzerland; Liechtenstein; Grenada; Saint Lucia; Saint Vincent and the Grenadines; Belize; the United Kingdom of Great Britain and Northern Ireland; the Kingdom of the Netherlands; the Bahamas; the United Arab Emirates; the Marshall Islands; the Parties to the Nauru Agreement Office; the Pacific Islands Forum; France; New Zealand; Slovenia; Kiribati; the Pacific Islands Forum Fisheries Agency; China; Timor-Leste; the Republic of Korea; India; Japan; Samoa; the Alliance of Small Island States; the Islamic Republic of Iran; Latvia; Mexico; South Africa; Ecuador; Cameroon; Spain; Barbados; the African Union; Sri Lanka; the Organisation of African, Caribbean and Pacific States; Madagascar; Uruguay; Egypt; Chile; Namibia; Tuvalu; Romania; the United States of America; Bangladesh; the European Union; Kuwait; Argentina; Mauritius; Nauru; the World Health Organization; Costa Rica; Indonesia; Pakistan; the Russian Federation; Antigua and Barbuda; the Commission of Small Island States on Climate Change and International Law; El Salvador; the Plurinational State of Bolivia; Australia; Brazil; Viet Nam; the Dominican Republic; Ghana; Thailand; Germany […] Nepal; Burkina Faso; and The Gambia.
PR No. 2024/31, p. 1
This completes the first round of written submissions. Pursuant to Article 66(4) of the ICJ Statute and the Order of 15 December 2023, a second round of written submissions will now occur until 24 June 2024 (unless extended). States and organizations having presented written statements may submit written comments on the other written statements. Pursuant to Article 106 of the Rules of Court, the Court may decide to make the written statements accessible to the public on or after the opening of the oral proceedings in the case.
Pursuant to Article 105(b) of the Rules of Court, the ICJ may decide whether oral proceedings shall take place at which statements and comments may be submitted. To-date, the orders of the ICJ have reserved the subsequent procedure for further decision. Nonetheless, press releases by States (Tonga) and the ICJ (PR No. 2023/20) anticipate oral proceedings. All States and organizations invited to submit written statements are then invited to make an oral statement at public sittings held on dates fixed by the Court, whether or not they have participated in the written phase.
Book Launch: Regulation of Offshore Renewable Energy Activities
The Centre for International Law (National University of Singapore) will host a book launch event for Dawoon Jung’s The 1982 Law of the Sea Convention and the Regulation of Offshore Renewable Energy Activities within National Jurisdiction (Brill, 2023), 23 April 2024, online. For more information see here.
Filed under Events
Competitions: 2024 China ILOSMCC
Wuhan University China Institute of Boundary and Ocean Studies (CIBOS) and the Chinese Society of the Law of the Sea (CSLOS) announced the new edition of the China International Law of the Sea Moot Court Competition (2024 CHINA ILOSMCC). The oral rounds of the competition have been scheduled to take place on 2-3 November 2024 at Wuhan University. Further information is available here.
Filed under Competitions
Call for Papers: Protection of Maritime Critical Infrastructure and Seabed
The NATO Maritime Security Centre of Excellence (MARSEC COE) will host its 4th Maritime Security Conference, themed, Protection of Maritime Critical Infrastructure and Seabed, 27–28 June 2024, at MARSEC COE (Istanbul, Türkiye). Abstracts are welcome until 12 April 2024. For more information see here.
Russia: Remarks on the Delineation of Extended Continental Shelf Limits by the USA
On 18 March 2024 the Permanent Representative of the Russian Federation to the International Seabed Authority stated its position on the question of delineating the outer continental shelf limits of Non-Parties to the United Nations Convention on the Law of the Sea, more specifically the previously reported practice of the USA concerning its announcement of outer limits. The Russian statement objects to the US announcement of outer continental shelf limits without the USA first obtaining recommendations from the Commission on the Limits of the Continental Shelf, upon which final and binding boundaries can be established (UNCLOS, Art 76(8)). Russia also raises concerns regarding application of Article 82 of UNCLOS concerning the payments or contributions in kind with respect to the exploitation of the extended continental shelf. The statement concludes:
[T]he Russian Federation declares that it does not recognise the outer limits of the continental shelf that were unilaterally established by the United States.
Doc No. 545-25-03-2024, https://mid.ru/en/foreign_policy/news/1940722/
The USA’s position on possible submission to the Commission on the Limits of the Continental Shelf, as detailed in the Executive Summary (2023) is:
The United States has prepared a package of data and documents on its continental shelf limits for submission to the Commission on the Limits of the Continental Shelf […] The United States will file its submission package with the Commission upon accession to the Convention. The United States is also open to filing its submission package with the Commission as a non-Party to the Convention.
Executive Summary (2023), p. 6
Filed under State Practice, Treaties
Singapore/Indonesia: 2022 Expanded Framework Agreements Enter into Force
As provided for under the Exchange of Letters (25 January 2022) and following realignment (2) of the flight information regions, the 2022 Expanded Framework Agreements simultaneously entered into force (2) on 21 March 2024, namely the 2022 Agreement on the Realignment of the Boundary between the Jakarta Flight Information Region and the Singapore Flight Information Region, the 2022 Treaty for the Extradition of Fugitives, and the 2007 Defence Cooperation Agreement.
Filed under State Practice, Treaties
ISA: Report of the Secretary-General on the Nauru Ocean Resources Inc Incident of 2023
On 19 March 2024 an advanced unedited report of the Secretary-General of the ISA was released, entitled, Incidents in the NORI-D contract area of the Clarion-Clipperton Zone, 23 November to 4 December 2023 (ISBA/29/C/4/Rev.1). The 2024 Secretary-General Report seeks to provide additional information so as to facilitate the invitation to the ISA Council to address the incidents in the NORI-D Contract Area during Part I of the 29th Session (18-29 March 2024), including if further actions under Article 162 of UNCLOS are warranted (see, Statement by the President and Vice-Presidents of the Council on recent incidents in the NORI-D Contract Area (15 December 2023), para. 5). The report refers to the responsibilities of the Council to supervise ‘activities’ in the Area (UNCLOS, Article 162) as well as the responsibilities of the Secretary-General to assist the Council and to “act promptly and efficiently in the interests of the Authority and to protect the Authority’s rights” (referencing implied competencies) (2024 Secretary-General Report, para. 2).
Furthermore, the 2024 Secretary-General Report states:
The Secretary-General recalls that the immediate measures were intended to call for and facilitate the swift and efficient resolution of the situation unfolding in the NORI-D contract area, and their purpose was not to impose “orders” on any party. The Secretary-General, as the chief administrative officer of the Authority, is fully entitled to call upon any party causing interference with contractual rights granted by the Authority to cease such interference.
2024 Secretary-General Report, para. 9.
Concerning the adjudicative jurisdiction of the Netherlands, the Secretary-General argues:
The [previously reported preliminary relief judgment] finding rests on the implied premise that the Amsterdam District Court has jurisdiction over alleged protests interfering with activities in the Area. While the application by NORI to the Amsterdam District Court, subject to the relevant rules of Dutch law, may be regarded as consent to such jurisdiction, it is concerning that the Amsterdam District Court did not address the issue of the Authority’s competence over the matter at length. To the extent that the Court’s decision touches upon the role of the Authority, its position appears to be thinly reasoned and vague. The Secretary-General invites the Council to consider the implications of the decision, in the light of the relevant provisions of the United Nations Convention on the Law of the Sea conferring upon the Authority the competence to control activities in the Area;
2024 Secretary-General Report, paras. 11(c) and 18.
[…]
The Court’s decision disposed of the matter as between NORI and Greenpeace, upon the application and submission by NORI to the jurisdiction of the Court, but the Authority was not party to the proceedings culminating in the Court’s decision. Consequently, the measures of the Authority could not have formed, and did not form, the subject matter of the proceedings before the Amsterdam District Court. In any event, the courts of Member States do not have jurisdiction to adjudicate on the measures of the Authority or its organs (let alone in circumstances where the Authority or its organs do not even participate in any capacity in the court proceedings), or to sanction conduct that interferes with the rights and interests of the Authority. Consequently, the Amsterdam District Court had no jurisdiction to make any pronouncement as to whether the immediate measures had legal basis or carried legal effects.
Concerning the scope of actors subject to immediate measures, the position of the Secretary-General is:
The Secretary-General notes that the regulations on prospecting and exploration for polymetallic nodules in the Area do not impose any a priori constraint on the categories of immediate measures which the Secretary-General may promulgate, or on the legal effect of such immediate measures. Contrary, therefore, to the suggestions of Greenpeace, the Secretary-General had the authority to promulgate the immediate measures and to address certain provisions of the immediate measures specifically to Greenpeace considering the interference caused to the rights and obligations pertaining to the contract signed between the Authority and NORI.
2024 Secretary-General Report, para. 19.
The position of the Secretary-General concerning the rationale and basis for the promulgation of immediate measures of a temporary nature are addressed in the Interim Report on the Immediate Measures of the Secretary-General of the Authority dated 27 November 2023 (4 December 2023) and Second Report on the Immediate Measures of the Secretary-General of the Authority dated 27 November 2023 (12 January 2024). The 2023 Interim Report suggests the Greenpeace activities prevented NORI and TOML activities as well as “preventing the Authority from accessing critical environmental data as to the post-disturbance impacts of the collection system one year after the test of the system” (paras. 3, 17). In particular, on promulgating immediate measures:
[G]iven the reported refusal of the Arctic Sunrise to maintain a safe distance from the MV Coco, I noted that the contingency measures in place to prevent a threat of serious harm to the environment and avoid the collision of an exploration vessel with other vessels (in accordance with Section 6 of Appendix II of the Contract) were constrained by a series of factors pertaining to the refusal of Greenpeace to follow the call of NORI addressed to them.
2023 Interim Report, paras 4,7; see further Second Report, para. 17.
[…]
I was compelled to conclude, on a prima facie basis, that the circumstances unfolding in the NORI-D Contract Area presented a serious threat to the safety of life at sea and potential threat to the marine environment. Since Greenpeace did not deny that it had disregarded the warnings of the MV Coco concerning a minimum safe distance between vessels, and considering the fact that the MV Coco deploys equipment on the seabed, I further concluded that the issuance of immediate measures was necessary to prevent a threat of serious harm to the marine environment from materializing. The standard clauses in Annex IV of the Regulations (Section 6) provide that warnings issued to avoid a situation where another vessel is about to enter the immediate vicinity of the contractor’s vessel are measures aimed precisely at the prevention of environmental harm. Consequently, the fact that such warnings, provided for in the Regulations, were not complied with, means that a key measure devised to avoid environmental harm was ignored by the crew of the Artic Sunrise.
The report proceeds to state immediate measures of a temporary nature are taken on an “assessment of the facts alleged proceeded on a prima facie basis” and with due regard to the precautionary approach (2023 Interim Report, paras 8-9). The Secretary-General invites the Council to consider Articles 87, 138-139, 146, and 157 of UNCLOS in addressing the events and the rights and responsibilities of various actors (2023 Interim Report, para. 37).
Annex IV of the Second Report includes a previously unpublished Note Verbale from the Netherlands of 15 December 2023 (Ref: Min-BuZa.2023.20081-42), suggesting a difference of opinion between the Netherlands and the Secretary-General of the ISA concerning the interpretation and application of the UNCLOS framework.
First, on the promulgation of immediate measures of a temporary nature under Regulation 33(3) of the Regulations on Prospecting and Exploration for Polymetallic Nodules, the Netherlands “expresses its concern to the approach of the Secretary-General that is not in conformity with Regulation 33” (Ref: Min-BuZa.2023.20081-42, p. 6). This is on the basis that (a) the facts and circumstances do not qualify as a situation envisaged under that provision and (b) immediate measures of a temporary nature are limited to prevent, contain and minimize serious harm or threat of serious harm to the marine environment. In response, the observations of the Secretary-General of the ISA notes the “intrinsic link between the safety of navigation and the prevention of threats of serious harm to the marine environment” and the possibility that a breach of certain obligations of the Authority towards contractors may expose the Authority to liability (Second Report, para. 17).
Second, on the right of protest at sea, the Netherlands refers to the affirmation in The Arctic Sunrise Arbitration (Netherlands v. Russia) and the balance between having due regard to activities in the Area with the tolerance of some level of nuisance through civilian protest (Ref: Min-BuZa.2023.20081-42, p. 5). The lawfulness of protest actions at sea must be considered on a case-by-case basis, with any restrictions taking account of international human rights law and the law of the sea. The flag state jurisdiction of the Netherlands includes adjudicatory jurisdiction to determine the limits of the right to protest at sea, including in the vicinity of and aboard foreign vessels. The view of the Secretary-General of the ISA, however, differs:
“While the Kingdom of the Netherlands has jurisdiction over the Arctic Sunrise, it is not within the jurisdiction of the Kingdom of the Netherlands to authorize any interference with exploration activities of Contractors, let alone to define the circumstances in which any interference with contractors’ rights is permissible (whether on the basis of a “right to protest” or otherwise). These matters are squarely within the competence of the Authority, consistent with Article 153(4) of UNCLOS. As such, I consider that a unilateral endorsement of interferences with activities under the control of the Authority, such as the scientific campaign of NORI, encroaches upon the competences conferred on the Authority”.
Second Report, para. 17
Third, the Secretary-General supports the application of a 500m safety zone to the M/V Coco, a vessel, on the basis “the deployment of scientific equipment in support of scientific activities, conducted pursuant to an exploration contract granted by the Authority, is fully consistent with the objectives of Article 260 and UNCLOS” (2023 Interim Report, para. 22). The Second Report further points to IMO practice concerning safety zones around offshore installations and structures, some state practice on vessels, and an apparently unlimited discretion of the Secretary-General in determining the scope of ‘appropriate measures’ under Regulation 33 (Second Report, para. 17). By contrast, the Netherlands considers the M/V Coco a vessel operating as a ship, not an installation covered by the aformentioned Article 260 of UNCLOS. As the Netherlands is not aware of any generally accepted international standards authorising 500m safety or operating zones for ships, the requirement is a request not a mandatory requirement. In any event, as a possible limitation on the right to peaceful protest at sea, such a requirement must fulfil the tests of reasonableness, necessity, and proportionality (Ref: Min-BuZa.2023.20081-42, p. 7).
Call for Abstracts: ICYMARE 2024
The Bremen Society for Natural Sciences will host the International Conference for Young Marine Researchers 2024 (ICYMARE 2024), 16-20 September 2024, hosted alongside the Bremen Maritime Week. Presentation abstracts are welcome until 15 of April 2024, including from a law of the sea perspective in several sessions. The call for abstracts targets Bachelor, Master, and PhD candidates.
Netherlands: Investigation Report on Nauru Ocean Resources Inc Incident of 2023
In March 2024, the Ministry of Foreign Affairs of the Netherlands submitted a Note Verbale (Ref: Min-BuZa.2O242O479-12) (14 March 2024) to the International Seabed Authority (ISA) concerning the previously reported Nauru Ocean Resources Inc Incident of 2023 (see previously, here, here and here). Enclosed therein was a report of the “investigation by the Human Environment and Transport inspectorate [ILT] into the events related to the actions by Greenpeace International carried out from the Dutch flagged vessel MV Arctic Sunrise in the vicinity and on board the Danish flagged vessel MV Coco, operated by Nauru Ocean Resources Inc (NORI), from 22 November to 4 December 2023” [Note Verbale (Ref: Min-BuZa.2O242O479-12), p. 1].
The investigation was conducted following, among other reasons, a notification from Nauru to the Netherlands under Article 94(6) of UNCLOS, requesting “an immediate investigation by the Netherlands of the conduct of the MV Arctic Sunrise and for all necessary action to be taken by the Netherlands to ensure compliance by the MV Arctic Sunrise with the immediate measures and any future measures issued by the Authority” [ILT, Investigation M.V. Arctic Sunrise, para. 2]. The investigation concerned the safety aspects of the actions of MV Arctic Sunrise and kayaks launched from thereon, but not the safety aspects of the presence of Greenpeace International protesters onboard the MV Coco [ILT, Investigation M.V. Arctic Sunrise, para. 10].
Of interest in the context of the previously reported immediate measures of a temporary nature under Regulation 33(3) of the Regulations on Prospecting and Exploration for Polymetallic Nodules, two findings of the investigation are noteworthy:
11. The Inspectorate has not been made aware of any danger of oil spills originating from the kayaks or other dangers to the marine life. In any event, it is very unlikely that an event could have unfolded as a result of these hazards, that would have had the severity or magnitude to cause a serious impact on the marine environment. Therefore, the Inspectorate will not include the danger to marine life or the environment in this investigation.
[ILT, Investigation M.V. Arctic Sunrise, paras. 11 and 17]
[…]
17. With respect to the purported requirement of maintaining a safety or operating zone of 500 meters around the MV Coco, the Inspectorate found no (legal) basis, whether under the (provisions of the) 1972 Convention on the International Regulations for Preventing Collisions at Sea (COLREGS) or otherwise, for prescribing and maintaining a safety or operating zone of 500 meter around the MV Coco. It refers to the position of the Government of the Netherlands as expressed in its Note verbale to the Secretariat of the International Seabed Authority, MinBuZa.2023.20081-42 dated 15 December 2023.
Based on the results of the investigation and taking into account the previously reported Dutch court proceedings, the Ministry of Infrastructure and Water Management of the Netherlands reaffirmed the right to peaceful protect at sea, but will continue discussions with Greenpeace International to observe relevant international safety standards, including Resolution MSC.303(87) (2010) of the IMO Maritime Safety Committee [Note Verbale (Ref: Min-BuZa.2O242O479-12), p. 2]. In particular, the manoeuvres of the MV Arctic Sunrise were not dangerous or unlawful, nor did they compromise the safety of navigation. However, the positioning of “Greenpeace activists in kayaks at the stern of the MV Coco created [avoidable] safety hazards towards these activists” [ILT, Investigation M.V. Arctic Sunrise, paras. 13 & 16].
Filed under Jurisprudence, Non-State Actors, State Practice
Dispute Concerning Detention of Ukrainian Naval Vessels/Servicemen, Decision on Challenges
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, issued its Decision on Challenges on 6 March 2024. In accordance with Article 19(1) of the Rules of Procedure (22 November 2019) and Paragraph 7 of Procedural Order No. 8 (15 December 2023), the Decision on Challenges is issued by the three unchallenged Members by majority vote [Decision on Challenges, para. 1].
On 17 October 2023 the Russian Federation brought to the Arbitral Tribunal’s attention the fact that Professor McRae and Judge Wolfrum had voted, as members of the Institute of International Law (IDI), in favour of the Declaration of The Institute of International Law on Aggression In Ukraine (1 March 2022), arguing this raised impartiality concerns contrary to Sections 4.7-4.8 of the Terms of Appointment (22 November 2019) [Decision on Challenges, paras. 27, 31]. The Russian Federation submitted its Statement of Challenges on 24 November 2023, requesting the tribunal devise a procedure for deciding on the challenges and requesting the disqualification of Professor McRae and Judge Wolfrum as arbitrators [Decision on Challenges, para. 36]. Procedural Order No. 8 (15 December 2023) established the procedure for a decision on the challenges, while Procedural Order No. 7 (1 December 2023) extended the remaining written submission deadlines and reserved the week of 27 May 2024 for hearings on the merits.
On the standard of independence and impartiality, the Tribunal noted UNCLOS, the Terms of Appointment and the Rules of Procedure “indicate certain general principles pertaining to the qualifications of arbitrators”, while a Tribunal in the Chagos Marine Protected Area Arbitration (Reasoned Decision on Challenge, para. 166) was able to derive the applicable standard for upholding a challenge for lack of independence and impartiality in inter-State arbitration proceeding [Decision on Challenges, para. 87-89]. The “justifiable doubts” standard is an objective standard and the Tribunal agreed with the exhortation to adhere to “the standards applicable to inter-State cases” [Decision on Challenges, paras. 90-92].
The Tribunal continued:
[I]t is the view of the Arbitral Tribunal that it can draw guidance from all materials emanating from bodies called upon to dispense justice with comparable concerns for impartiality, independence and equality of treatment of parties, provided that the Arbitral Tribunal properly examines to what extent any principles or holdings can be appropriately transposed to the interState context.
Decision on Challenges, paras. 94-96
[…]
[I]n keeping with the established practice of inter-State arbitral tribunals […] The disclosure standard refers to circumstances that are of such a nature that they could give rise to justifiable doubts if their gravity or appreciation in the context of a given case were such as to lead to disqualification […] the significance to be attributed to non-disclosure depends on the circumstances of the case […] failure in this instance was an aberration on the part of two conscientious arbitrators, and does not on its own impact the assessment of their independence and impartiality.
On the timelines of the challenges by Russia, the Tribunal noted:
[A] timeliness requirement can be derived from and applied on the basis of the general requirement of good faith, and the international law rules of waiver and acquiescence, both manifestly applicable to arbitral proceedings under Annex VII to UNCLOS. There may also be a stage when bringing such a challenge would impinge on the fair administration of justice and the principles of the equality of the Parties. Such rules […] bar a State from exercising rights that it failed to assert promptly, i.e. that it consciously refrained from exercising within a reasonable period of time.
Decision on Challenges, paras. 98-99
On the specific Challenge to Professor McRae and Judge Wolfrum, the Tribunal decided:
101. Having carefully reviewed the text of the IDI Declaration and the circumstances of its adoption, the Arbitral Tribunal concludes that Professor McRae’s and Judge Wolfrum’s votes in favour of the IDI Declaration raise justifiable doubts as to their impartiality in this arbitration. Accordingly, the Challenges must be upheld.
Decision on Challenges, paras. 101, 103
[…]
103. For the reasons set out above, the three unchallenged Members of the Arbitral Tribunal, with Judge Gudmundur Eiriksson presiding, by two votes to one, uphold the Challenges to Professor McRae and Judge Wolfrum.
Sir Christopher Greenwood attached a Dissenting Opinion (6 March 2024), agreeing with the substantive standards to be applied in deciding on challenges in this case, but disagreeing with its application to the facts of the case. Greenwood posits “The IDI Declaration addressed different events, occurring later in time, and of a fundamentally different character from those with which the Tribunal is concerned. Nor do the rules and principles of international law to which the Declaration refers have any bearing on the decisions which the Tribunal will have to take in the present case.” [Dissenting Opinion, para. 10]. Greenwood also concludes that the challenge was untimely, given Russia’s awareness of the IDI Declaration since Spring of 2022 and its failure in inquire on arbitrators voting records if Russia viewed the IDI Declaration as relevant to proceedings [Dissenting Opinion, paras. 15-19].
Filed under Jurisprudence
Call for Abstracts: International Law in a Fluid World
The ILA Hellenic Branch will host the 81st Biennial ILA Conference, themed, International Law in a fluid world, 25-28 June 2024 in Athens (Greece). A number of panels and committee presentations are relevant to the law of the sea. There is also a call for abstracts open on 4 angles of the conference, welcoming submissions until 15 April 2024.
Call for Abstracts: 17th Polar Law Symposium
The 17th Polar Law Symposium, with two themes, Implementation of international minority- and indigenous law at national levels and Governance, resources, security, and jurisdictional issues in the circumpolar area, will be held 23-25 September 2024 at Mid Sweden University (Östersund, Sweden). Abstracts are welcome until 20 April 2024. For more information see here.
Vacancies: CIL Research Associate
The Centre for International Law (National University of Singapore) is accepting applications for the positions of Research Associate (Oceans Law and Policy). Applications are open until the position is filled.
Clarification: There is currently no Research Fellow position.
Filed under Vacancies
UN Environment Assembly: Resolution on strengthening ocean efforts to tackle climate change, marine biodiversity loss and pollution
The Sixth Session of the UN Environment Assembly (UNEA-6) was held 26 February – 1 March 2024 at the UN Environment Programme (UNEP) Headquarters in Nairobi, Kenya. The Ministerial Declaration (UN Doc UNEP/EA.6/HLS/L.1) welcomed the multilateral achievement in the adoption of the Internationally legally binding 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 (BBNJ Agreement) (para. 6). UNEA-6 also adopted a Resolution, entitled, Strengthening ocean efforts to tackle climate change, marine biodiversity loss and pollution (UN Doc UNEP/EA.6/L.18) which provides, among others:
The United Nations Environment Assembly,
Strengthening ocean efforts to tackle climate change, marine biodiversity loss and pollution, para. 2
[…]
2. Also encourages Member States, as appropriate, to:
(a) Consider to sign and ratify the BBNJ Agreement at the earliest possible date;
(b) Fully and effectively implement the Kunming-Montreal Global Biodiversity Framework adopted by the Conference of the Parties to the Convention on Biological Diversity as appropriate, including its goals and targets relevant to the ocean, and increase efforts at all levels to achieve those goals and targets;
(c) Engage in the ongoing process to develop an international legally binding instrument on plastic pollution, including in the marine environment, with the ambition of completing that work by the end of 2024, as mandated by UNEA resolution 5/14;
(d) Ratify, accept, approve or accede to the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, 1972;
(e) Make significant efforts to tackle ocean acidification and its causes and to further study and minimize its impacts;
Filed under International Organizations
Joint Statement Endorsing the Activation of a Maritime Corridor to Deliver Humanitarian Assistance to Gaza
On 8 March 2024, the European Commission, the Republic of Cyprus, the United Arab Emirates, the United States, and the United Kingdom issued a Joint Statement Endorsing the Activation of a Maritime Corridor to Deliver Humanitarian Assistance to Gaza. As the Joint Statement notes, “Cyprus’ leadership in establishing the Amalthea Initiative—which outlines a mechanism for securely shipping aid from Cyprus to Gaza via sea—was integral to enabling this joint effort to launch a maritime corridor”, the UAE mobilised support for the Initiative, and the United States announced an emergency mission to establish a temporary pier in Gaza. The first vessel, Open Arms, reportedly departed the port of Larnaca (Cyprus) on 12 March 2024.
Filed under Non-State Actors, State Practice
Calls/Events: EISA PEC2024
Deadline for submission of Paper/Panel/Roundtable is 13 March 2024 with the European International Studies Association (EISA) for the 17th Pan-European Conference (PEC) on International Relations that will take place 27-31 August 2024 at the Lille Catholic university in France. One of the standing sections of this year’s event is on Blue Turn – The Politics of Oceans and Polar Regions. See here for further information.
EU: binding limits for underwater noise pollution set
The European Commission (EC) Directorate-General for Environment has set binding limits for underwater noise pollution (11 March 2024). The measures were developed in the context of the EU Marine Strategy Framework Directive (MSFD) and should be used by Member States when they update their marine strategies under the MSFD, by October 2024. This follows previous recommendations from 2022 (see here). The Commission notice is available here; the annex to the notice sets the additional thresholds as follows:
| D11C1 Impulsive noise | For short-term exposure (1 day, i.e., daily exposure), the maximum proportion of an assessment/habitat area utilised by a species of interest that is accepted to be exposed to impulsive noise levels higher than the Level of Onset of Biologically adverse Effects (LOBE), over 1 day, is 20% or lower (≤ 20%). For long-term exposure (1 year), the average exposure is calculated. The maximum proportion of an assessment/habitat area utilised by a species of interest that is accepted to be exposed to impulsive noise levels higher than LOBE, over 1 year on average, is 10% or lower (≤ 10%). |
| D11C2 Continuous noise | 20% of the target species habitat having noise levels above LOBE not to be exceeded in any month of the assessment year, in agreement with the conservation objective of the 80% of the carrying capacity/habitat size. |
Filed under International Organizations
China: Declaration of Straight Baselines in the Northern Gulf of Tonkin
On 1 March 2024, China issued a Statement of the Government of the People’s Republic of China on the Baseline of the Territorial Sea in the Northern Gulf of Tonkin, which provides for straight baselines connecting 7 designated base points in the northern waters of the Gulf of Tonkin. The announcement is made pursuant to Article 15 of the Law on the Territorial Sea and the Contiguous Zone (25 February 1992). For further information and context see the previous deposits and submissions of baselines and lines of delimitation to the Secretary-General of the United Nations (UNCLOS 16, 75, 84), as well as the additional relevant material for the publicly available position of other states available here.
Filed under State Practice
Call for Abstracts: Subsea Cable Security & Resilience
The Valentia Transatlantic Cable Foundation will host the Valentia Island Symposium, themed, Subsea Cable Security and Resilience: Past, Present and Future, 10-12 October 2024 (Valentia Island, Ireland). Abstracts are welcome by 30 April 2024. For more information see here.
Call for Posts: The Red Sea Crisis and Combat Operations
The Center for International Maritime Security (CIMSEC) will feature a topic week, entitled, The Red Sea Crisis and Combat Operations, 29 April – 3 May 2024, online. Submissions are welcome by 15 April 2024. For more information see here.
Filed under Calls
Germany: Carbon Capture & Storage Strategy in the EEZ & Continental Shelf
On 26 February 2024 the Federal Ministry for Economic Affairs and Climate Action (BMWK) of Germany announced key points of its Carbon Management Strategy, which include amendments to the legislative framework to authorise industrial carbon capture and storage or use. Draft amendments to the Carbon Dioxide Storage Act would rename it the Carbon Dioxide Storage and Transport Act and include amendments to provide for industrial carbon capture and storage in the exclusive economic zone (EEZ) or the continental shelf of Germany (Carbon Dioxide Storage Act (Draft Amendment), Sections 2(2)-2(3)), excluding Marine Protected Areas (Carbon Dioxide Storage Act (Draft Amendment), Section 13(9)). A clarified and uniform approval regime for carbon dioxide pipelines is also foreseen (Carbon Dioxide Storage Act (Draft Amendment), Sections 2(1), 3(6)).
The key points also note that Germany intends to ratify the 2009 Amendments to the London Protocol (not yet in force) and will amend its domestic implementing legislation, the High Seas Dumping Act. For more information, see the press release.
Filed under State Practice
Vacancies: policy officer with DG MARE (EC)
The European Commission’s Directorate-General for Maritime Affairs and Fisheries (DG MARE) has a vacant post (GFIV) for a policy officer supporting the development and implementation of Mission Ocean and waters and Horizon Europe. The post is at the unit for Maritime innovation, Marine Knowledge and Investment. DG MARE is responsible for the development and implementation of the Integrated Maritime Policy as well as for the development, implementation and monitoring of the Common Fisheries Policy. Closing date is 21 March 2024; further details here.
Filed under Vacancies
Vacancies: Research Chair in Clean Arctic Shipping at Dalhousie University
The Schulich School of Law, Dalhousie University (Canada) invites applicants for nomination for a Tier 1 Canada Research Chair in “Clean Arctic Shipping” at the rank of Associate or Full Professor. The proposed chair will become a member of Schulich Law’s Marine and Environmental Law Institute. Applicants must have a background in maritime law, ocean law, or a related field in the Arctic context. Expertise or interest in Canadian or international law as it relates to Indigenous peoples, or in Inuit law, is an asset. They will join a team at the Marine and Environmental Law Institute leading research on the governance of Arctic shipping through the Qanittaq Clean Arctic Shipping Initiative. The project aims to address and respond to the increase in Arctic shipping and related environmental impacts affecting Arctic communities, and to support Inuit communities’ needs for safe and cost-efficient shipping. Closing date is 25 April 2024; see further details here.
Filed under Vacancies
De Maribus 