Slovenia/Croatia arbitration – Is the territorial sea delimitation inconsistent with the case law on maritime delimitation?

By: Alex Oude Elferink

Decision commented on: Final Award pursuant to the Arbitration Agreement between the Government of the Republic of Croatia and the Government of the Republic of Slovenia, signed on 4 November 2009, Final Award 29 June 2017

The Final Award in the Arbitration between Croatia and Slovenia dealing with their land and maritime boundaries was the subject of an earlier post on this blog. The current post aims to look in more detail at delimitation of the territorial sea boundary by the Tribunal and in that connection considers how it fits with the extensive case law of the International Court of Justice and other tribunals on the delimitation of maritime boundaries. For further background information on the Arbitration and the Award reference may be had to the earlier post of Nigel Bankes, The Maritime Aspects of the Award in the Arbitration between Croatia and Slovenia, on this blog.

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Posted in Arbitration, Bays, Delimitation, Law of the Sea Convention, Special circumstances, Territorial Sea Delimitation, Three-stage process, Uncategorized | Leave a comment

The Maritime Aspects of the Award in the Arbitration between Croatia and Slovenia

By: Nigel Bankes

Decision commented on: Final Award pursuant to the Arbitration Agreement between the Government of the Republic of Croatia and the Government of the Republic of Slovenia, signed on 4 November 2009, Final Award 29 June 2017

The long awaited Final Award in the Arbitration between Croatia and Slovenia dealing with the land and maritime boundaries (and related matters) between the two States was delivered on 29 June 2017 – over three years after the hearings in this case, held in the first half of June 2014, were closed. This post deals with the maritime aspects of the Award, which included the determination of the maritime boundary between the two countries, “Slovenia’s junction” to the high seas, and the regime for the use of the relevant maritime areas.

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Posted in Arbitration, Bays, Delimitation, Territorial sea | Leave a comment

Remarks on the European Parliament’s proposal to ban Heavy Fuel Oils in the Arctic

By: Nelson F. Coelho

PDF Version: Remarks on the European Parliament’s proposal to ban Heavy Fuel Oils in the Arctic

Decision commented on: European Parliament resolution of 16 March 2017 on an integrated European Union policy for the Arctic (2016/2228(INI)).

The carriage in bulk as cargo or carriage and use as fuel of heavy grade oils by ships in the Antarctic area (sea area south of latitude 60ºS) has been prohibited since 2011 under Regulation 43 of MARPOL Annex I, later amended to include use as ballast. Partly inspired by this measure, the European Parliament (EP) adopted, on March 16th 2017, a resolution on an integrated European Union (EU) policy for the Arctic. This resolution looks at many issues related to that region, one of them being the use of heavy fuel oil (HFO) in maritime transport.

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Posted in Arctic, Port state jurisdiction, ship-source pollution | Tagged , | Leave a comment

The Norwegian snow crab regime and foreign vessels – a commentary on the Juras Vilkas decision of the Øst-Finnmark District Court

By: Irene Dahl and Elise Johansen

PDF Version: The Norwegian snow crab regime and foreign vessels – a commentary on the Juras Vilkas decision of the Øst-Finnmark District Court

Decision Commented On: Acquittal pronounced by the District Court of Øst-Finnmark 24.01.2017. Case: 16-127201MED-OSFI.

The Latvian vessel Juras Vilkas, owned by the shipping company Arctic Fishing, was licensed by the Latvian Ministry of Agriculture to catch snow crab on the Norwegian side of the delimitation line in the high seas area (the Loop Hole) of the Barents Sea. The license was granted pursuant to a letter from the EU Commission of 22 December 2016, authorizing licenses for 16 vessels to fish snow crab in the Barents Sea under the terms of the Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries (NEAFC Convention). In the period 16 May – 25 July 2016 the captain of Juras Vilkas caught 80,340 kilos of snow crab (worth NOK 2 500 000) on the Norwegian continental shelf in the Loop Hole. The captain was prosecuted for violation of the Norwegian prohibition on snow crab catching and fined NOK 18 000. The shipping company was subject to a confiscation order of NOK 2 500 000 (the catch value). In the Decision of the District Court of Øst-Finnmark on 24 January 2017, both the captain and the company were acquitted on the grounds that the NEAFC Convention prevails over the Norwegian prohibition against catching snow crab on the Norwegian continental shelf.

This blog post provides an introduction to the Norwegian snow crab regime and analyzes the Court’s decision.

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Posted in Arctic, Arctic Fisheries, Fisheries, International Fisheries Law, Law of the Sea Convention, Norway, Norwegian Fisheries Law, Regional Fisheries Management Organizations, Svalbard Treaty | Leave a comment

Some comments on Ghana’s alleged violation of provisional measure (a) as prescribed by the ITLOS Special Chamber in its Order of 25 April 2015.

By: Natalia Ermolina

PDF Version: Some comments on Ghana’s alleged violation of provisional measure (a) as prescribed by the ITLOS Special Chamber in its Order of 25 April 2015.

Proceedings commented on: Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean, ITLOS Case No. 23.

Background of the dispute and the current post

The dispute between Ghana and Côte d’Ivoire over the delimitation of their maritime boundary was submitted by way of a special agreement to a special chamber of the ITLOS. On 27 February 2015, Côte d’Ivoire submitted a request for the prescription of provisional measures under article 290 (1) of the United Nations Convention on the Law of the Sea (LOSC). The Chamber delivered its Order on 25 April 2015 (Order). The Chamber unanimously prescribed the following provisional measures (para. 108 (1)):

(a) Ghana shall take all necessary steps to ensure that no new drilling either by Ghana or under its control takes place in the disputed area as defined in paragraph 60;

(b) Ghana shall take all necessary steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Côte d’Ivoire;

(c) Ghana shall carry out strict and continuous monitoring of all activities undertaken by Ghana or with its authorization in the disputed area with a view to ensuring the prevention of serious harm to the marine environment;

(d) The Parties shall take all necessary steps to prevent serious harm to the marine environment, including the continental shelf and its superjacent waters, in the disputed area and shall cooperate to that end;

(e) The Parties shall pursue cooperation and refrain from any unilateral action that might lead to aggravating the dispute.

Professor Nigel Bankes, in his post of 12 May 2015, summarized the conditions to be met in order to trigger the power of courts and tribunals to prescribe provisional measures and commented on the scope of the provisional measures prescribed by the Order of 25 April 2015. This post addresses the subsequent developments in the dispute between Ghana and Côte d’Ivoire.

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The Ecosystem Approach for Areas Beyond National Jurisdiction: Reflections on the Chair’s non-paper ahead of “PREPCOM III”

By: Vito De Lucia

PDF Version: The Ecosystem Approach for Areas Beyond National Jurisdiction: Reflections on the Chair’s non-paper ahead of “PREPCOM III”

Matter commented on: Chair’s non-paper “On elements of a draft text of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction”, dated 28 February 2017.

In a JCLOS blog post of 17 August 2015, Anna-Maria Hubert provided an overview of the UN General Assembly (UNGA) resolution (A/RES/69/292) to begin a process towards an internationally legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (ABNJ). In a second JCLOS blog post on the topic in October 2016, Christian Prip provided an overview of the progress that had been made in the interim. The preparatory committee (PREPCOM) established by UNGA Resolution 69/292 has held two meetings to date, the latest being in August-September 2016. The Chair of the PREPCOM (HE Mr. Eden Charles of Trinidad and Tobago) has released a non-paper in advance of the PREPCOM III meetings in New York at the UN headquarters, March 27 – 7 April, 2017. In this blog post I briefly discuss the purpose of the non-paper within the context of the work being undertaken by PREPCOM, and reflect in detail on one particular aspect of the non-paper: the ecosystem approach.

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Posted in Areas beyond national jurisdiction (ABNJ), Implementing agreements, Law of the Sea Convention, Marine biological diversity | Leave a comment

The relationship between declarations under the optional clause of the Statute of the International Court of Justice and Part XV of the Law of the Sea Convention

By: Nigel Bankes

PDF Version: The relationship between declarations under the optional clause of the Statute of the International Court of Justice and Part XV of the Law of the Sea Convention

Case commented on: Maritime Delimitation in the Indian Ocean (Somalia v Kenya), Preliminary Objections, Judgment, 2 February 2017

Somalia instituted proceedings against Kenya in the International Court of Justice (ICJ or the Court) in August 2014 concerning a dispute in relation to “the establishment of the single maritime boundary between Somalia and Kenya in the Indian Ocean delimiting the territorial sea, exclusive economic zone . . . and continental shelf, including the continental shelf beyond 200 nautical miles” (Somalia’s Application). In so doing Somalia relied upon Optional Declarations made by both states pursuant to Article 36(2) of the Statute of the Court. Kenya raised a preliminary objection as to the jurisdiction of the Court and also argued that the Court should treat Somalia’s application as inadmissible. On 2 February 2017, the Court released its judgment in respect of these preliminary objections.

This post explains the basis of Kenya’s arguments in respect of the jurisdiction of the Court and the admissibility of Somalia’s claim. It reviews the Court’s Judgment and dissenting opinions and declarations and offers some concluding remarks focussing on the relationship between declarations under the optional clause of the Statute of the International Court of Justice and Part XV of the Law of the Sea Convention (LOSC).

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Posted in ICJ Optional Declaration, Law of the Sea Convention, Treaty Interpretation | Leave a comment

Sea-change in polar shipping: from Arctic to Antarctic Polar Code initiatives

By: Dorottya Bognar

PDF Version: Sea-change in polar shipping: from Arctic to Antarctic Polar Code initiatives

Meetings commented on: International Maritime Organisation, Maritime Safety Committee, 95th session, 3-12 June 2015; Maritime Safety Committee, 96th session, 11-20 May 2016; Maritime Safety Committee, 97th session, 21-25 November 2016; Sub-Committee on Ship Design and Construction, upcoming 4th session (submissions discussed here are filed under agenda item 13 “Biennial status report and provisional agenda for SDC 5”), 13-17 February 2017.

The International Maritime Organisation’s (IMO) mandatory Polar Code – or to use its official title: International Code for Ships Operating in Polar Waters (see Resolution MEPC.264(68), 15 May 2015) – has just entered into force with the turn of the New Year. However, this is not the end of the developments with regard to the regulation of shipping in Arctic and Antarctic waters. With experience gained from the operation of the Polar Code, it is expected that work will start to extend the coverage of the Code to additional vessel types and new issues. But who is going to take the leadership role in pushing this agenda? Is it going to be the Arctic states, who have been instrumental in the development and content of the Code? Or are we going to witness the emergence of new leaders? In this post, I argue that we should be looking to the Antarctic states for leadership in this new phase of the Polar Code.

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Posted in Antarctic, Arctic, International Maritime Organisation, Polar Code, Uncategorized | 1 Comment

Compulsory Conciliation under the Law of the Sea Convention: rich pickings in the Decision on Objections to Competence of the Timor-Leste\Australia Conciliation Commission

By: Nigel Bankes

PDF Version: Compulsory Conciliation under the Law of the Sea Convention: rich pickings in the Decision on Objections to Competence of the Timor-Leste\Australia Conciliation Commission

Decision commented on: Conciliation Commission, Between the Democratic Republic of Timor-Leste and the Commonwealth of Australia: Decision on Australia’s Objections to Competence, 19 September 2016 (Registry, the Permanent Court of Arbitration).

Background

Part XV of the Law of the Sea Convention (LOSC or Convention) provides, inter alia, for “compulsory conciliation” with respect to disputes concerning the interpretation or application of the Convention in a number of instances. This particular dispute concerns Articles 74, 83 and 298 of the Convention. Articles 74 and 83 are the well-known provisions dealing with the delimitation of the exclusive economic zone and the continental shelf where there are overlapping entitlements as between adjacent or opposite states. Timor-Leste and Australia are opposite states separated by the Timor Sea which is approximately 300 NM wide. On the same day that Timor-Leste regained its independence (20 May 2002) the two states concluded the Timor Sea Treaty which established a Joint Petroleum Development Area pending delimitation of the boundary. Further negotiations between the two states led to the adoption (2006) of the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). In separate arbitral proceedings Timor-Leste is contesting the validity of CMATS. The two states have yet to agree on a permanent maritime boundary.

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Posted in Conciliation, Continental shelf, Exclusive ecnomic zone | 2 Comments

Towards a new legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction

By: Christian Prip

PDF Version: Towards a new legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction

Meetings commented on:  Meetings towards an internationally legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction in March/April and August/September, 2016.

In a JCLOS blog post of 17 August 2015, Anna-Maria Hubert provided an overview of the UN General Assembly resolution (A/RES/69/292) to begin a process towards an internationally legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (ABNJ). This post examines how the process has progressed since then.

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Posted in Areas beyond national jurisdiction (ABNJ), Implementing agreements, Law of the Sea Convention, Marine biological diversity | 2 Comments