Author: lfi014

International Tribunal for the Law of the Sea (ITLOS)

Settlement of the Dispute concerning the Arctic Sunrise – A belated recognition of the relevance of the award on the merits in the Arctic Sunrise case?

By: Alex Oude Elferink

PDF version: https://site.uit.no/jclos/files/2019/07/JCLOS-Blog-8.7.2019-Settlement-of-the-Dispute-concerning-the-Arctic-Sunrise_Elferink.pdf

Document commented upon: Joint statement of the Russian Federation and the Kingdom of the Netherlands on scientific cooperation in the Russian Arctic region and the settlement of a dispute (Joint statement)

In the fall of 2013, the detention of the vessel Arctic Sunrise and its crew by Russian security forces was breaking news. The detention followed a protest action of Greenpeace activists against the rig Prirazlomnaia, which planned to begin the commercial production of oil in the Pechora Sea in the exclusive economic zone of the Russian Federation. The Russian Federation accused the activists of engaging among others in piracy and hooliganism. The activists faced criminal charges entailing long-term prison terms. The detention of the vessel and its crew prompted the Netherlands, the flag State of the Arctic Sunrise, to start arbitral proceedings against the Russian Federation under the United Nations Convention on the Law of the Sea (Convention), to which both States are parties. The Russian Federation immediately rejected that the arbitral tribunal had the jurisdiction to deal with this dispute and abstained from participating in the proceedings. However, the non-participation of the Russian Federation did not stop the arbitral procedure. Prior to the constitution of the arbitral tribunal, the International Tribunal for the Law of the Sea (ITLOS), in an order indicating provisional measures to protect the rights of the Netherlands, had already ordered the Russian Federation to release the Arctic Sunrise and its crew. Although the Russian Federation did not comply with the order of the ITLOS, it did release the crew of the Arctic Sunrise as part of an amnesty in connection with the 20th anniversary of the Russian constitution in December 2013. The bill introduced in the State Duma was amended at the last moment to include the charges that had been brought against the crew members. This probably did much to defuse media attention for the Arctic Sunrise incident in the Western press. The Arctic Sunrise itself was eventually allowed to leave the Russian port of Murmansk in June of 2014.

International Tribunal for the Law of the Sea (ITLOS)

Freedom of Navigation Following the M/V “Norstar” Case

Post author By lfi014
Post date 04/06/2019
1 Comment on Freedom of Navigation Following the M/V “Norstar” Case

By: Arron N. Honniball

Pdf version: https://site.uit.no/jclos/files/2019/06/JCLOS-Blog_4.6.2019_Honniball_Norstar_Freedom_of_Navigation.pdf

Case commented on: The International Tribunal for the Law of the Sea, Judgement in the M/V “Norstar” Case Between Panama and Italy, 10 April 2019.

Introduction

The International Tribunal for the Law of the Sea (ITLOS) delivered its Judgement in the M/V “Norstar” Case (Panama v. Italy) on 10 April 2019: The M/V “Norstar” Case (Panama v. Italy) Judgement. The Tribunal found that Italy violated Article 87(1) of the United Nations Convention on the Law of the Sea (UNCLOS), but did not violate Article 300 of UNCLOS. Article 87(2) of UNCLOS was found to be inapplicable (“Norstar” Judgement, para 469).

The factual background in brief is that the M/V “Norstar” was an oil tanker flying the Panamanian flag. According to Italy, an investigation into the activities of M/V “Norstar” and the “bunkering brokers” registered in Italy (Rossmare International S.A.S.) “revealed ‘that the M/V Norstar was involved in the business of selling the fuel purchased in Italy in exemption of tax duties to a clientele of Italian and other EU leisure boats in the international waters [high seas] off the coasts of the Italian city of Sanremo’” (“Norstar” Judgement, paras 69-70). Italy initiated criminal proceedings against the individuals involved and also issued a decree of seizure against the M/V “Norstar” as the corpus delicti of the alleged crimes. Spain enforced the decree of seizure when the M/V “Norstar” was within Spanish internal waters (“Norstar” Judgement, paras 70-75). An Italian court eventually ordered that the M/V “Norstar” be released and returned to its owners following the acquittal of the persons involved; but M/V Norstar’s owners never took possession and the vessel was auctioned off by the Spanish port authority (“Norstar” Judgement, paras 80-86).

This post analyses the doctrinal contributions of the “Norstar” Judgement to both freedom of navigation (Article 87(1)(a) of UNCLOS) and exclusive flag state jurisdiction (Article 92(1) of UNCLOS). The post concludes with a brief discussion as to if and why the Tribunal may wish to clarify its position on these issues in any forthcoming M/T “San Padre Pio” Case (Switzerland v. Nigeria), Order.

Northern Sea Route Security law

Navigational rights of warships through the Northern Sea Route (NSR) – all bark and no bite?

Post author By lfi014
Post date 31/05/2019
1 Comment on Navigational rights of warships through the Northern Sea Route (NSR) – all bark and no bite?

By: Jan Jakub Solski

PDF version: https://site.uit.no/jclos/files/2019/05/JCLOS-Blog_31.5.2019_Jan-Solski-1.pdf

Document commented on: Draft Resolution of the Government of Russia on Amendments to the Resolution of the Government of Russia No. 1102, 2 October 1999, “On the rules of navigation and presence of foreign warships and other state-owned ships operated for non-commercial purposes in the territorial sea, internal waters, on naval bases, and bases for stationing warships in seaports of the Russian Federation”.

This document, originally prepared by the Russian Ministry of Defense, 1 March 2019, has been subject to consultations since then. While it remains to be seen whether or not the Government of Russia ever adopts this Resolution, some of its central ideas deserve comment. To that end this blog post discusses the following points:

The background to this proposal;
Its central elements;
The question of applicable navigational rights within the straits of the NSR;
The question of the (in)consistency of the proposed measures with international law and Russia’s earlier positions.

Background

In September 2019, the French Navy’s new offshore support and assistance vessel, the Rhône (A603) transited the Northeast Passage, starting in Tromsø, Norway, 1 September and ending in Dutch Harbor, Alaska, on 17 September. There is little explicit information available as to whether the vessel coordinated its plans with Russian authorities beforehand, but Russian sources refer to the voyage as conducted “without warning”. It is clear that the vessel navigated independently, without icebreaker assistance or pilotage, although the Russian news agency Interfax informs that the vessel was “monitored” by the radio intelligence equipment of the Northern and Pacific fleets in their areas of responsibility in the Russian Arctic.

Over the past years, different signals, such as the diplomatic note of 29 May 2015, have been coming from another NATO member State, the United States, indicating the US objections and concerns regarding Russia’s NSR regulatory scheme, and, more recently, its readiness to take concrete action by transiting the Russian Arctic with surface vessels as part of the US Freedom of Navigation Program.

Law of the Sea Convention (UNCLOS)

Geneva Declaration on Human Rights at Sea (Version 1, 5 April 2019) – a contribution to the discussion on human rights in the maritime context

By: Jessica Schechinger

PDF version: JCLOS Blog_May 6 2019_Human rights at sea Declaration

Document commented on: Geneva Declaration on Human Rights at Sea (Version 1, 5 April 2019)

On 5 April 2019, the first version of the Geneva Declaration on Human Rights at Sea (hereafter: the Declaration) was published by Human Rights at Sea (hereafter, HRAS). HRAS is a charity based in the United Kingdom, that recently celebrated its fifth anniversary. It aims to raise ‘global awareness of human rights abuses at sea’, by undertaking research, investigation and advocacy.

According to HRAS’ press release, the Declaration was published on the basis of the first drafting session which took place in Geneva on 20-21 March 2019. Anna Petrig (a member of the board of advisors of HRAS), Irini Papanicolopulu, Steven Haines (a trustee of HRAS), and David Hammond (the founder of HRAS and currently a trustee) are the drafters of the Declaration. They were assisted by Elisabeth Mavropoulou and Sayedeh Hajar Hejazi.

The HRAS press release revealed that ‘[t]he first drafting round was supported with input and observers from multiple UN agencies, leading human rights lawyers, international and civil society organisations’. The press release did not specify who was involved, but hopefully this will be revealed after the second drafting session. This second drafting session is envisaged to be held in Geneva in May 2019, which is also when the four Annexes (entitled ‘Contemporary Evidence of Human Rights Abuses at Sea’ (A); ‘List of Applicable Fundamental Human Rights at Sea’ (B); ‘Commentary’ (C); and ‘Operationalising Human Rights at Sea’ (D)) will be finalised (at 3). As the Declaration is a work in progress, the following short blog post offers only some preliminary thoughts.

Biodiversity beyond national jurisdiction (BBNJ)

Assessing the role of strategic environmental assessments in the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction

By: Kristine Gu

PDF version: https://site.uit.no/jclos/files/2019/03/JCLOS-Blog-22.3.2019-Kristine-Gu.pdf

Document commented on: President’s aid to negotiations on the 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, A/Conf.232/2019/1.

The year 2020 will be a milestone year for the UN’s Sustainable Development Goals (SDGs) and an opportunity to reflect on the progress made, and the hurdles still ahead, in attaining these goals. SDG 14 addresses the conservation and sustainable use of the oceans, seas, and marine resources. It sets out to tackle several issues by 2020 that plague the marine environment, including overfishing and ocean acidification, and to manage marine ecosystems to avoid significant adverse impacts (Targets 14.2–14.4). SDG 14 points to the UN Convention on the Law of the Sea (LOSC) as the legal framework for the conservation and sustainable use of the ocean and marine resources (Target 14.C).

2020 also coincides with the final substantive session of the intergovernmental conference (IGC) on an international legally binding agreement (ILBI) under LOSC on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). Key elements of the ILBI will not only uphold LOSC mandates but also provide the tools essential to achieving the targets under SDG 14.

The first session of the IGC convened in September of last year. Discussions were centered around the four key elements of the “package deal” agreed upon in 2011, including environmental impact assessments (EIAs). An overview of the history and objectives of the IGC and the ILBI are provided for in the JCLOS blog posts of 17 August 2015 by Anna-Maria Hubert and 21 October 2016 by Christian Prip.

Delegates will gather again in New York at the end of this month for the second session of the IGC, with a focus on the Zero-Draft contained in the IGC President’s Aid to Negotiations (A/Conf.232/2019/1). Options to treaty text in the Zero-Draft take into consideration discussions from the first session, as well as the Preparatory Committee’s (PrepCom) recommendations in its 2017 report (A/AC.287/2017/PC.4/2), to reflect the general trend in the current dialogue.

This blog post focuses on the treatment of strategic environmental assessments (SEAs) by the IGC within the ambit of the EIA Working Group with a view to demonstrating the role of SEAs in pursuing SDG 14 and in the good governance of marine biodiversity. The post first lays out the nature and purpose of SEAs, and their use in existing environmental agreements. It then reviews delegate positions from the first session and as reflected in the Zero-Draft to uncover the ways in which SEAs may be developed in the ILBI.

Biodiversity beyond national jurisdiction (BBNJ)

Reflecting on the meaning of “not undermining” ahead of IGC-2

Post author By lfi014
Post date 21/03/2019
No Comments on Reflecting on the meaning of “not undermining” ahead of IGC-2

By: Vito De Lucia

PDF version: https://site.uit.no/jclos/files/2019/03/JCLOS-Blog-21.3.2019-Reflecting-on-the-meaning-of-not-undermining-ahead-of-IGC-2-3.pdf

Matter commented on: Intergovernmental Conference on marine biodiversity in areas beyond national jurisdiction

Introduction

After years of preliminary and preparatory discussions, the United Nations General Assembly (UNGA) (A/RES/72/249) finally launched an intergovernmental conference (IGC) with the purpose of adopting a new global treaty on marine biodiversity in areas beyond national jurisdiction (BBNJ). The IGC is soon to hold its second substantive session (IGC-2) following an organizational meeting held in April 2018, and a first substantive session (IGC-1) held in September 2018. IGC-1 has arguably shown progress, though not on certain key issues, such as the legal status of marine genetic resources, and a regime to share the benefits arising from their utilization. One of the questions that remains unresolved is the meaning of a key sentence that delimits the mandate of the IGC vis-à-vis existing bodies and institutions. UNGA Resolution 72/249 sets out that the new instrument “should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies”. Given that the IGC is moving towards text-based negotiations, and that one of the crucial negotiating issues is the institutional architecture, and further, that the interaction between a future BBNJ agreement and existing legal instruments and frameworks and other global, regional and sectoral bodies will be inevitable, it is perhaps time to address and resolve this issue. This post offers some inputs with the aim of furthering the debate on the meaning of “not undermining.”

Svalbard Treaty

The Senator Case – A new turn in Norway’s dealings with foreign vessels operating in the waters off Svalbard

Post author By lfi014
Post date 28/02/2019
No Comments on The Senator Case – A new turn in Norway’s dealings with foreign vessels operating in the waters off Svalbard

By: Tore Henriksen

PDF version: https://site.uit.no/jclos/files/2019/02/JCLOS-BLOG_28.2.2019_The-Senator-Case.pdf

Decision commented on: Judgment of Grand Chamber of the Norwegian Supreme Court in criminal proceedings (HR.2019-282S) A and SIA North Star vs. Prosecuting Authority

On 14 February 2019, the Supreme Court of Norway gave judgement in the Senator case, dismissing the appeals of the owner and the master of the Senator, a Latvian flagged fishing vessel. In the Courts of Appeal, the owner and master had been found guilty of violating the 2014 Regulation on prohibition on harvest of snow crabs (Snow crab regulation) through activities on the Norwegian continental shelf within the 200 nautical miles Fisheries Protection Zone (FPZ) off the archipelago of Svalbard. The vessel owner was fined NOK 150.000 and had to bear a confiscation of NOK 1.000.000. The master was fined NOK 40.000.

The Senator case adds to several criminal cases before the Supreme Court since the 1990s – see the Kiel case in a previous blog by Irene Dahl – where the defendants (owners of fishing vessels and masters) have disputed the charges of violating fisheries regulations in the 200 nautical miles Fisheries Protection Zone. They have argued that the regulations were not applicable as they were inconsistent with the non-discrimination obligation of Norway under the 1920 Treaty concerning Spitsbergen (Svalbard Treaty). In its decisions, the Supreme Court has avoided deciding whether this and other obligations are applicable in the maritime zones beyond the 12 nautical miles territorial sea. The Senator case is somewhat different from the previous cases as it concerned violation of a regulation prohibiting the harvest of snow crab, defined by Norway as a sedentary species. Sedentary species and hydrocarbon resources are part of the continental shelf regime of the law of the sea, cf. Law of the Sea Convention (LOSC), Article 77. A judgment in the Senator case addressing the relationship between the Snow crab regulation and the Svalbard Treaty could potentially have implications for the management of the hydrocarbon resources of the continental shelf off Svalbard. This relates to both the obligation under the Svalbard Treaty articles 2 and 3 not to discriminate between the subjects of the contracting parties and the restrictions on taxation under article 8.

Biodiversity beyond national jurisdiction (BBNJ)

A global treaty on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction: threat or opportunity for Arctic Ocean governance?

By: Christian Prip

PDF version: https://site.uit.no/jclos/files/2018/11/JCLOS-Blog_A-global-treaty-on-the-conservation-and-sustainable-use-of-marine-biodiversity-of-areas-beyond-national-jurisdiction.pdf

Matter commented on: First session of Intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 4 – 17 September, 2018, New York.

A process towards an international legally binding instrument (ILBI) under the Law of Sea Convention on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ) has been under way for 14 years operating under different mandates of the UN General Assembly establishing different negotiating groups. Overviews and the history of the process are provided in JCLOS blog posts of 17 August 2015 by Anna-Maria Hubert and of 21 October 2016 by this author.

The latest phase in this long process was triggered by UNGA resolution 72/249 authorizing an Intergovernmental Conference (IGC) to elaborate the text of an international legally binding instrument. The IGC held its first meeting in September 2018. The meeting was mainly used to clarify positions of different delegations on the elements of the package agreed in 2011 as the basis for the instrument. These are:

– marine genetic resources, including questions on the sharing of benefits,
– measures such as area-based management tools, including marine protected areas,
– environmental impact assessments and
– capacity-building and the transfer of marine technology.

Real negotiations on a text will start at the second session of the IGC, 25 March – 5 April 2019. For that purpose, the IGC President will prepare a document containing treaty-language and reflecting options on the four elements in accordance with the range of the diverging views expressed at IGC1. A third and a fourth meeting will take place in late 2019 and early 2020.

This blog post offers some thoughts on the relevance of a future legal instrument for the protection of biodiversity in the Arctic Ocean (AO), its relationship with existing instruments governing the AO and on whether Arctic States should move ahead of the global process with regard to protection of the AO.

Fisheries

Assessing the role of equity in fisheries allocation decisions

Post author By lfi014
Post date 31/08/2018
No Comments on Assessing the role of equity in fisheries allocation decisions

By: Maddalena H.L. Visser

PDF version: JCLOS Blog 31.8.2018 Assessing the role of equity in fisheries allocation decisions

Document commented on: Findings and Recommendations of the Review Panel with regard to the objection by the Republic of Ecuador to a decision of the Commission of the South Pacific Regional Fisheries Management Organization (CMM 01-2018)

In June of this year, a Review Panel, established under article 17 and annex II of the Convention for the Conservation and Management of High Seas Fishery Resources of the South Pacific Ocean (the Convention), released its Findings and Recommendations with respect to an objection presented by the Republic of Ecuador.

Ecuador objected to Conservation and Management Measure CMM 01-2018, adopted by the Commission of the South Pacific Regional Fisheries Management Organization (SPRFMO) on 3 February 2018. CMM 01-2018 allocates the quota of the total allowable catch (TAC) for Jack mackerel for 2018 among the states parties to the Convention participating in the fishery.

Delimitation

Maritime Delimitation in Ghana/Côte d’Ivoire: Predictability … with an Occasional Glitch

Post author By lfi014
Post date 06/02/2018
No Comments on Maritime Delimitation in Ghana/Côte d’Ivoire: Predictability … with an Occasional Glitch

By: Alex Oude Elferink

PDF version: https://site.uit.no/jclos/files/2018/02/6.2.2018_JCLOS-Blog_Alex-Oude-Elferink_Maritime-Delimitation-in-Ghana-Cote-dIvoire-Predictability-with-an-Occasional-Glitch-1.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.

The Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), which has been decided by a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) is a further addition to a long series of maritime boundary cases. In writing the concluding chapter of the edited volume Maritime Boundary Delimitation: The Case Law; Is it Consistent and Predictable?, the author of this post and his co-editors Tore Henriksen and Signe Veierud Busch made a forecast about the outcome of Ghana/Côte d’Ivoire on the basis of the existing case law – the text of the chapter was finalized on 10 May 2017 (on file with the author). This concerned the following points:

First, there is no reason to assume that […] the Chamber of the ITLOS will not apply the three-stage approach. Second, the coastal geography […] is such that we expect that a strict equidistance line, or an equidistance line very similar to the strict equidistance line, will be adopted as the provisional delimitation line. Third, we do not expect a radical departure from the equidistance line after the second-stage consideration of the relevant circumstances […]. Hydrocarbon licensing is likely to be considered as a potential relevant circumstance […], but it is not expected that this practice requires a shifting of the provisional line.

We also anticipated that the Chamber would “have no difficulty in determining the relevant coasts and the relevant area”. We indicated a couple of options for the relevant coasts of both parties, and for both Ghana and Côte d’Ivoire the Chamber adopted a relevant coast that was among the options we presented (for the Chamber’s selection see para. 379 and Sketch-map No. 2). Similarly, we submitted that:

[t]he relevant area can be expected to be bounded by the relevant coasts and the outer limits of the maritime zones of the parties. Depending on the definition of the relevant coasts, the lateral limits of the relevant area will be either perpendiculars to the general direction of these coast, lines of longitude (meridians) or the (potential) maritime boundaries with neighboring States.

As a matter of fact, the Chamber used the relevant coasts, meridians and the outer limits of the continental shelf beyond 200 nautical miles to define the relevant area (see paras 383-386 and Sketch-map No. 3). We concluded our analysis by noting that:

Our assessment of Ghana/Côte d’Ivoire […] strongly suggests that the law and methodology as developed by the case law result in a degree of predictability. It would not even seem unreasonable to submit that [it] suggest[s] a high degree of predictability.

Although the Special Chamber’s approach to the delimitation of the maritime boundary in Ghana/Côte d’Ivoire to a large degree aligns with the earlier case law and arguably contributes to the objective of predictability of the delimitation process, to which the Chamber explicitly refers (paras 281 and 289), there are a couple of points in the judgment that may seem to raise some concerns in that respect. The current post focusses on those points.