Opposite or adjacent – does it make a difference? Delimiting the continental shelf beyond 200 nm

By: Signe Veierud Busch

http://site.uit.no/jclos/files/2017/12/JCLOS-Blog-011217_Blogpost-ghana-cote-divoire.pdf

Case commented on: ITLOS Special Chamber, Judgment in Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean, 23 September 2017.

In Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) was requested to delimit all maritime areas appertaining to Ghana and Côte d’Ivoire in the Atlantic Ocean, including the continental shelf beyond 200 nm. This is the first time an international court or tribunal has delimited the continental shelf beyond 200 nm where one of the parties to the dispute had received recommendations concerning the location of the outer limit of its continental shelf from the Commission on the Limits of the Continental shelf (CLCS). This makes the case particularly interesting for the purpose of clarifying procedural issues and the relationship between the CLCS, its recommendations, and international courts and tribunals.

A previous post by Nigel Bankes provides a general commentary on the Judgment of the Special Chamber.

The purpose of this post is to take a closer look at the parts of the Judgment dealing with the outer continental shelf delimitation, and discuss both procedural and substantive issues. Did the Special Chamber act in accordance with previous judicial practice, contributing to establishing a predictable and consistent practice? Further, the blogpost looks ahead to future delimitation cases, and considers whether the delimitation methodology applied by courts and tribunals in delimitation disputes between adjacent States should also be applied in delimitations between opposite States. The post uses the upcoming delimitation of the continental shelf between Nicaragua and Colombia beyond 200 nm from the Nicaraguan coast as an example.

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Posted in Adjacent coast, Continental shelf, Entitlement, Jurisdiction, Maritime delimitation, Opposite coast | Leave a comment

State responsibility for unilateral hydrocarbon activities in disputed maritime areas: The case of Ghana and Côte d’Ivoire and its implications

By: Natalia Ermolina and Constantinos Yiallourides

PDF version: http://site.uit.no/jclos/files/2017/11/JCLOS-Blog-231117_Ghana-blog_final.pdf

Case commented on: ITLOS Special Chamber, Judgment in Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic Ocean, 23 September 2017.

Background to the dispute between Ghana and Côte d’Ivoire

For a long time, Ghana believed that there was a de facto maritime boundary line between Ghana and Côte d’Ivoire, and since the 1950s had conducted hydrocarbon activities based on its understanding of this ‘customary boundary’. Côte d’Ivoire, for its part, was not particularly active in protesting Ghana’s hydrocarbon activities. Only in 2009 did Côte d’Ivoire make a proposal as to its view of the maritime boundary thus forming a triangular area of overlapping maritime claims. The area claimed by Côte d’Ivoire covered significant oil and gas fields discovered by Tullow Oil plc operating under a license of Ghana. Ghana alleged that this was the main reason why Côte d’Ivoire raised its claims.

The ITLOS Special Chamber (SC) rejected Ghana’s submission that there was a tacit agreement between Ghana and Côte d’Ivoire for the delimitation of their territorial sea, exclusive economic zone and continental shelf within and beyond 200 n.m. (chapter VII, especially paras. 211-228). At the same time, the SC also rejected Côte d’Ivoire’s proposed boundary. The SC drew a single maritime boundary for the territorial sea, the exclusive economic zone and the continental shelf within and beyond 200 n.m. (chapter IX). The final boundary drawn by the SC almost coincides with the line argued by Ghana and does not affect Ghana’s petroleum fields found in the Gulf of Guinea. Therefore, it is not surprising that in many news accounts the SC’s decision is referred to as a victory of Ghana over Côte d’Ivoire.

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Posted in Continental shelf, Delimitation, Disputed areas, Hydrocarbons, Oil and gas, State responsibility, unilateralism | Leave a comment

The way towards strengthened marine cooperation in the Arctic

By:  Christian Prip

PDF version: The way towards strengthened marine cooperation in the Arctic

Document commented on: Report to Ministers of the Task Force on Arctic Marine Cooperation.

The Arctic Council Ministers established a Task Force on Arctic Marine Cooperation (TFAMC) in 2015  “to assess future needs for a regional seas program or other mechanism, as appropriate, for increased cooperation in Arctic marine areas” and “to make recommendations on the nature and scope of any such mechanisms.” (Iqaluit Declaration, paragraph 43) The Task Force was requested  to deliver a report to Ministers in 2017 identifying future needs for strengthened cooperation for Arctic marine areas, as well as whether the Council should begin negotiations on a cooperation mechanism for Arctic marine areas.

Co-chaired by the U.S., Norway, and Iceland, the Task Force met five times, with participation from all Arctic States, three Arctic Council Permanent Representatives, four Arctic Council working groups as well as invited experts and observer States and organizations. In its 2017 report, the Task Force requested to continue its work. Ministers at the Arctic Council Ministerial in Fairbanks, Alaska, 10 – 11 May 2017 met the request and established a new mandate for the Task Force to present “…terms of reference for a possible new subsidiary Body, and recommendations for complementary enhancements to existing Arctic Council mechanisms, for consideration by Ministers in 2019.” (Fairbanks Declaration, paragraph 12).

A first meeting of the extended TFAMC was held 14 – 15 September 2017. Reports from TFAMC meetings are not made public.

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Posted in Arctic Council, Arctic Five, Areas beyond national jurisdiction (ABNJ), Central Arctic Ocean, International Maritime Organisation | Leave a comment

ITLOS Judgment in the Maritime Boundary Dispute between Ghana and Côte d’Ivoire

By: Nigel Bankes

PDF version: ITLOS Judgment in the Maritime Boundary Dispute between Ghana and Côte d’Ivoire

Case commented on: ITLOS Special Chamber, Judgment in Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic Ocean, 23 September 2017.

A Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) handed down its judgment in the Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic Ocean on 23 September 2017. The litigation was originally commenced by Ghana as an application initiating arbitral proceedings under Annex VII of the United Nations Law of the Sea Convention (LOSC) but in December 2014, by Special Agreement, the two states agreed to submit the dispute to a Special Chamber of ITLOS comprised of Judge Boualem Bouguetaia as President, Judge Rüdiger Wolfrum, Judge Jin-Hyun Paik, Mr Thomas Mensah, Judge ad hoc (Ghana) and Judge Ronny Abraham, Judge ad hoc (Côte d’Ivoire).  ITLOS acceded to that request. The Special Agreement and the attached Minutes of Consultations indicated that the two States were agreeing to transfer the arbitral proceedings instituted by Ghana with respect to the dispute “concerning the delimitation of their maritime boundary in the Atlantic Ocean.” Ghana’s earlier application had asked the Arbitral Tribunal to “delimit, in accordance with the principles and rules set forth in UNCLOS and international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Ghana and to Côte d’Ivoire in the Atlantic Ocean, including in the continental shelf beyond 200 M.”

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Posted in Continental shelf, Delimitation, Exclusive ecnomic zone, Good faith, Law of the Sea Convention, Oil and gas, Special circumstances, State responsibility, Territorial Sea Delimitation, Three-stage process | Leave a comment

EFTA Surveillance Authority Rejects Complaint Against Norway Related to Snow Crab Fisheries

By: Maria Madalena das Neves

PDF version: EFTA Surveillance Authority Rejects Complaint Against Norway Related to Snow Crab Fisheries

Decision commented on: EFTA Surveillance Authority Decision of 4 October 2017 closing a complaint case against the Norwegian Government concerning restrictions on commercial fishing or catching of snow crab (Decision No. 173/17/COL).

On 30 September 2016, a group of enterprises of EU Member States engaged in snow crab fisheries in the Barents Sea, submitted a complaint against Norway to the EFTA Surveillance Authority (ESA) (see complaint here). The complainants, whose identification has been not been made public (but likely including at least one Lithuanian enterprise), argued that Norway’s Regulation on Prohibition of Snow Crab Catching of 19 December 2014 and Act on the Right to Participate in Fishing and Catching of 26 March 1999 conferred an unjustified privileged access to vessels owned by Norwegian citizens and to Russian vessels to catch snow crab in the maritime zones of Norway (particularly in the Svalbard Fisheries Protection Zone and on the Norwegian Continental Shelf), and that said legislation was, consequently, inconsistent with Articles 4, 31(1), 34, 36(1), 124 of the European Economic Area (EEA) Agreement and with Article 5 of Protocol 9 of the EEA Agreement.  More specifically, the complainants argued that Norway’s secondary legislation regulating the catch of snow crab, which prevents nationals from other EEA Member States from establishing a company in Norway in order to be able to engage in fisheries or catching of crab, was inconsistent with the right of establishment, the freedom to provide services, the principle of non-discrimination, and the principle of proportionality prescribed by the EEA Agreement.

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Posted in Continental shelf, EEA Law, European Union, Fisheries, Law of the Sea Convention, Norwegian Fisheries Law, Svalbard Treaty | Leave a comment

Norway’s Ambitious Climate Act: Implementation Potential of the Marine Resources Management Tools

By: Lena Schøning

PDF-Version: Norways’ Ambitious Climate Act: Implementation Potential of the Marine Resource Management Tools

Matter commented on: Norway’s new Climate Act

In June this year, the Norwegian Parliament adopted the Climate Act. In short, the Act establishes under domestic law Norway’s objectives for reducing greenhouse gas emissions. The emissions covered by the Act are emissions and sinks reported by Norway under the Paris Agreement. The objectives of the Act are to reduce, by 40% by 2030 and by 80-95% by 2050, greenhouse gas emissions to the level of the reference year 1990. The Act is not unique; UK, Denmark and Finland have adopted similar statutes.

A yearly reporting obligation on meeting these objectives is included in the Act. These ambitious objectives call for consistent strategies from general to more specific goals, across sectors and policy areas: Arild Underdal, “Integrated Marine Policy: What? Why? How?” (1980). Marine Policy 159. By strategies, I mean the overall plans including measures and tools to meet these objectives. Even though the Act is recent and will not enter into force until 2018, the political objective of reducing greenhouse gas emissions is not new. This post examines whether strategies to meet these objectives are already in place or could be facilitated through relevant marine resource management tools.

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Posted in Climate change, Integrated resource management, Norway | Leave a comment

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 | 1 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 | 1 Comment