Jurisdiction over Ships : Post-UNCLOS Developments in the Law of the Sea [1 ed.] 9789004303508, 9789004303492

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Jurisdiction over Ships

Publications on Ocean Development Volume 80 A Series of Studies on the International, Legal, Institutional, and Policy Aspects of Ocean Development

General Editors: Robin Churchill and Alex Oude Elferink

The titles published in this series are listed at brill.com/pood

Jurisdiction over Ships Post-UNCLOS Developments in the Law of the Sea Edited by

Henrik Ringbom

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Jurisdiction over ships : post-UNCLOS developments in the law of the sea / edited by Henrik Ringbom.   pages cm. — (Publications on ocean development ; volume 80)  Includes index.  ISBN 978-90-04-30349-2 (hardback : alk. paper) — ISBN 978-90-04-30350-8 (e-book) 1. Jurisdiction over ships at sea. 2. Ships—Nationality. 3. Law of the sea. I. Ringbom, Henrik, editor.  KZA1470.J87 2015  343.09’62—dc23 2015024715

issn 0924-1922 isbn 978-90-04-30349-2 (hardback) isbn 978-90-04-30350-8 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. .

This book is printed on acid-free paper.

Contents Preface ix Abbreviations x 1 Introduction 1 Henrik Ringbom

PART 1 Flag States 2 Non-Flag States as Guardians of the Maritime Order: Creeping Jurisdiction of a Different Kind? 19 Robin Geiß and Christian J. Tams 3 United States’ Bilateral Shipboarding Agreements—Upholding Law of the Sea Principles while Updating State Practice 50 Henning Jessen 4 Sovereign Immune Vessels: Immunities, Responsibilities and Exemptions 82 Ted L. McDorman

PART 2 Port States 5 Port State Jurisdiction, International Conventions, and Extraterritoriality: An Expansive Interpretation 105 Bevan Marten 6 Assistance at Sea and Places of Refuge for Ships: Reconciling Competing Norms 140 Aldo Chircop

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PART 3 Coastal States 7

Excessive Coastal State Jurisdiction: Shipboard Armed Security Personnel 167 James Kraska

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The “New” Arctic Passages and the “Old” Law of the Sea 194 Erik Franckx

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Safeguards against Excessive Enforcement Measures in the Exclusive Economic Zone—Law and Practice 217 James Harrison

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New Maritime Zones and the Law of the Sea 249 Erik J. Molenaar

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Under-Utilized Coastal State Jurisdiction: Causes and Consequences 278 Robin Churchill

PART 4 Seafarers and Human Rights 12

Seafarers as an Agent of Change of the Jurisdictional Balance 301 Irini Papanicolopulu

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Jurisdiction, Ships and Human Rights Treaties 324 Urfan Khaliq

PART 5 Institutions 14

The Role of the International Maritime Organization in Defining and Altering the Jurisdiction of Flag, Coastal, and Port States 363 Erik Røsæg

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ITLOS and Jurisdiction over Ships 382 Tullio Scovazzi

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The Impact of EU Secondary Legislation on Issues Concerning Ships: A Case Study of National Proceedings in Respect of Waste Liability and Insolvency 405 Rosa Greaves

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The European Court of Justice and Its Role in (Re-)Defining EU Member Statesʼ Jurisdiction over Ships 422 Alexander Proelss Index 449

Preface During its first five decades of operation, the Scandinavian Institute of Maritime Law at the University of Oslo has mainly focused on the private law aspects of maritime law. However, the increasing relevance of public law aspects of maritime law, not least in relation to ship safety, environmental and security regulation, has brought about a growing interest in public international law and the law of the sea in the past decade or so. In 2013 the Institute teamed up with a few key academic partners to intensify the international co-operation on law of the sea issues through the ‘Oslo Law of the Sea Forum’ (OSLOS). The Forum is an informal network of law of the sea scholars who meet at irregular intervals to address issues of common research interest. A first topic selected by the OSLOS network was to explore the limits of states’ jurisdiction over ships, in particular in light of the development that has taken place since the adoption and entry into force of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). A carefully selected group of key experts in this field were invited to a small-scale workshop in Oslo on 24–25 June 2014 to discuss various topics where it was felt that developments in practice during the past three decades might have altered the jurisdictional balance as set out in UNCLOS and therefore justified a fresh look at the apportioning of jurisdiction over ships, in law and in practice. This book is the product of that workshop. During two intensive days, the contributors met in the newly refurbished main building of the University of Oslo in the heart of Oslo to analyse and discuss each others’ draft texts on topics which had been deemed to be particularly interesting from a jurisdictional point of view. In this volume, the original draft texts by the workshop participants have been complemented by the feedback received at the workshop and a subsequent light review process. The editor and the OSLOS team wishes to thank all contributors for their excellent cooperation at all stages of the process. Particular thanks are also extended to research assistants Bjarne Snipsøyr and José-Ignazio Azzari Støen for their assistance with the technical review of the chapters and to the staff at Brill for the excellent support and cooperation, from the first idea of the book until its finalization. All websites/URL references cited in the book are valid as at December 2014. Henrik Ringbom Oslo, April 2015

Abbreviations Art., Arts. Article(s) AWPPA Arctic Waters Pollution Prevention Act (Canada) Ch. Chapter CJEU Court of Justice of the European Union CMI Comité Maritime International CTP Common transport policy (of the EU) DOALOS UN Division of Ocean Affairs and the Law of the Sea ECJ See CJEU ECR European Court Reports ECtHR European Court of Human Rignts EEZ Exclusive economic zone ETS Emission trading scheme EU European Union FAO Food and Agriculture Organization FPZ Fisheries protection zone HNS Hazardous and noxious substances HRC Human Rights Committee IACS International association of classification societies ICCPR International Covenant for Civil and Political Rights ICJ International Court of Justice ICJ Rep Reports of the ICJ ILA International Law Association ILC International Law Commission ILM International Legal Materials ILO International Labour Organisation IMO International Maritime Organization ISPS International Ship and Port Facility Security ITLOS International Tribunal for the Law of the Sea J Judge, Justice LEG Legal Committe of the IMO LRIT Long-Range Identification and Tracking MARPOL International Convention on the Prevention of Pollution from Ships MLC Maritime Labour Convention MSR Marine scientific research NATO North Atlantic Treaty Organization OJ Official Journal of the European Union

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Para., paras. PSC PSI PSSA SAR SC SOLAS STCW TEU TFEU UCH UN UNCLOS UNCLOS III UNTS WMD WTO

Paragraph(s) Port state control Proliferation Security Initiative Particularly sensitive sea area Search and rescue UN Security Council International Convention on the Safety of Life at Sea International Convention on Standards of Training, Certification and Watchkeeping Treaty on the European Union Treaty on the Functioning of the European Union Underwater cultural heritage United Nations United Nations Convention on the Law of the Sea United Nations Third Conference on the Law of the Sea United Nations Treaty Series Weapons of mass destruction World Trade Organization

CHAPTER 1

Introduction Henrik Ringbom General The entry into force and widespread acceptance of the 1982 UN Convention on the Law of the Sea (UNCLOS) has contributed to significant stability in the law of the sea over the past few decades. The Convention’s rules, outlining the rights and obligations of flag states, coastal states and port states, have by and large been adhered to by states and accepted as the normative standard on the limits of states’ prescription and enforcement jurisdiction over shipping and other uses of the ocean. Nevertheless, the legal regime that was established by UNCLOS is neither complete nor static, nor was it intended to be so. New issues have surfaced while old issues have changed their character. More than three decades have passed since the adoption of the Convention, and developments in law and practice have already resulted in some important divergences between the jurisdictional scheme outlined in UNCLOS and how states in reality exercise jurisdiction over ships. The developments range from classical issues that have been brought to new light with more recent developments in shipping (such as, for example, the developments regarding the requirement that there must be a ‘genuine link’ between a ship and its flag state, as well as the extent to which human rights law applies to ships and may affect responses to modern-day piracy) to completely new legal questions. One example of the latter is the division of responsibilities between private and public players following from the increased reliance on private actors in shipping, including private enforcement entities and armed guards. In addition, societal development in the past three decades has highlighted concerns that were not prominent at the time UNCLOS was negotiated. This is particularly obvious in the environmental field (e.g. with respect to climate change, air emissions, ‘biosafety’ or alien aquatic species) and in ship security (e.g. anti-terrorism actions in ports and at sea).

* Professor II, Scandinavian Institute of Maritime Law, Faculty of Law, University of Oslo, Norway; Adjunct Professor (Docent) Department of Law, Åbo Akademi University, Turku/ Åbo, Finland.

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Another important regulatory development, which is hardly addressed in UNCLOS at all, is the use of port state jurisdiction to prescribe and enforce national requirements on foreign ships. Requirements may relate to conditions for access to the port, unilateral standard-setting, expulsions from the port or even collective ‘banning’ of ships from their ports by a group of states. In the past few decades there has been a significant increase of the use of such requirements, not only in quantitative terms, but also in terms of the material content of the prescriptive and enforcement rules, without there being much legal discussion of this development among academics. By contrast, the jurisdiction of coastal states is strictly regulated in UNCLOS and subject to clear legal limitations. It has also been subject to significant academic interest over the years. Yet the adoption and widespread application of UNCLOS has not stopped state practice from developing in this field. Excessive jurisdictional claims by coastal states did not end with the adoption of the convention, though the nature of such claims, and the responses thereto, may have changed. In addition, states have sometimes chosen to make use of jurisdictional constructions that are not provided for in UNCLOS at all, such as environmental protection zones. In other cases, the socio-economic significance of areas with a particular regulatory status has dramatically changed (notably in the Arctic region). Both developments call for a review of the legal regime in such areas. Conversely, a series of jurisdictional areas that have been specifically provided for in UNCLOS have remained essentially unused. Does this absence of practical use and utility have any effects on the jurisdictional status of those sea areas? Other developments in the law of the sea have been driven by international case law. The International Tribunal for the Law of the Sea (ITLOS) has repeatedly addressed issues related to jurisdiction over ships, both in prompt release cases and in substantive judgments. What are the trends here? Has ITLOS adopted a certain line in relation to the jurisdictional balance between flag, port and coastal states? How do the extensive safeguards against excess enforcement by port and coastal states work in practice, and is there a development in relation to the law governing ships protected by sovereign immunity? The increasing activity of the European Union in matters related to law of the sea is another development that deserves legal scrutiny from several perspectives, both with respect to the EU’s material shipping laws and to the international law relationships between the Union, its member states and their treaty partners. The present book seeks to highlight and explore such areas of ‘jurisdiction in transition’. A range of topics that are deemed to be particularly interesting from this perspective have been selected and analyzed by leading academic authorities. The book is divided into five main parts; the first three deal with

Introduction

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flag, coastal and port state jurisdiction, the fourth discusses jurisdictional issues linked to ships’ crews and human rights, and the final part covers institutional developments affecting jurisdiction over shipping. The underlying question, which all contributors have been asked to address, is whether and in what way developments in international law-making and state practice in their particular field over the past few decades have impacted the jurisdictional framework laid down in UNCLOS and thereby altered the understanding and content of contemporary law of the sea. The ambition of the book is to provide a snapshot of the contemporary picture of states’ jurisdiction over ships. Is UNCLOS still—or was it ever— the authoritative global ‘Constitution of the Oceans’ it was intended to be, or have subsequent legal developments and state practice challenged its role and authority in this respect? If UNCLOS is being challenged, is it a matter of finetuning the jurisdictional balance set out therein and filling its voids, or are we moving toward a more profound modification of the jurisdictional balance established in 1982? By highlighting and analyzing some of the most important post-UNCLOS developments in relation to jurisdiction over ships, the book seeks to provide a complement to the international conventions for those seeking to have a fuller understanding of international shipping law and the limits of states’ jurisdiction. At the same time, the book also serves as a practically oriented illustration of the processes underlying the development of international law more generally.

Flag States

The first question addressed in the book is whether flag states’ traditionally strong authority over their ships is still intact. Many of the key duties of flag states are laid down in UNCLOS Part VII, entitled ‘High Seas’, though it follows from their nature that they apply generally, irrespective of the location of the ship. In other states’ coastal waters the flag state’s jurisdiction over the ship is concurrent with that of the coastal state, but on the high seas the flag state has traditionally been considered to have exclusive jurisdiction. This is very much the starting point of UNCLOS, Article 92(1) of which specifically provides that ships shall sail under one flag only and “shall be subject to its [flag state’s] exclusive jurisdiction on the high seas”, “save in exceptional cases expressly provided for in this convention”.1 1  See also Article 95 providing that “[w]arships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.”

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In their introductory chapter Christian Tams and Robin Geiß observe that this type of channeling of exclusive jurisdiction to a single state is quite unusual from a broader international law perspective, and all the more so in this case as there are very few requirements linked to the nationality of vessels. Pressure for limitations to the exclusivity of flag state jurisdiction has mounted in different ways. Apart from the express exceptions to the exclusivity of flag state jurisdiction that are included in UNCLOS itself, Tams and Geiss illustrate how other developments since 1982 may have had a more profound effect on the nature of flag state exclusivity. The chapter provides a bird’s eye view of recent developments in enforcement by non-flag states in selected substantive fields; illegal fishing, terrorism, piracy and illicit trafficking. The authors conclude that the common interest in enforcing maritime order has often translated into compromise solutions that, rather than openly disapplying flag state jurisdiction, aim to ‘condition’ it through a gradual tightening of flag state responsibilities and a move towards liberal regimes based on flag states’ consent to inspection measures by other states. As a further strategy, rather than admitting general enforcement rights of all states, post-UNCLOS treaty law increasingly singles out particular categories of states (notably port states) and entrusts them with a special role as guardians of a common interest. A particularly good example of this development is the bilateral shipboarding agreements, which aim at bypassing flag state exclusivity by a voluntary ex ante authorization by the flag state to permit another state to board its ships. These agreements have most frequently been entered into in the field of maritime security, particularly by the United States on the one hand and major flag states around the world on the other hand. Such bilateral treaties may not be an entirely novel phenomenon, but their usage has escalated in practice in the past decade and the US has now concluded more than 60 bilateral agreements of this kind. Apart from that, certain international treaties have elaborated similar arrangements on a multilateral basis, most notably the 2005 Protocol to the Convention for the Suppression of Unlawful Acts of Violence against the Safety of Maritime Navigation.2 These developments in the field of maritime security and their impact on the jurisdictional balance between flag and other states are analyzed by Henning Jessen, who concludes that the advances in the field of shipboarding, whether at a multilateral or bilateral level, and whether for the purpose of narcotics control or enhancing maritime security, do not contravene fundamental legal principles of UNCLOS. In another case study of legal development that surveys the balance of rights and obligations between flag states and coastal and port states by looking at 2  1678 UNTS 222, IMO Doc. LEG/CONF.15/21 of 1 November, 2005

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the the immunities, responsibilities and exemptions of sovereign immune vessels, Ted McDorman concludes that post-UNCLOS developments have not fundamentally altered the state of international law in this area. UNCLOS does not address some of the key issues related to the extent of this immunity, such as the responsibility that flag states have for their actions or the legal consequences that might follow from those actions. These matters are left to customary law, but since disputes in this area are normally resolved outside the public realm, there are few developments in state practice to report. ITLOS has had some opportunities to rule on the sovereign immunity of ships, but has so far chosen not to enter into a more detailed discussion of this question.

Port States

The second part of the book deals with the changing nature and role of port states in the post-UNCLOS jurisdictional landscape. While states’ territorial sovereignty over their ports and internal waters has been well-established in international law for centuries, the port state was only introduced as a specific jurisdictional entity in the law of the sea through UNCLOS and its provisions on the protection and preservation of the marine environment from vesselsource marine pollution. Most provisions on port states relate to the enforcement of environmental standards in ports,3 but Article 218(1) introduced an innovation that concerns the extent of port states’ prescriptive powers. The paragraph authorized port states to penalize violations of international discharge requirements that have taken place on the high seas or in other states’ coastal waters. Since then, the significance and understanding of the port state as a jurisdictional entity has evolved significantly. It has moved from being an entity that mainly enforces international rules, to one with its own prescriptive rights and ambitions. Port entry requirements, or at least the threat thereof, have become an important vehicle for non-flag state legislative development, at least in the fields of maritime safety and security, and environmental protection. The practice of exerting regulatory pressure by means of port entry requirements is not universal, however. This type of requirement is only effective for larger states or geographical regions, where the economic risk of traffic diverting to neighboring ports with less rigid requirements is smaller. Accordingly, it is mainly the US, the EU and to some extent island nations, such as Australia, that have been at the forefront of this development. 3  See notably Article 218 and, less explicitly, Article 226(1).

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In view of the growing significance of port state jurisdiction in practice, and UNCLOS’ silence on the nature and scope of this jurisdiction, it is increasingly relevant to study the boundaries of how far port states may go in exercising this jurisdiction. This matter is analyzed by Bevan Marten, who proposes that a single test, that of a ‘substantial connection’ between the port state and the regulated matter, could be employed for assessing the lawfulness of port states’ jurisdictional claims. It is acknowledged by Marten that this represents a ‘comparatively expansive’ interpretation of port state jurisdiction, but he also notes that a broadly applicable principle under which the legitimacy of port states’ regulations could be assessed would also serve to curb excessive claims to jurisdiction. A second subject relating to port state jurisdiction, which is equally sparingly regulated in UNCLOS, relates to the rights and obligations relating to ships in distress. In particular the question as to whether ships have a right to enter a port or another place of refuge has been subject to intense discussions since the beginning of the 21st century. This matter is based on longstanding principles of customary international law that have increasingly been challenged in more recent practice. The IMO and others have made efforts to clarify the rights and duties applicable in this context, but, as the chapter by Aldo Chircop illustrates, uncertainties still exist with respect to de lege lata. Chircop notes that the law in this area consists of a complex interaction between conventional and customary norms. He analyzes this interaction in some detail, considers arguments for normative hierarchy and makes more general observations regarding the relationship between state practice and pertinent provisions of UNCLOS. The chapter concludes that international customary law on places of refuge continues to evolve as a result of state practice and in relationship to multilateral conventions and that the topic is likely to remain mostly uncodified in the absence of support for regulatory initiatives at the IMO.

Coastal States

The third part of the book discusses several different developments in the evolution of coastal state jurisdiction. First, the adoption of UNCLOS has not put an end to excessive jurisdictional claims by coastal states. As is noted in the chapter by James Kraska, such claims reside in virtually every type of coastal state authority. Coastal states may assert either “horizontal” claims that exceed the geographic or spatial area over which they may claim control, or “vertical” claims that exceed their lawful competence, sovereignty, sovereign rights, or

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jurisdiction. The lawfulness of such claims needs to be examined individually against the backdrop of the often ambiguous provisions of the international law of the sea, many of which are codified in UNCLOS. Since a single chapter is too short for analyzing all such claims at a general level, Kraska chooses to focus on one particular category of coastal state claims that is currently on the increase. He analyzes claims to prescriptive and enforcement jurisdiction by coastal states in relation to armed security on board ships, notably the case of privately contracted armed security personnel. As a consequence of increasing activities by armed pirates in the Indian Ocean, it has become increasingly common for ship operators to hire armed guards when ships pass through high-risk areas. At the same time, coastal states have been asserting greater jurisdiction over security measures and security personnel on board commercial ships while in their waters. Neither the carriage of firearms on board commercial ships nor their use in self-defense is specifically regulated in UNCLOS. Here again, guidance for the legal analysis is sought in the general scheme of that convention, along with subsequent development in practice and at relevant international institutions. Kraska concludes that coastal states’ increased claims to jurisdiction over ships with private security personnel on board may have altered the jurisdictional landscape, as there have been few efforts by other states to challenge such assertion of jurisdiction. A second development relating to coastal state jurisdiction relates to the changed situation of navigational rights and freedoms in the Arctic. In this case, too, the general provisions of UNCLOS obviously apply, but in addition there is a specific article relating to ice-covered areas (Article 234), which has gained new significance with the melting of the polar ice and the ensuing opportunities for commercial navigation in the area. So far, the precise implications of this article have not been the subject of extensive legal research, but through the opening of passages such as the the Northern Sea Route for commercial shipping in the past few years and the renewed legislative framework for such passages in Russia, its provisions are now being put to test in practice. At the same time a ‘Polar Code’ is being finalized as a (partly) mandatory instrument at the IMO. Erik Franckx studies these developments in his chapter. He concludes, on the basis of recent practice, that the authority of UNCLOS, including its Article 234, is still intact in the Arctic, but that the balance of interest between navigational and coastal interests is still unsettled, as borne out by the recent practice of states, and may next be affected by recent legislative developments at IMO, such as the adoption of the Polar Code. Third, the relevance and impact of UNCLOS on coastal state jurisdiction are eventually judged by how they are enforced in practice. In the article by James

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Harrison the enforcement powers conferred to coastal states in UNCLOS, as balanced by various safeguards to secure navigational interests, are assessed in the light of subsequent practice. In particular, the chapter assesses how the balance of interests as set out in the convention has been interpreted and applied in practice in the jurisprudence of ITLOS. Harrison concludes that the tribunal has adopted a strict approach to scrutinizing the actions of coastal states, thereby unduly interfering with the ability of coastal/port states to enforce their regulations. In addition, the tribunal has shown a tendency to introduce new restrictions and safeguards on the exercise of enforcement powers which are not explicitly contained in the convention. Finally, the effects of the division of the oceans into several different maritime zones are analyzed in light of the post-UNCLOS state practice. Dividing the oceans into different jurisdictional zones and apportioning the rights and obligations of states in each zone, was obviously one of the key challenges—and achievements—of the UNCLOS negotiations. But how well has the UNCLOS package deal on maritime zones stood the test of time? This matter is assessed in two different chapters, with opposite points of departure. On the one hand, Erik J. Molenaar analyzes a number of ‘new’ zones that have emerged in practice since the adoption of UNCLOS. New zones are zones that are not mentioned in UNCLOS and did not form part of customary law at the time it entered into force in 1994. The question here is whether such zones challenge the jurisdictional system and balance set out in UNCLOS. Molenaar concludes that this does not seem to be the case. Even if some developments in the post-UNCLOS period could have threatened the authority of UNCLOS, such developments are no longer being actively pursued. To the contrary, Molenaar considers the ‘active’ new maritime zones to be closely based on the regime set out in UNCLOS and concludes that “practically all of these new maritime zones are entirely consistent with current international law.” On the other hand, the chapter by Robin R. Churchill assesses forms of coastal state jurisdiction that are specifically permitted and foreseen in UNCLOS, but have remained unused or under-utilized in practice. Four such jurisdictional areas are identified: the contiguous zone, straits subject to the regime of transit passage, archipelagic waters and environmentally sensitive areas of the EEZ. In each case Churchill explains the nature of coastal state jurisdiction and seeks to explain its limited usage in practice, as well as considering the international law implications of that limited usage. The conclusion is that the identified under-utilization of jurisdictional opportunities under UNCLOS gives rise to few negative consequences.

Introduction



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Seafarers and Human Rights

Legislation on seafarers has undergone significant developments in the past few decades. Part four of the book deals with the relationship between international law and persons on board ships. Even if the law of the sea generally deals with the rights and obligations of states, UNCLOS does include certain provisions which are specifically directed at individuals, such as a ship’s master and crew. The chapter by Irini Papanicolopulu analyzes the role of the seafarer in the jurisdictional balance between states in the law of the sea. Through recent legislative developments, relating to maritime labour and security in particular, Papanicolopulu illustrates how alterations of the jurisdictional balance between flag, port and other states have also altered the jurisdictional links between states and the seafarer. Whereas the traditional jurisdictional link was exclusively based on the nationality of the individual or, more often, the ship, more recent treaties have increased the number of links and hence the categories of states that may or must exercise jurisdiction over a seafarer. Papanicolopulu concludes that such developments in the jurisdictional links to seafarers, which are still ongoing, have contributed to the erosion of the exclusivity and primacy of flag states’ jurisdiction over their ships. In the other chapter in this part, Urfan Khaliq analyzes the links between human rights treaties and persons on board ships, notably the relationship between the traditional human rights treaties and UNCLOS. The chapter examines how a body like the Human Rights Committee can and does protect the rights of those who find themselves on board ships, be they seafarers or others, and how that affects the jurisdictional regime of UNCLOS. Some fundamental, but not so obvious, jurisdictional issues concerning ships, including the relationship between human rights obligations and flag and port state jurisdiction, are examined in detail, followed by a study of the Human Rights Committee’s approach vis-à-vis the twenty-five leading flag states. Khaliq concludes that the relationship between UNCLOS and certain UN human rights treaty obligations is mainly complementary and that both regimes exist in harmony and can underline and enforce relevant developments in each other.

Developments within Key Institutions

The law of the sea was always intended to be further clarified and developed by international institutions. When it comes to regulation of shipping, UNCLOS grants a major role to the “competent international organization”, in singular,

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which usually refers to the IMO. In his chapter, Erik Røsæg assesses the way this organization has contributed to developing the jurisdictional scheme and the relationship between the IMO conventions and UNCLOS. He considers that the IMO as such has a limited role to play in changing the jurisdictional scheme of UNCLOS. The role of a designated organization is different from that of a legislator. However, the IMO plays an important role in developing ideas and rules, and in coordinating the exercise of jurisdiction by flag and coastal states. Another institution that could potentially play a very important role in developing the law of the sea is ITLOS. It has now been two decades since this Tribunal started its operations, and it has dealt with 23 cases, nine of which relate to the prompt release of vessels. Tullio Scovazzi analyzes how, if at all, this body of case law has affected the formation and/or consolidation of customary international law as regards states’ jurisdiction over ships. His review encompasses both the Tribunal’s treatment of key concepts of the law of the sea, such as the requirement of a “genuine link” between the flag state and its ships, and its consideration of various substantive matters relating to coastal states’ exercise of enforcement powers against foreign ships. In his conclusion, Scovazzi finds that ITLOS has played an important role in clarifying several issues that are not specifically regulated by UNCLOS, such as the arrest of ships or the bunkering of fishing vessels in the EEZ. However, he criticizes the Tribunal for not having seized its opportunities to clarify and develop certain key concepts that are laid down in the convention, such as the genuine link requirement. Despite the preference for global regulatory solutions in shipping that is evident throughout UNCLOS, certain regional bodies have become increasingly important players in the regulation of merchant shipping. This is particularly true of the European Union, also a contracting party to UNCLOS, the activities of which are considered in the last two chapters of the book. Rosa Greaves discusses how the EU legal order interacts with international maritime law. That topic concerns not only questions relating to the hierarchy of norms of different character and standing, but also complex questions relating to the division of competence and rights between the Union and its Member States. The nature of the interaction between the two legal systems, including basic questions such as which rules prevail, depends on whether the matter is addressed from the perspective of international law or EU law. In her chapter, Greaves addresses the EU law perspective. Through certain recent examples she examines how the relationship to certain maritime conventions of a civil law nature has been addressed by the EU’s legislator as well as by the Court of Justice of the European Union (CJEU). She concludes that emerging case law suggests that “there may be interesting times ahead” in this area of law.

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That prediction appears to be supported by the analysis in the final chapter of the book, written by Alexander Proelss. This chapter takes a broader view on the role of the CJEU in matters relating to international law through an assessment of its decisions relating to the law of the sea. The court’s contribution to the legal position of states’ jurisdiction over foreign ships is assessed in detail, based on recent case law. Proelss concludes that while the court has been cautious and keen to take an ‘internationalist’ approach to matters relating to flag state jurisdiction, it has been considerably more EU-oriented in certain recent landmark judgments relating to port and coastal state jurisdiction. While justifiable from a purely EU-based perspective, Proelss argues that such a Eurocentric approach could ultimately undermine the authority of the IMO and UNCLOS thereby contributing to the further fragmentation of international law, “at the expense of legal certainty and international law’s overall claim to normative validity”. Summary The chapters in this book represent a selection of developments in the law of the sea that have taken place since the adoption of UNCLOS. The selection is not exhaustive and perhaps not even representative for highlighting developments in the field of jurisdiction over ships. Nevertheless, the chapters illustrate certain trends and tendencies, many of which share common features, which justifies a few tentative observations of a general nature. To begin with, it seems clear from the survey of topics and themes in this book that neither the adoption of UNCLOS nor the widespread formal adherence to it has had the effect of finally ‘settling’ the jurisdictional balance between states as regards commercial shipping. The different chapters illustrate, all from their own perspective, how developments in political priorities, technologies and environmental, safety or security demands have contributed to a continued dynamism in the jurisdictional landscape governing international shipping and the relationship between different players in this landscape. Rights and obligations of states in this field keep developing and merely consulting the ‘Constitution of the Oceans’ will not always provide a sufficiently accurate picture of the precise extent of states’ rights and obligations. On the other hand, evolutions in jurisdictional balance do not normally take the form of outright confrontations with the law of the sea. Direct challenges to the jurisdictional scheme set out in UNCLOS are rare. It is evident throughout this book that UNCLOS still represents the undisputed authority and the obvious starting point when looking for answers to any question on states’ jurisdiction over activities at sea. The core features of its jurisdictional scheme as far as

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navigation is concerned, such as the zonal division of the oceans, and the differentiated rights and obligations of states provided in those zones, appear to be almost unchallenged today. States’ failure to exercise different jurisdictional possibilities for their maritime zones originate in practical considerations, not in challenges to the legal framework. Instead, the most important developments affecting the jurisdictional balance seem to be taking place in areas where UNCLOS fails to provide explicit guidance. The examples discussed in this book demonstrate that the very specific attribution of jurisdictional competences to states over shipping, which is among the most detailed aspects of the entire convention, does not in itself guarantee legal clarity. First, even if a particular matter is seemingly exhaustively regulated, the terminology and concepts employed in the convention are often vague and insufficient to serve as a practical guide. The convention’s provisions relating to jurisdiction over ships include a variety of such concepts, which over time have been interpreted and elaborated further by international courts and tribunals and by academics.4 A notorious example that features in several chapters in this book is the requirement that there must exist a “genuine link” between the flag state and its ships. Interpretation of key concepts of UNCLOS in light of subsequent practice by states also features in the chapter on coastal state jurisdiction in ice-covered areas according to Article 234 and in the analysis of enforcement powers of coastal states in their EEZ. Second, the topics considered in this book show that there are quite a few jurisdictional issues that are inconclusively addressed in UNCLOS. The majority of developments discussed concern matters that are either not regulated in UNCLOS at all, or are regulated only very elusively. Such matters will, according to the convention’s preamble, “continue to be governed by the rules and principles of general international law”. In most examples taken up here, state practice has developed significantly in the past decades, sometimes accompanied by subsequent developments in treaty-making at an international, regional or bilateral level. While a few of the treaty developments at IMO more or less explicitly aim to affect the jurisdictional balance,5 the more common set-up 4  The International Law Association’s Committee on Coastal State Jurisdiction Relating to Marine Pollution represents a rare and impressive undertaking by academics to collectively identify the more concrete implications of certain key concepts in UNCLOS, such as ’generally accepted rules and standards’, ’competent international organization’ and ’wilful and serious pollution’. The Final Report of the Committee is published in the Yearbook of the International Law Association, 2000. 5  Notably the 2005 SUA Protocol referred to at note 2. See in particular Article 7a thereof.

Introduction

13

is that IMO instruments do not directly address jurisdictional matters and seek to avoid such effects. Yet, the conventions may nevertheless have subtle jurisdictional effects, for example, by discreetly affirming developments in the jurisdictional balance that have taken place in practice. A case in point is port state jurisdiction, where certain recent maritime conventions have included provisions specifically preserving the ‘residual’ jurisdiction of port states to take action under international law, notwithstanding the rules laid down in the convention.6 In other areas, for example relating to places of refuge, there has been no treaty development to accompany the changing practice, but the adoption of ‘soft law’ instruments, such as IMO Guidelines, may nevertheless have had the effect of altering lex lata in the field. The developments relating to armed guards on board ships provide an example of a potential development of customary law based on the practice of very few, or even a single, state combined with the reactions by other states. In substantive terms, the general tendency of the developments assessed in this book seems to be towards a (further) erosion of exclusive flag state jurisdiction and other traditional navigational freedoms. The first chapters of the book highlight some very concrete examples of that development, but the pattern is largely similar for the remainder of the book. More and more material requirements and conditions are being placed on ships and their crews while, at the same time, increasing doubts as to whether flag states can actually meet all those requirements have given rise to a broadening of the jurisdictional bases for other states. The development of a more decentralized exercise of jurisdiction over ships started well before the conclusion of UNCLOS, but, as the various chapters of this book testify, the adoption and widespread acceptance of the convention has not halted that development. Express ‘constitutional’ support for the flag state’s exclusive jurisdiction over its ship has not ended other states’ misgivings about flag states’ sincerity and capacity to live 6  See e.g. Regulation XI-2/2(4) of the International Convention for the Safety of Life at Sea 1184 UNTS 3, as amended; Article 1(3) of the International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 5 October 2001, IMO Doc. AFS/CONF/26; and Article 2(3) of the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 13 February 2004, IMO Doc. BWM/CONF/36. The most explicit example in this respect is Article 4(1)(b) of the 2009 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing , according to which nothing in the agreement shall be construed to affect “the exercise by Parties of their sovereignty over ports in their territory in accordance with international law, including their right to deny access thereto as well as to adopt more stringent port State measures than those provided for in this Agreement.”

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up to the requirements. The expansion of open registries has probably contributed to this development, while a series of high-profile maritime accidents in the waters of traditional flag states in the period have served to shift the political emphasis away from the flag state. Based on the sample of issues discussed in this book, it seems that well-developed states and regions that have been the principal force behind such ‘creeping’ jurisdiction towards further powers for port and coastal states. The defenders of the status quo have been more discrete, but at times international institutions, not least ITLOS, have stepped in to decelerate that development. Post-UNCLOS developments in the field of jurisdiction over ships have accordingly broadened both the bases for exercising jurisdiction over ships and the sources that provide the foundation for that jurisdiction. It is increasingly common that several states exercise concurrent jurisdiction over a certain ship and that the foundation for the (flag, coastal or port) state’s jurisdiction is not governed by one treaty alone but defined by a complex and subtle web of legal developments at the global, regional and national level. While this development could be interpreted as a failure of UNCLOS to provide the intended stability in the field, it should also be remembered that the convention did not seek to ‘freeze’ the jurisdictional balance to a given substantive or temporal point. Rather it sought to provide a legal framework for establishing and developing states’ jurisdiction by providing the general principles for its development in the future. In this light, it is remarkable that none of the developments discussed in this book question the authority of UNCLOS as such. Throughout the book, the convention’s ‘constitutional’ status remains intact as the (single) instrument that distributes the rights and obligations of states in relation to jurisdiction over ships and the principles for their further development. This is all the more significant in light of the argument that many of the developments discussed in this book in reality represent quite significant advances of the jurisdictional balance. The notion of ‘creeping jurisdiction’ has not disappeared; it has only moved to a new arena consisting of substantive fields which are not expressly or conclusively regulated in UNCLOS. That arena has proven to be large enough to permit advances of the jurisdictional balance that are arguably quite significant in substantive terms, but not so large as to threaten the overall authority of UNCLOS or general legal certainty in the field. The very fact that UNCLOS has been able to accommodate the developments discussed in this book within the parameters of international law and without the involvement of any direct challenges of its authority as the sole constitutional framework, is in itself a sign of the remarkable flexibility that resides in the convention. In the words

Introduction

15

of Gavouneli, the convention “has proven to be solid yet flexible, constant yet adjustable, massive yet subtle—old and yet so new . . . ”7 This dynamism of UNCLOS to accommodate the changing and divergent needs of (flag, port and coastal) states and others has ensured that there have been relatively few calls for a major revision of the jurisdictional scheme for ships to date. Not even the more recent developments toward regulatory mechanisms to secure the sustainable management of areas beyond any state’s national jurisdiction have so far placed significant pressure for a thorough overhaul of the jurisdictional rules on shipping. In view of the few current challenges to the UNCLOS rules on jurisdiction over ships, combined with the experience of how such challenges have been handled in the past, the prediction must therefore be that the convention will continue to guide the distribution of rights and obligations in this field for many years to come. The convention does not derive its continued authority and status in this field from a set of provisions that is clear-cut and complete, but rather from its flexibility, which follows from the fact that its provisions have neither of those qualities.

7  M. Gavouneli, Functional Jurisdiction in the Law of the Sea (Martinus Nijhoff Publishers, Boston and Leiden: 2007) 178.

Part 1 Flag States

⸪

CHAPTER 2

Non-Flag States as Guardians of the Maritime Order: Creeping Jurisdiction of a Different Kind? Robin Geiß and Christian J. Tams Introduction Much of international law is an attempt to allocate competence over space and objects. ‘Jurisdiction’ is international law’s essential tool in performing this coordinative function. It is a tool of relatively recent provenance though: until the late 19th century, rules of jurisdiction were not considered to be part of a general concept, but viewed as annexes to substantive rules regulating the conduct of international relations in a given area.1 The shift towards a general approach to jurisdiction has long been accomplished: alongside the ‘invention’ of a general system of responsibility, it may be one of the major conceptual accomplishments of the 20th century. Yet unlike that other accomplishment, it remains incomplete, and perhaps we are even witnessing a bit of a backlash. On the fringes—in the offshore zones of international law2—debates about jurisdiction remain non-integrated. From the perspective of general international law, rules on maritime jurisdiction remain such an offshore zone, resisting integration into the general discourse. To give just one example, general textbooks, even good ones, tend to relegate maritime approaches from their general chapters on jurisdiction and instead deal with them as part of their summarized account of the law of the sea.3 And at some level, this is perhaps * Professor of International Law and Security, University of Glasgow. ** Professor of International Law, University of Glasgow. 1  Lowe makes that point succinctly, see his chapter on Jurisdiction, V. Lowe “Jurisdiction” in M.D. Evans (ed.) International Law 2nd (Oxford University Press, Oxford: 2006) 335–360. 2  W.M. Reisman “The Quest for World Order and Human Dignity in the Twenty-first Century” (2010) 351 The Hague Academy of International Law: Recueil des cours 9–382. 3  J. Crawford Brownlie’s Principles of Public International Law 8th (Oxford University Press, Oxford: 2012) is an example; See further and compare to P. Malanczuk “Chapter 7 Jurisdiction” and “Chapter 12 The Law of the Sea” in P. Malanczuk (ed.) in Akehurst`s modern Introduction to International Law 7th (Routledge, London and New York: 2003) 109–117 and 173–195; M. Gavouneli “Chapter 2 State jurisdiction in the sea” and “Chapter 3 Jurisdiction in the exclusive economic zone” in Functional Jurisdiction in the Law of the Sea (Martinus Nijhoff,

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004303508_003

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understandable. The specialized debate on maritime jurisdiction after all is dominated by peculiar concepts—the flag, the contiguous zone, port states, etc.—that do not easily fit the general analytical categories (enforcement versus prescriptive jurisdiction, territoriality, active or passive personality, effects, protection etc.).4 But all things considered, the separation, it is submitted, is unfortunate, as the maritime discourse on jurisdiction is sophisticated as much as it is nuanced; and its fuller integration could enrich our understanding of the general law of jurisdiction. These general lines provide the background for the following inquiry into recent developments in the field of maritime jurisdiction. It is an inquiry pursued by two general international lawyers, and with the aim of situating developments in one specialized field within the broader context of general jurisdictional rules. Its focus is on one of the perennial debates of the law of the sea, viz. the principle of flag state jurisdiction and its limits. More specifically, we inquire whether, in selected fields, there has been a trend towards a greater role of non-flag state jurisdiction, and if so, how that change has been effected. For reasons of space, the focus is on enforcement jurisdiction, and it is on four fields of substantive regulation—illegal fishing, terrorism, piracy, and illicit trafficking.5 With respect to these, we assess whether, in its quest for effective compliance, international law has come to accept the possibility of decentralized enforcement, by states other than the flag state, of internationally agreed standards. To do so, we begin by sketching out the general/traditional regime of maritime jurisdiction over ships, as shaped by UNCLOS and its side agreements, and then analyse post-UNCLOS developments. Notwithstanding the selective nature of the inquiry, the ground to be covered is huge, and the subsequent discussion is focused on broader lines rather than the minutiae (which we trustingly leave to the law of the sea experts). Selectivity notwithstanding, perhaps the attempt to step back and reflect on these broader lines usefully sets the stage for the subsequent, and more focused, contributions to the Oslo workshop.

Boston and Leiden: 207) 33–58 and 61–96, is an exception that proves the rule; but she, too, feels the need to treat general jurisdictional concepts separately from maritime jurisdictional titles (cf. chapters 2 and 3). 4  As Gavouneli notes, UNCLOS displays a “[s]triking the lack of any reference [. . .] to the traditional bases of jurisdiction”; Gavouneli, note 3 at 33. 5  In fact, only three of them have been covered: see below, III.d.

Non-flag States As Guardians Of The Maritime Order



21

The Traditional Regime: A Sketch

The ‘traditional regime’ of jurisdiction at sea is a vague concept used here as term of convenience seeking to describe the mélange of jurisdictional provisions set out in, or sanctioned by, the 1982 Law of the Sea Convention. As this description suggests, it denotes no clear-cut code of jurisdictional provisions, but rather a range of principles, rules and exceptions that reflect competing perspectives on maritime governance, as they emerged in the second half of the 20th century. The traditional regime is by no means static: it has evolved over time and—as the subsequent sections demonstrate—remains caught in a process of constant adaption and re-negotiation. However, in the process of constant evolution, the ‘1982 acquis’ constitutes a relevant median point: a uniquely sophisticated and fine-tuned sectoral regime of jurisdictional arrangements that reflects a (no doubt fragile and temporary) balance between different strategies for the orderly management of the seas. The subsequent paragraphs sketch out this regime and thus clarify the status quo against which recent developments can be assessed. The Principle: Exclusive Flag State Jurisdiction The principle of flag-State jurisdiction provides the starting-point of the analysis. It is reflected in UNCLOS Article 92 et seq, and it is in principle exclusive. According to Article 92(1), Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. Before dealing with exceptions and implications, it is worth noting that from the perspective of general international law, the idea that on the high seas the diverse interests held in a ship should be subject to regulation by one state— and one state only—presents a major normative achievement: the flag links the ship to a particular state, and this link supersedes other links, including other traditional categories such as ownership or nationality of seafarers,6 or more recent grounds justifying assertions of jurisdiction in other fields such as effects or impact. In the words of ITLOS, in the M/V Saiga Case No. 2, “[T]he ship, everything on it, and every person involved or interested in its operations 6  But cf. draft Art. 18 of the ILC’s 2006 text on diplomatic protection that valiantly seeks to protect the autonomous right of states of nationality to bring separate claims on behalf of ‘their’ seafarers, irrespective of flag state action.

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are treated as an entity linked to the flag State” and that “[T]he nationalities of these persons are not relevant”.7 As long as ships were treated as floating parts of a state’s territory, this seemed all fairly straightforward (and plausible); but the principle of exclusive flag state jurisdiction survived (and flourished in) the ‘post-territorial’ era of shipping, during which it continues to be ‘fiercely protected’.8 While all this may seem trite to the experts, from a generalist perspective, it is quite remarkable. It achieves what in other areas of international law has been a long-standing, but ultimately lost, cause: the allocation of regulatory competence to one particular actor, so to avoid (in the words of the ICJ) “[A]n atmosphere of confusion and insecurity in international [. . .] relations”.9 All this is all the more remarkable because international law has been extremely cautious in regulating the nationality of ships. Article 91 relies on what—across the board of nationality regimes—may be international law’s favourite criterion, that of a ‘genuine link’ between ship and state: Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.10 As in other fields,11 this criterion is intended to (as observed by ITLOS) “[S]ecure [the] more effective implementation of the duties of the [authorised] 7  M/V Saiga Case (No.2) (Saint Vincent and the Grenadines v. Guinea), Judgment, International Tribunal for the Law of the Sea, 1 July 1999, § 106. See also Reparation for Injuries Suffered in the Service of the United Nations Case, Diss.Op. Hackworth and Badawi Pasha, ICJ Rep. (1949), 202 and 206–207. 8  C. Goodman “Flag State Responsibility in International Fisheries Law: Effective fact, creative fiction, or further work required?” (2009) 23 Australian and New Zealand Maritime Law Journal 157–169, at 166. 9  Barcelona Traction, ICJ Reports 1970, 3, 47 (para. 96). The ICJ’s decision in that case sought to provide for clear rules governing the nationality of corporations; but when looking back after almost four and a half decades, it is difficult to avoid the impression that it failed. 10  Emphasis added. Cf. Constitution of the Maritime Safety Committee of the InterGovernmental Maritime Consultative Organization Case, Advisory Opinion, ICJ Rep. (1960), 171. 11  See ICJ Reports 1955, 4, 23: “According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is the legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments,

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State” (in this case the flag state), but “not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States“.12 However, long-standing attempts to fill the vague requirement of a genuine link with concrete meaning—in successive comprehensive law of the sea treaties and the unpopular 1986 Registration Convention—have remained largely unsuccessful. In Tomimaru, ITLOS stressed that the nationality of a vessel was independent of ownership, thus renouncing a potential, and a little more tangible, linkage.13 More generally, in Saiga, it had formulated in the broadest of terms that “[T]he determination of the criteria [. . .] for granting and withdrawing nationality to ships are matters within the exclusive jurisdiction of the flag State”.14 If looked at from the perspective of general international law, the resulting regime of jurisdiction over ships is quite unusual: one particular state is granted exclusive jurisdiction; but the jurisdictional link justifying this exclusive regulatory authority is neither linked to tangible factors (territory, ownership, nationality of crewmen), nor is it normatively specified through internationally agreed standards. While resulting in legal clarity, the concept of exclusive flag state jurisdiction thus comes at a risk: the risk of under-regulation if the one competent actor fails to regulate. This risk is structural as much as it is obvious; and it is highlighted (dare one say: ‘flagged’ up) in debates about flags of convenience, open registers and about the outsourcing of state authority to classification societies for whom effective compliance with ambitious international standards may not always be the only priority.

together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the state conferring nationality than with that of any other state. Conferred by a state, it only entitles that state to exercise protection vis-à-vis another state, if it constitutes a translation into juridical terms of the individual’s connection which has made him its national”. Draft Art. 4 of the ILC’s text on diplomatic protection seeks to concretize the genuine link requirement by listing specific links that would be sufficient for nationality to be opposable. Draft Art. 9 (addressing the diplomatic claims on behalf of corporations) recognizes an exception to the incorporation rule if the link is manifestly ‘non-genuine’. In some way or another, genuineness remains relevant. 12  M/V Saiga Case (No. 2), § 83. 13  Tomimaru (Japan v Russia), Prompt Release, at § 70: “Confiscation changes the ownership of a vessel but ownership of a vessel and the nationality of a vessel are different issues.” 14  M/V Saiga Case (No. 2), § 65.

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Containment Strategies: General Considerations While unable to tackle the core of the problem (or agreeing on alternatives to flag state jurisdiction), for centuries international lawyers have sought to contain its symptoms. Over time, different containment strategies have been pursued. The traditional regime set out in UNCLOS and related agreements would seem to rely on three of these: First, the progressive shrinking of the geographical scope of flag state jurisdiction: then as now, flag state jurisdiction remains a doctrine for the high seas; but creeping coastal state jurisdiction over a widened territorial sea and novel intermediary zones have ‘shrunk’ the high seas. That strategy—as well as its manifold implications—have been discussed in depth elsewhere15 and will be taken for granted here. Second, the gradual agreement on ‘performance requirements’ for flag states: these remain at relative liberty to grant nationality; but increasingly flag state status comes at a price.16 As in other fields,17 international law moves towards a regulatory approach that ties privileged status to heightened responsibility. Flag state status—including its corollary, exclusive jurisdiction—is thus preserved, but gradually molded. This second strategy is reflected in Article 94,18 15  See notably R. Wolfrum Die Internationalisierung staatsfreier Räume (Springer Verlag, Berlin: 1984) 632; Gavouneli, note 3 at pp. 59–130. 16  Mansell provides many details: see J.N.K. Mansell Flag State Responsibility: Historical Development and Contemporary Issus (Springer Verlag, Berlin: 2009) pp. 53–69. 17  Some say this is the crucial normative development of the discipline as a whole: see A.-M. Slaughter and W. Burke-White “The Future of International Law is Domestic (or, The European Way of Law)” (2006) 47 Harvard International Law Journal 327. 18  Notwithstanding its length, Art. 94 remains fragmentary:  “1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.  2. In particular every State shall: (a) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and (b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.  3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to: (a) the construction, equipment and seaworthiness of ships; (b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments; (c) the use of signals, the maintenance of communications and the prevention of collisions.  4. Such measures shall include those necessary to ensure: (a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment

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which sets out general (and generally vague) duties of flag states, as well as in sectorial provisions such as UNCLOS Article 217; and it gains increased traction through the inclusion of dynamic references to ‘generally agreed standards’ adopted outside UNCLOS, which (according to what may be a law of normativity) over time tend to increase in density. Third, in addition to limiting the spatial reach of high seas freedoms and conditioning flag state status, international law of course can recognise enforcement rights of other (non-flag) states. Unlike the previous two strategies which aim at either the spatial reach or the normative content of flag state jurisdiction, this third strategy of addressing weaknesses of exclusive flag state competence directly challenges the exclusivity of flag state enforcement. It allows for a wider circle of states to enforce international legal rules; but at the same time risks affecting the benefits of a regime originally built on exclusive flag state jurisdiction. Instances of non-flag state enforcement (to use the technical, if horrible, term) have been debated for centuries, and recent debates have seen a move towards more concerted efforts and a broadening of non-flag state enforcement powers. These are the focus of the subsequent discussion. Before addressing details, it may be useful to distinguish different modalities of non-flag state enforcement.

and instruments as are appropriate for the safe navigation of the ship; (b) that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship; (c) that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio.  5. In taking the measures called for in paragraphs 3 and 4 each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance.  6. A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation.  7. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.”

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In Particular: Modalities of Non-Flag State Enforcement The principle of exclusive flag state jurisdiction has always been too contentious to be absolute. Exceptions have long been discussed, and the 1982 acquis recognises a number them. It does so in various ways: The most obvious distinction is between explicit and implied exceptions. Beyond that, exceptions differ with respect to the designataire of authority: some permit enforcement by all states, others single out particular categories of states. Combining these two distinctions, three types of exceptions seem relevant for our purposes: (i) Article 110 expressly recognises a right of visit, of all non-flag states, in respect of a range of defined cases. Under the terms of the provision (which defines conditions, procedure and limits), Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109; (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. These instances, which remain “few and far between”,19 give effect to the overarching interest in permitting all states, irrespective of any tangible link, to enforce certain minimum forms of order, including the interest in ascertaining the nationality of ships. With respect to the most prominent of these instances, piracy, Article 105 spells out the universal enforcement rights of all states in greater detail and expressly recognises a right of seizure and arrest as well as the adjudicatory jurisdiction of the arresting state’s courts. Because of this regulatory depth, as well as the historical background of suppressive measures against hostes humani generis, piracy has come to be seen as the model exception to flag state jurisdiction—and indeed as a forerunner to uni-

19  Goodman, note 8 at 166.

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versal jurisdiction schemes in other areas of international law.20 Agreement on this exception seems to have been facilitated by a range of conducive factors, though, among them the absence of a flag state, the narrow definition of the activity, and the strict limitation of universal enforcement powers to the high seas. (ii) In addition to universal enforcement rights, UNCLOS recognises that particular categories of states have a special role in enforcing standards. Their enforcement powers find their basis not in the general right of all states to uphold maritime order, but are based on the particular situation of a state with a pre-existing, individualised, link. Two settings can be distinguished: first, coastal states, under limited conditions, can see their jurisdictional competence extended to the high seas. Hot pursuit is the key example of such an extended enforcement power: under the conditions detailed in Article 111, it permits the use of proportionate action to apprehend and arrest ships that are suspected of having violated coastal state laws and regulations.21 While many side-issues remain disputed (constructive presence; multilateral hot pursuit by more than one pursuing state; relationship to the non-use of force), the concept as such is agreed and constitutes (in Tanaka’s helpful phrase) “[A] temporary extension of the coastal State’s jurisdiction onto the high seas”.22 While hot pursuit has long been recognised, it is not the only case of coastal states enforcement rights ‘spilling over’ onto the high seas: by way of illustration, the exceptional claim to self-defence on the high seas, while controversial,23 follows a similar logic; and read properly, problems relate not so much to the infringement of flag state competence than to the conditions under which self-defence is available. Moreover, Article 221 UNCLOS also deserves mentioning in this context. Paragraph 1 of this provision allows (coastal) states to take enforcement measures beyond their territorial sea in order to protect their coastline and other interest such as fishing, from pollution or a threat thereof in case of a maritime casualty.

20  See e.g. E. Kontorovich “ ‘A Guantánamo on the Sea’: The Difficulty of Prosecuting Pirates and Terrorists” (2010) 98 California Law Review 243. At 244, the author notes perceptively: “The international law regarding piracy provides a uniquely favorable framework for its suppression.” 21  H. Caminos provides a helpful survey and many further references: “Hot Pursuit” in Max Planck Encyclopedia of Public International Law available at . 22  Y. Tanaka The International Law of the Sea (Cambridge University Press, Cambridge: 2012) 163. 23  R.G. Rayfuse Non-Flag State Enforcement in High Seas Fisheries (Nijhoff, Leiden: 2004), 59.

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The second category of a particular group of states singled out is that of port states. In terms of jurisdiction, port states have an obvious connection with the vessel against which enforcement measures are to be directed, which suggests that their jurisdictional rights need not be rationalised as an exception to flag state jurisdiction. However, as in other fields—with human rights requiring the exercise of jurisdiction over suspects present on the territory as a high profile example24—port state jurisdiction has been consciously construed to “further the interests of the international community”25 in combating conduct that occurred outside the port state’s territory or maritime spheres of influence, which may justify its inclusion here. Article 218 expressly recognises the custodial role of port states by enshrining their right to take enforcement action in response to illegal discharges occurring outside their own maritime zones.26 As with hot pursuit, this enforcement competence is regulated and limited in some detail (Part XII/7). Perhaps more importantly, it is formulated as a right of port states, not a duty. And at least within UNCLOS, port state enforcement is developed, not as a general concept, but in the limited context of Part XII addressing matters of marine environmental concerns. Both factors limit the effectiveness, at least within UNCLOS, of port state enforcement. (iii) Finally, and perhaps most importantly, as an integrated regime, UNCLOS ‘sanctions’ agreement on other exceptions to the flag state principle in some areas actively calls for further negotiations on such matters. As regards general exceptions, Article 110 begins by referring to “[A]cts of interference [with foreign ships] derive[d] from powers conferred by treaty”. Similarly, sectorial provisions such as UNCLOS Article 211 call on states to agree on international standards outside and systematically (and dynamically) integrate conduct conforming to such agreed standards to be in line with UNCLOS. And even in the absence of express references, the UNCLOS acquis of course is subject to hierarchically superior regimes, notably obligations flowing from the UN

24  See e.g. Art. 5(2) of the Convention against Torture: “Each State Party shall [. . .] take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.” 25  E.J. Molenaar: “Port State Jurisdiction” in Max Planck Encyclopedia of Public International Law available at para. 2. 26  For details see D. König Durchsetzung internationaler Bestands- und Umweltschutzvor­ schriften auf Hoher See im Interesse der Staatengemeinschaft (Duncker & Humblot, Berlin: 1990) 197–201; T.L. McDorman “Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea Convention” (1997) 28 Journal of Maritime Law and Commerce 305–22.

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Charter,27 including those concretised through binding Security Council resolutions. All this integrates UNCLOS into the wider normative context, in a manner common to many framework agreements—a feature discussed in depth in recent debates about systemic integration.28 With respect to nonflag state enforcement, it permits for the dynamic evolution—and constant adaptation—of the 1982 acquis. Even by 1982 (or by the time of UNCLOS’ entry into force in 1994), states had made ample use of this normative flexibility. SC Resolutions relating to Rhodesia had called upon the UK to enforce embargoes against foreign ships.29 As for special treaties in the sense of Article 110, various ‘anti-liquor’ conventions of the 1920s sought to enable the effective enforcement, by US ships, of its prohibition laws against foreign vessels.30 Earlier still, under the terms of the 1884 Submarine Cables Convention, states had agreed on a general (if qualified) right, of all treaty parties, to take measures for the protection of submarine cables. Beyond these special (and in some instances: niche) treaties, special treaties for the prevention of illicit trafficking would permit ‘acts of interference [with foreign ships]’. As regards multilateral agreements, the 1961 Convention on Narcotic Drugs as well as the 1971 Convention on Psychotropic Substances would give effect to the international community’s interest in suppressing drug trafficking.31 Article 108 UNCLOS reflects the general desire to facilitate international cooperation against illicit trafficking (without however granting states self-standing enforcement rights). Agreed after the completion of negotiations, the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances eventually was to go one step further by contemplating, in its Article 17, enforcement by non-flag states.

27  See Art. 103 of the UN Charter. The Charter’s superior status extends to obligations imposed by SC resolutions, as clarified in the Lockerbie case. 28  See C. McLachlan “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention” (2005) 54 International and Comparative Law Quarterly 279; P. Merkouris Article 31(3)(c) of the VCLT and the Principle of Systemic Integration (PhD thesis Queen Mary Mary University of London, London: 2010) p. 238; D. French “Treaty Interpretation and the Incorporation of Extraneous Legal Rules” (2006) 55 International and Comparative Law Quarterly 281. On UNCLOS specifically see A. Boyle “Further Development of the 1982 Law of the Sea Convention: Mechanisms for Change” (2005) 54 International and Comparative Law Quarterly 563. 29  SC Res 266 (1966). 30  Rayfuse labels them the “classic example”: Rayfuse, note 23 at 58. 31  R.R. Churchill and A.V. Lowe The Law of the Sea 3rd (Manchester University Press, Manchester: 1990) 219.

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However, even this more ambitious regime, just as Article 108(2), remained premised on the notion of prior flag state consent.32 Interim Conclusions The 1982 acquis reflects the tension between adherence to a core principle robustly defended—exclusive flag state jurisdiction—and the desire to permit specific enforcement rights of other states in a broader interest. By and large, it upholds the principle, if in a spatially restricted manner and conditioned by firmer performance requirements demanding flag states to accept minimum standards. However, the 1982 Convention also spells out special enforcement rights of non-flag states—some universal, benefiting all states, others specifically allocated to port or coastal states. And by incorporating references to special treaties and internationally agreed standards, UNCLOS automatically permits for this balance to be constantly renegotiated. Against the background thus sketched out, it is now possible to turn to subsequent developments and to assess whether and in how far they have affected the 1982 acquis.

Recent Trends: Towards a Greater Role of Non-Flag States in the Enforcement of Global Maritime Interests?

Notwithstanding comments about the “failure of flag State jurisdiction”,33 the principle remains robust, and is unlikely to be replaced by any competing approach. Yet, as in many other fields of international law,34 principles tend not be replaced—but weakened by increased resort to exceptions. This is what seems to be happening with respect to flag state jurisdiction: in many subareas, international rules now seem to qualify the flag state’s exclusive competence to enforce the law of the sea. The subsequent sections examine four such sub-areas in which pressure towards effective enforcement of international standards seems to have resulted in increased exceptions—namely as part of international efforts to suppress IUU fishing, illicit trafficking, piracy as well as terrorism and proliferation. In highlighting how the contemporary law of the sea has responded to these various phenomena, we do not aim for

32  Tanaka gives a succinct account: Tanaka, note 23 at 167–169. 33  Rayfuse, note 23 at 30. 34  The point is likely to be a general one. As regards rules of nationality/jurisdiction, suffice it to mention the undermining, through special investment treaties, of the residual regime governing diplomatic protection of companies.

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an exhaustive analysis, but rather hope to highlight the variety of regulatory avenues chosen to improve the effectiveness of the international regime. Attempts to Suppress IUU Fishing Illegal, unreported and unregulated fishing does not always reach the mainstream headlines, but has rightly been recognised as a major threat to oceans governance.35 Driven by a range of factors, IUU is enabled by poor compliance, by flag states, with their responsibilities. In addition, at least the fisheries regime developed by UNCLOS (Arts 61 et seq for the EEZ, Part VII/2 for the high seas) is not a model of clarity, depending as it does on implementation arrangements. In their combination, the two factors have left a “[L]acuna [. . .] allowing flag States that were unwilling or unable to regulate their fishing vessels on the high seas to prevent any action from being taken against these vessels”.36 Looked at from a slightly different perspective, UNCLOS provisions in this field have been described as an “unfinished agenda”,37 and normative solutions have had to be found elsewhere. For about two decades, the search for normative solutions has been going on in earnest. The FAO 2001 Plan of Action38 occupies an important place as a consensus document that recognises and diagnoses the problem and identifies solutions. It contains separate lists of requirements for flag states, coastal states and port states; it endorses the 1995 Fish Stocks Agreement as the most prominent attempt to supplant the 1982 Convention (to be addressed below), 35   In addition to selective footnote references, the following draws on M. Hayashi “Enforcement by non-flag States on the High Seas under the 1995 Agreement on Straddling and Highly Migratory Fish Stocks”(1996) 9 Georgetown International Environmental Law Review 1; D.M. Sodik “Post-LOSC Legal Instruments and Measures to address IUU Fishing” (2009) 15 Asian yearbook of international law 71; R. Rayfuse “Non-flag State Enforcement and Protection of the Marine Environment: Responding to IUU Fishing” in M.H. Nordquist, T.T.B. Koh and J.N. Moore (eds.) Freedom of seas, passage rights and the 1982 Law of the Sea Convention (Nijhoff, Leiden: 2009) 573; M. Hayashi “International Measures to Combat Illegal, Unreported and Unregulated (IUU) Fishing and Japan” (2008) 51 The Japanese Yearbook of International Law 57. 36  Goodman, note 8 at 162. 37  D. Freestone “Fisheries, High Seas” in Max Planck Encyclopedia of Public International Law available at , para. 11. 38  The 2001 Plan of Action is available at ; See D.J. Doulman “FAO Action to Combat IUU Fishing: Scope of Initiatives and Constraints on Implementation” in D. Vidas (ed.) Law, Technology and Science for Oceans in Globalisation: IUU F oil pollution, Bioprospecting, Outer Continental Shelf (Nijhoff, Leiden and Boston: 2010) 131.

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and it seeks to promote the adoption of further regional agreements. All that, however, it does on the basis of a voluntary code, not by laying down binding obligations—which would need to be developed separately. Over the past decades a range of such separate measures have indeed been adopted, partly in pursuance of the FAO’s Plan of Action, partly anticipating or developing it. From the perspective of this paper, it is worth noting that for a long time the main focus of the regulatory drive has been, not on challenging the exclusivity of flag state authority, but on imposing stricter requirements on flag states.39 The international community’s primary ‘containment strategy’ has been to strengthen and condition the role of flag states, and this strategy has been pursued through proper international law-making (eg under the 1993 FAO Compliance Agreement and to a lesser extent the 1995 (Straddling) Fish Stocks Agreement as well as IMO guidelines). It has taken various forms, from measures seeking to complicate re-flagging to attempts, notably within the IMO, to move to a more effective monitoring of standards. But all of this concerns the density of flag state obligations, not enforcement by other states. As regards non-flag states, there have been important developments too. In line with the general categories outlined above, two main aspects of reform can be distinguished.40 At-Sea Inspections by Non-Flag States A large number of treaties move towards a right of states other than the flag state to enforce international fishing regulations. At the global level, the 1995 Fish Stocks Agreement (which applies to straddling stocks, not to high seas fisheries generally) is the most prominent.41 Its complex attempt at improving enforcement without too much infringing upon flag state jurisdiction has been 39  For details see K. Erikstein and J. Swan “Voluntary Guidelines for Flag State Performance: a New Tool to Conquer IUU Fishing” (2014) 29 International Journal of Marine and Coastal Law 116. 40  Strictly unilateral measures have provided the impetus for law reform, but continue to be viewed with suspicion. Creative penalties and bonds that take account of the gravity of the offence e.g. have been successfully challenged by flag states in prompt release proceedings: see notably the “Volga Case”; ITLOS, The Volga (No. 11) Case, (Russian Federation v. Australia), Judgment, December 23, 2002. 41  It has prompted a wealth of literature, among which J. Ziemer Das gemeinsame Interesse an einer Regelung der Hochseefischerei. Dargestellt am Beispiel des Fish Stocks Agreement (Duncker & Humblot, Berlin: 2000) continues to stand out. See further F. Orrego Vicuna The Changing Law of High Sea Fisheries (Cambridge University Press, Cambridge: 2004). Tanaka provides an excellent (if perhaps overly cautious) overview: Tanka, note 23 at 242 et seq.

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discussed in depth elsewhere.42 In essence, the 1995 re-balancing is based on three considerations: First, the 1995 Fish Stocks Agreements ratifies and privileges boarding and inspection schemes agreed in the framework of regional fisheries management organizations. Second, it provides for a residual scheme allowing non-flag states to inspect vessels suspected of violating fisheries standards, and to notify the flag state. Third, it ostensibly maintains the primacy of flag state enforcement as flag states can, at any time, step in, take action themselves and procure the release of ‘their’ vessel. And fourth, remarkably, the Fish Stocks Agreement goes some way in applying enforcement schemes agreed within RFMOs to third parties that have not agreed to them (but are bound by the FSA). All this has been much discussed, as has been the question whether arts. 20–23 FSA can be qualified as a true exception to the flag state principle. What seems undisputable is that—even if not a true exception—the arrangement smoothens the application of enforcement measures by states other than the flag state and thus facilitates (as noted by Rosemary Rayfuse) “non flag State seizure and arrest” of vessels.43 It may be added that, both before and after the adoption of the FSA, large numbers of regional schemes for atsea inspection have been agreed, including under NPAFC, CCAMLR, NAFO and NEAFC, with variations of degree. The latter two regional arrangements stretch the limits of treaty law in expressly permitting the inspection of third party vessels, even where their objective effect cannot be explained away as a side-effect of the FSA.44 In summary, it seems fair to say that since the adoption of UNCLOS, there has been a push towards a greater role for non-flag state enforcement in defence of international fishing standards, but that the continued appeal of the flag state principle has resulted in overly complex provisions that fine-tune the balance in a very nuanced manner.

42  See further D. König “The Protection of Marine Living Resources: the 1995 Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks” in Z. Tao and R. Wolfrum (eds.) Implementing international environmental law in Germany and China (Kluwer Law International, The Hague: 2001) 75; T. Henriksen et al. (ed.) Law and politics in ocean governance: The UN Fish Stocks Agreement and regional fisheries management regimes (Nijhoff, Boston and Leiden: 2006); R.V. van Pumbroeck (ed.), W. Edeson et al., Legislating for Sustainable Fisheries: A Guide to Implementing the 1993 FAO Compliance Agreement and 1995 UN Fish Stocks Agreement into National Law (World Bank, Washington D.C.: 2001). 43  Rayfuse, note 23 at 76. 44  By contrast, as Harrison notes, the FSA itself, in its enforcement provisions, maintains the distinction between parties and third states: J. Harrison Making the Law of the Sea (Cambridge University Press, Cambridge: 2012) p. 106.

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Port State Measures As a further strategy against IUU fishing, states have firmed up existing rules on port state control. While perhaps not discussed in the same detail, the various new rules are equally remarkable. Put simply, over the past two decades, fisheries organisations and states have activated the notion of port state control and taken steps towards a mandatory regime that not only empowers, but requires port state action. As with non-flag state measures, the 1995 FSA constitutes an important milestone. Its Article 23 embraces the language of port state duties. It remains general in some respects, but does spell out a range of ‘postinspection’ measures available to port states, notably a prohibition on landings. As regards more targeted action, the 2009 FAO Agreement on Port State Measures to Combat IUU Fishing consolidates the emerging approach. While the devil (as with all other arrangements) is in the detail, its Article 9(4) is particularly relevant: it envisages a duty of port states to deny IUU vessels entry into port. This is further concretised under mandatory certification schemes imposed by RFMOs, among them the CCAMLR Documentation Scheme for Toothfish (which, dare one say, has teeth). This scheme makes entry into port and the landing of fish dependent on the submission of a catch document—an approach reminiscent of registration provisions relating the diamonds and or artefacts. It is hailed as a step towards greater effectiveness, but also requires to be justified under world trade law disciplines. It is clear from all this that at least within integrated regional organisations, port state control can become (in the words of the 2009 FAO Convention) a “[P]owerful [. . .] means of preventing, deterring and eliminating IUU fishing”.45 Of the various strategies pursued, it is less open to principled opposition than at-sea inspection, and thus perhaps the more acceptable way towards the suppression of IUU fishing. Interim Conclusions It is clear from the foregoing that the fight against IUU fishing has by now gained considerable momentum. The principle of exclusive flag state jurisdiction precludes quick agreement on unilateral coercion and on non-flag state measures at sea: in this respect, advocates of more robust enforcement still meet with staunch opposition, and efficiency gains, at least in global agreements, require concerted initiatives. At the regional level, nuanced arrangements have been agreed, mainly relying on port state control and greater dissemination. As noted above, these need not be seen as true exceptions to the flag state principle, but facilitate concrete measures against its excessive invocation. 45  2009 FAO Convention, Preamble.

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Attempts to Suppress Illicit Drug Trafficking Developments relating to illicit drug trafficking in many ways are similar, even if different avenues have been pursued. From a comparative perspective, international efforts to suppress illicit drug trafficking effectively were at a more advanced stage than in the field of IUU fishing, as UNCLOS Article 108 and existing agreements already recognised the need for effective international cooperation. But while Article 108 (1) requires all states to cooperate in the suppression of illicit traffic in drugs engaged in by ships on the high seas, Article108 (2) shows how firmly anchored the flag state principle still was at the time of UNCLOS’ drafting. Article 108(2) provides that “[a]ny State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.”46 The far more relevant “reverse scenario”, i.e. situations in which a state encounters a vessel flying another state’s flag on the high seas, suspects it of being engaged in illicit drug trafficking and contemplates a stop and search operation on the spot, was deliberately omitted in UNLCOS. Thus, as noted above, up until the 1988 Convention, any counter narcotics enforcement measures typically remained consent-based and required prior authorization by the flag state in individual instances. Developments since the negotiation and entry into force of UNCLOS can largely be seen as a quest to close the (glaring) enforcement gap left by UNCLOS and as a tentative move towards a greater, but still (clearly) sub-ordinate, role for non-flag state enforcement in the realm of illicit drug trafficking.

Multilateral Efforts to Facilitate At-Sea Counter-Narcotic Inspections by Non-Flag States The most important multilateral treaties signifying this development in the area of counter-drug trafficking are the 1988 UN Narcotics Convention and the 1995 Council of Europe Agreement on Illicit Traffic by Sea, implementing Article 17 of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Still, up until today and in spite of prominent calls for reform—consider e.g. the ECtHR’s Grand Chamber’s stipulations in Medvedyev47—a boarding regime akin to that of piracy (arts. 110, 105 UNCLOS) whereby every state may stop and board a pirate vessel encountered on the high seas does not exist in the area of illicit drug trafficking. The “inroads” created by the above-mentioned treaty regimes for loosening exclusive flag state jurisdiction in relation to narcotics offenses are far more subtle and indirect. 46  Emphasis added. 47  Medvedyev and others v France, ECtHR Grand Chamber (Judgement) 29 March 2010.

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The 1988 and the 1995 multilateral agreements, albeit they clearly aim to facilitate law enforcement operations in relation to illicit drug-trafficking, have not significantly affected the flag state principle or the exclusivity of flag state jurisdiction. Both treaties rely on flag-State consent which is to be issued ex ante, on a case-by-case basis and separately with respect to specific enforcement powers, i.e. the authorization to board a ship does not automatically entail the permission to search it, to seize its cargo or to arrest the crew, albeit this is often an issue of interpretation and controversy.48 Article 17 of the 1988 Convention lays out a framework for seeking flag-State consent to interdict, board and search a vessel if there are reasonable grounds to suspect that it is engaged in illicit traffic (17(3)) and to take further action if appropriate (17(4)).49 The way in which flag-State consent is to be sought is rather complicated. A state that suspects a vessel of being engaged in illicit drug trafficking may so notify the flag state, request confirmation of registry and if confirmed, request authorization from the flag state to take appropriate measures in regard to that vessel (17(3)).50 The 1995 Council of Europe Agreement on Illicit Traffic by Sea builds on the 1988 Convention and aims to implement Article 17 of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. According to its Article 6 “[w]here the intervening State has reasonable grounds to suspect that a vessel, which is flying the flag or displaying the marks of registry of another Party or bears any other indications of nationality of the vessel, is engaged in or being used for the commission of a relevant offence, the intervening state may request the authorisation of the flag state to stop and board the vessel in waters beyond the territorial sea of any Party, and to take some or all of the other actions specified in this Agreement. No such actions may be taken by virtue of this Agreement, without the authorisation of the flag State.”51 A qualification is added only in so far as Article 7 requires that “[t]he flag State shall immediately acknowledge receipt of a request for authorisation under Article 6 and shall communicate

48  See only Medvedyev, ECtHR Grand Chamber, 2011. 49  V. Lowe and A. Tzanakopoulus “Ships, Visit and Search” in Max Planck Encyclopedia of Public International Law available at , paras. 35–36. 50  D. Guilfoyle Shipping Interdiction and the Law of the Sea (Cambridge University Press, Cambridge: 2009) 84. 51  Emphasis added. According to Art. 8(1) “If the flag State grants the request, such authorisation may be made subject to conditions or limitations. Such conditions or limitations may, in particular, provide that the flag State’s express authorisation be given before any specified steps are taken by the intervening State.”

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a decision thereon as soon as possible and, wherever practicable, within four hours of receipt of the request.”52 The 1988 Convention contains a number of flag state jurisdiction protectors as well as certain qualifiers. Thus, the flag state is not obliged or expressly called upon to grant authorization; Article 17(4) indicates that authorization to intercept or board does not automatically include authorization to search or seize,53 and Article 17(5) expressly requires not to prejudice the commercial and legal interests of the flag state. On the other hand, arts. 17(7) and (9) require that parties respond ‘expeditiously’ to requests and consider entering “[B]ilateral or regional [interdiction] agreements [. . .] to enhance the [Convention’s] effectiveness”. In light of the object and purpose of the 1988 Convention and on the basis of a (progressive) dynamic interpretation that takes into consideration the Security Council’s recent qualification of (maritime) drug trafficking as a threat to the peace (Article 39 UN-Charter),54 it could possibly even be argued that any request for authorization based on reasonable grounds should be dealt with in good faith and denial of such a request would at least require an explanation. What is more, even in cases where authorization is granted, the scenario is depicted as an “agency constellation” whereby the boarding state, in the flag state’s (physical) absence from the scene, exercises flag state duties in lieu of the flag state.55 According to the Council of Europe “[M]easures taken against the vessels and persons on board [by the boarding state] may be deemed to have been taken as part of the proceedings of the flag State”.56 This “agency constellation” is further underpinned by the concept of preferential flag state jurisdiction to adjudicate,57 the non-displacement of the flag state’s laws during an interdiction by the boarding state and an underlying assumption that suspects arrested by the boarding state can simply be “handed over” to the flagState as if no change in jurisdiction was involved and without adherence to any extradition or otherwise formalized procedures that would normally apply if 52  Emphasis added. 53  Guilfoyle, note 50 at 84, citing Official Records: Narcotics Convention Conference, 29th meeting, UN Doc. E/CONF.82/C.2/SR.29, para. 8 and note paras. 108, 123–4. 54  SC Res. 2039 (2012). 55  Guilfyole, note 50 at 87. 56  Council of Europe, Explanatory Report: Agreement on Illicit Traffic by Sea Implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1994) para. 14, available at: (emphasis added). 57  See Article 4(1)(b)(ii) of the 1988 Convention.

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a person is transferred from on state to the other.58 Indeed, this is a recurrent feature of various non-flag state enforcement regimes that is reminiscent of a traditional perception of primary flag state jurisdiction that today—especially in light of the firmly established non-refoulement principle—can no longer be upheld without qualification. Against this backdrop, the 1988 and 1995 multilateral agreements have not done much more than addressing the highly relevant scenario that had been omitted in UNCLOS without, however, adding any significant substantive changes in the law other than paving the way for future (bilateral) agreements and creating additional impetus to enhance international cooperation regarding law enforcement against illicit drug trafficking.

Bilateral Agreements Facilitating At-Sea Inspections in the Counter-Narcotics Arena In addition, there are numerous important bilateral treaties such as the Agreement to Facilitate the Interdiction by the United States of Vessels of the United Kingdom Suspected of Trafficking in Drugs from 1981, the Treaty between the Kingdom of Spain and the Italian Republic to Combat Illicit Drug Trafficking at Sea from 1990,59 as well as various bilateral treaties between the US and Latin American and Caribbean states.60 Some of these bilateral agreements go much further than current multilateral efforts and have imposed limitations on the principle of exclusive flag state jurisdiction. The Agreement to Facilitate the Interdiction by the United States of Vessels of the United Kingdom Suspected of Trafficking in Drugs from 1981 is peculiar.61 It allows US authorities to intercept and board UK vessels (but not vice versa) even in cases in which no prior consent has been issued (ex post notification suffices), provided the relevant operations take place within pre-defined (but extensive) geographical high-seas areas, namely the Caribbean Sea, the Gulf of Mexico and all waters within 150 miles of the US Atlantic coast.62 Similarly, the 1990 Spanish–Italian Treaty also goes further than the Article 17 regime of the 1988 Convention. According to this treaty, if there is reasonable suspicion that “ships displaying the flag” of one party are engaged in smuggling offences 58  Guilfyole, note 50 at 86 et seq. See also A. Petrig, Human Rights and Law Enforcement at Sea—Arrest, Detention and Transfer of Piracy Suspects (Brill, Nijhoff: 2014). 59  1776 UNTS 229 (Spanish–Italian Treaty). 60  For an in-depth analysis see Guilfoyle, note 50 at 79 et seq. 61  1285 UNTS 197 (US–UK Exchange of Notes). 62  For suggestions for a narrower interpretation of the agreement see Guilfyole, note 50 at 79–80.

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outside territorial waters, “[E]ach party recognizes the other’s right to intervene [aboard] as its agent”. Moreover, as Article 5(2) indicates such authorization automatically spans the permission to “pursue, arrest and board” the other party’s flag vessels and “check documents, question persons on board and, if reasonable suspicion remains, search the ship, seize drugs and arrest the persons involved and [. . .] escort the ship to [. . .] port”. These comparably far reaching limitations on the principle of exclusive flag state jurisdiction notwithstanding, preferential jurisdiction to adjudicate remains with the flagState (Article 4(2)). In addition, the US has concluded bilateral counter-drug trafficking agreements with twenty-four Latin American and Caribbean States.63 These treaties vary in scope and content but significantly for purposes of the present analysis many of them contain consensual high-seas boarding regimes or at least include the possibility of presumed consent and facilitated authorization procedures. Thus, according to the US agreement with Guatemala consent must be requested but in the absence of any response and subject to a time limit of (in the case of this agreement) two hours “[T]he requesting Party will be deemed to have been authorized to board the suspect vessel for the purpose of inspecting [. . .] documents, questioning the persons on board, and searching the vessel to determine if it is engaged in illicit traffic.”64 A similar model—albeit with varying time limits—has been followed in other bilateral US agreements, namely the agreements concluded with Nicaragua, Honduras, Panama, Venezuela, Colombia, Barbados and Jamaica.65 Notably, the US agreements with Costa Rica and Haiti go even further. These agreements provide for automatic consent where boarding officials from the other state act upon reasonable suspicion.66 An additional albeit indirect limitation of exclusive flag state jurisdiction results from the fact that a number of these bilateral drug-interdiction agreements allow states to exercise law enforcement powers against drug trafficking 63  See < http://www.state.gov/s/l/2005/87199.htm>. As Klein has pointed out, however, “[I]n doing so, the United States did not seek to alter the exclusive flag state jurisdiction for this purpose, but instead effectively upheld it through the conclusion of a series of treaties”; N. Klein, Maritime Security and the Law of the Sea (Oxford University Press, Oxford: 2011), 134. 64   Art. 7(d) Agreement between the United States and Guatemala Concerning Cooperation to Suppress Illicit Traffic in Narcotic Drugs and Psychotropic Substances by Sea and Air 2003, available at . 65  Guilfoyle, note 50 at 89- 90; Klein, note 63, at 134 et seq. 66  Ibid., p. 90.

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vessels in the territorial sea of the coastal state, thereby multiplying the number actors that are entitled to carry out law enforcement operations in these waters. Legally, granting such a “pursue and entry-right” sometimes referred to as a right of “reverse hot pursuit”, does not raise any particular problems. Coastal states, according to UNCLOS Article 27(1)(d) have criminal jurisdiction regarding ships passing through the territorial sea “[I]f such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances” and nothing precludes them from bilaterally vesting this authority in other states. Again, treaty provisions vary in scope and content but notably for purposes of the present analysis, some coastal states have granted unlimited advance consent to intercept and board foreign vessels within their territorial waters.67 Interim Conclusions As is clear from the foregoing, there has been considerable pressure to admit non-flag state enforcement against illicit drug trafficking, but that pressure has met with organised resistance, especially on the national level. In this respect, there are similarities to the regime against IUU fishing. Unlike with respect to fishing, the various other containment strategies play a lesser role in relation to drug trafficking. Notably, there seems to be lesser reliance on attempts to specify and narrow down the duties of flag states regarding the prevention of illicit drug trafficking. The (revised) guidelines issued by the IMO “[f]or the prevention and suppression of the smuggling of drugs, psychotropic substances and precursor chemicals on ships engaged in international maritime traffic” are by and large directed at port states and shipping companies.68 The same holds true with regard to the provisions contained in chapter XI-2 of SOLAS, the ISPS Code developed by IMO, the ILO/IMO Code of Practice on Security in Ports and the WCO Framework of Standards to Secure and Facilitate Global Trade (SAFE Framework of Standards). These provisions aim primarily at enhanced cooperation between ships and port facilities to prevent and identify acts that threaten the security of maritime transport. Measures to Combat Piracy Recent measures adopted to fight piracy follow a logic that is different from that of the measures adopted to fight the other maritime threats examined so far. This difference is unsurprising because—as outlined above—the 1982 acquis already expressly recognised a general right to seize pirate ships on the 67  See list of agreements in Guilfoyle, note 50 at 88, 94. 68  MSC 82/24/Add.2, Annex 14; Resolution MSC.228(82) (adopted on 7 December 2006).

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high seas and arrest and prosecute piracy suspects.69 Against this backdrop there was no need to argue for the extension of non-flag state enforcement powers on the high seas, as these already existed. This should not be read to suggest that the international regime remained unchanged. Far from it: few areas have seen a renaissance comparable to that of (anti-) piracy regulation.

The Security Council as the Main Driver of the Expansion of Counter-Piracy Enforcement Powers Since 2008 increasing pirate activities in Somalia’s territorial waters and the larger Gulf of Aden region have drawn international attention to piracy and the legally distinct phenomenon of armed robbery at sea.70 A number of multinational counter-piracy missions, namely European Union Operation Atalanta, NATO Operation Ocean Shield and the United States-led Combined Task Force 151, have been deployed to the region. Simultaneously, various Chapter VIIbased Security Council Resolutions have extended law enforcement powers into Somalia’s territorial waters.71 All this marked a decisive shift from the treatment of piracy throughout most of the 20th century. Indeed, during the 20th century there was a prevailing perception that piracy amounted to an obsolete phenomenon. During the actual drafting stages of UNCLOS the provisions on piracy received very little attention and for the most part, UNCLOS-rules relating to piracy were simply imported from earlier instruments.72 The upsurge of piracy between 2008 and 2012 instantly exposed many of the loopholes and weaknesses in the legal framework on piracy. The Security Council soon emerged as the principal driver in remedying these deficiencies in order to enable more efficient counterpiracy operations. Simultaneous regional initiatives, most importantly the socalled Djibouti Code of Conduct, which unlike its Asian pendant, the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), is not legally binding, marked important steps in the

69  UNCLOS was based on the piracy provisions contained in the 1958 Convention on the High Seas which in turn had been influenced by the 1932 Harvard Draft Convention on Piracy. 70  See only United Nations, Monitoring Group on Somalia, Report, Dec. 10, 2008, para. 126; ICC-IMB, Piracy Report 2009, p. 25. 71  R. Geiß and A. Petrig Piracy and Armed Robbery at Sea: The Legal Framework for CounterPiracy Operations in Somalia and the Gulf of Aden (Oxford University Press, Oxford et al.: 2011) at 76. 72  Ibid., at 55–85.

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furtherance of regional cooperation but did not bring about any substantive changes in the law.73 Principally by virtue of Resolutions 1846, 1851, 1997 and 1918 the Security Council established a comprehensive enforcement regime for the high seas, Somalia’s territorial waters and Somali mainland.74 In doing so the Security Council relied in parallel on an invitation issued by the Somali Transitional government and a qualification of the specific situation in Somalia as a threat to international peace under Article 39 of the UN-Charter. At the time the Security Council deliberately refrained from qualifying piracy as such as a threat to international peace, albeit it has done so more recently with respect to piracy occurring off the West-African coast.75 With respect to law enforcement operations on the high seas the UNCLOS regime has remained fully intact and unaffected by the various Security Council Resolutions. In addition and given that UNCLOS, unlike earlier draft Conventions, does not grant a right to reverse hot pursuit from the high seas into the territorial waters of a costal state, the Security Council through Resolutions 1816, 1846 and 1897 has authorized states to exercise UNCLOS Articles 110 and 105 high-seas enforcement powers also within Somalia’s territorial waters and to do so not only in relation to pirate vessels in the sense of UNCLOS Article 103 but also against vessels suspected of having committed “armed robbery at sea”.76 This latter extension was necessary because the crime of piracy, as defined in UNCLOS Article 101, by definition can only occur if committed on the high seas, i.e. acts that look exactly like piracy but are committed within a state’s territorial waters would not qualify as piracy. Moreover, even though the Security Council Resolutions invoke the standard formula of “all necessary means” which is commonly associated with a general authorization and a wide margin of discretion to employ military means; the relevant operative paragraphs require that enforcement powers be carried out “in a manner consistent with action permitted on the high seas”.77 Therefore, the Security Council regime applicable in Somalia’s territorial waters does not go beyond the powers granted in arts. 110, 105 UNCLOS, namely a right to visit which must logically include a right to stop and board a vessel 73  Code of Conduct Concerning the Repression of Piracy and Armed Robbery against Ships in the Western Indian Ocean and the Gulf of Aden, reproduced in Geiß and Petrig, note 71, at 284 et seq. 74  See Geiß and Petrig, note 71 at 83. 75  SC Res. 2039 (2012), preambular para. 18. 76  Geiß and Petrig, note 71 at 165–167. 77  SC Res. 1846 (2008), para. 10 (b).

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and which arguably also contains a right to search (Article 110) as well as a right to arrest persons on board a pirate ship, to seize property on board and to seize pirate ships (Article 105). Albeit this is not mentioned explicitly, the enforcement powers granted by UNCLOS also include the use of force in as far as it may be necessary to stop and search a vessel or to arrest persons on board.78 Notably, the Security Council’s readiness to significantly expand the range of enforcement powers is not mirrored on the level of adjudicative jurisdiction. Indeed, as far as adjudicative jurisdiction is concerned none of the various resolutions goes beyond calls for enhanced cooperation in law enforcement matters and solemn invocations of a meshwork of international treaties pertaining to crimes committed at sea. Interim Conclusion Even though regulative endeavours in relation to counter-piracy operations pursue a similar objective to those in the area of counter-drug trafficking and illicit fishing—namely to close enforcement gaps and to enable more efficient law enforcement operations—there are significant differences as to how that objective has been pursued. In light of pre-existing high-seas enforcement powers of non-flag states in the area of piracy, there was no need to invent nonflag state jurisdiction from scratch but merely to expand it geographically into Somalia’s territorial waters and to the piracy-related phenomenon of armed robbery at sea. Unlike in the other areas and in view of the urgency of the problem in the Gulf of Aden region this has been achieved through Security Council actions rather than bi- or multilateral agreements.

Counter-Terrorism and Measures to Prevent the Proliferation of Weapons of Mass Destruction at Sea The central multilateral treaty covering terrorist acts at sea is the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, the so-called SUA Convention.79 Adopted in Rome in 1988 against the backdrop of the Achille Lauro incident and modelled on counter-terrorism treaties in the area of international aviation, the SUA Convention lays out a legal regime obliging states to suppress various unlawful acts against the safety of maritime navigation, without, however, including a boarding regime or in any

78  ITLOS, The M/V Saiga (No. 2) Case, (Saint Vincent and the Grenadines v. Guinea), Judgement, July 1, 1999, para. 155. 79  1678 UNTS 201 / [1993] ATS 10 / 27 ILM 672 (1988). See Klein, note 63 at 151 et seq.

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way encroaching on the principle of exclusive flag state jurisdiction.80 This changed with the events of 9/11 and in particular with respect to a specific, exceptionally dangerous type of terrorist activity, namely the proliferation of weapons of mass destruction and relevant matériel.81

Multilateral Efforts to Facilitate At-Sea Counter-Proliferation Inspections by Non-Flag States In 2005 the Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation was concluded under the auspices of the IMO.82 The 2005 Protocol extended the catalogue of unlawful acts with a particular focus on weapons of mass destruction and proliferation activities (Article 3bis). More importantly for purposes of the present analysis, however, it has added a new boarding regime in Article 8bis. Article 8bis confirms the general principle and exclusivity of flag-State jurisdiction.83 Thus, para. 5 points out that as a default rule flag-State consent has to be sought,84 it explicitly 80  M. Halberstam, “Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety” (1988) 82 American Journal of International Law, 269, 273. 81  Klein, note 63 at 147; D. Guilfoyle “Maritime Interdiction of Weapons of Mass Destruction” (2007) 12 Journal of Conflict & Security Law 3; S. Kaye, Maritime security in the post-9/11 world—a new creeping jurisdiction in the law of the sea?, in: C. Schofield et al. (eds.), The Limits of Maritime Jurisdiction, (Nijhoff, Leiden: 2014), pp. 327–348. 82  N. Klein “The Right of Visit and the 2005 Protocol on the Suppression of Unlawful Acts against the Safety of Maritime Navigation” (2007) 35 Denver Journal of International Law & Politics 288–290. 83  Lowe makes that point succinctly, see his chapter on Jurisdiction, V. Lowe “Jurisdiction” in M.D. Evans (ed.) International Law 2nd (Oxford University Press, Oxford: 2006) 335–360. 84  Art. 8bis, para. 5 2005 SUA Protocol: “Whenever law enforcement or other authorized officials of a State Party (“the requesting Party”) encounter a ship flying the flag or displaying marks of registry of another State Party [. . .] located seaward of any State’s territorial sea, and the requesting Party has reasonable grounds to suspect that the ship or a person on board the ship has been, is or is about to be involved in the commission of an offence set forth in article 3, 3bis, 3ter or 3quater, and the requesting Party desires to board, (a) it shall request, in accordance with paragraphs 1 and 2 that the first Party confirm the claim of nationality, and (b) if nationality is confirmed, the requesting Party shall ask the first Party (hereinafter referred to as “the flag State”) for authorization to board and to take appropriate measures with regard to that ship which may include stopping, boarding and searching the ship, its cargo and persons on board, and questioning the persons on board in order to determine if an offence . . . has been, is being or is about to be committed, and (c) the flag State shall either:

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acknowledges that such consent may be withheld and that without the express authorization of the flag state “[T]he requesting Party shall not board the ship or take measures set out in subparagraph (b)”. And even though flag states are required to respond “as expeditiously as possibly” to any such requests, no provision is made as to what happens if a response is withheld. In particular, unlike in some of the bilateral drug-interdiction agreements mentioned above, no time limit is stipulated after which consent to intercept and board may be presumed.85 However, Article 8bis also provides for two additional optin mechanisms that allow for a further facilitation of non-flag state high seas interdictions. The first of these opt-in mechanisms provides for presumed consent following an unanswered request and the lapse of a four-hour time limit, the second mechanism is relies on the issuance of ex ante flag state consent to board and search suspicious vessels.86 The UNSC even though it has generally been very active in the area of antiterrorist counter-proliferation thus far has not authorized any non-flag state interceptions at sea. In particular, UNSC Resolution 1540 (2004), explicitly requiring maritime counter-proliferation efforts to be consistent with existing international law87—abstained from creating an additional boarding regime.

(i) authorize the requesting Party to board and to take appropriate measures set out in subparagraph (b), subject to any conditions it may impose in accordance with paragraph 7; or (ii) conduct the boarding and search with its own law enforcement or other officials; or (iii) conduct the boarding and search together with the requesting Party, subject to any conditions it may impose in accordance with paragraph 7; or (iv) decline to authorize a boarding and search. The requesting Party shall not board the ship or take measures set out in subparagraph (b) without the express authorization of the flag State. 85  V. Lowe and A. Tzanakopoulus “Ships, Visit and Search” in Max Planck Encyclopedia of Public International Law available at , paras. 37–38. 86  Guilfoyle, note 50 at 257. See also Klein, note 63 at 178 et seq. 87  Thus, according to Art. 8bis para. 5 lit. d) 2005 Protocol of the SUA Convention “Upon or after depositing its instrument of ratification, acceptance, approval or accession, a State Party may notify the Secretary-General that, with respect to ships flying its flag or displaying its mark of registry, the requesting Party is granted authorization to board and search the ship, its cargo and persons on board, and to question the persons on board in order to locate and examine documentation of its nationality and determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committed, if there is no response from the first Party within four hours of acknowledgement of receipt of a request to confirm nationality.” According to Art. 8bis para. 5 lit. e) “Upon or after depositing its instrument of ratification, acceptance, approval or accession, a State Party

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Nevertheless, as has been argued elsewhere, Resolution 1540 may have had certain effects on the exercise of existing heads of non-flag state jurisdiction, namely coastal state jurisdiction on the basis of UNCLOS Article 27.88 As far as collective security measures are concerned, a different and more innovative approach was taken with respect to the specific situation of Democratic People’s Republic of Korea (DPRK), following the DPRK’s nuclear test of 25 May 2009. While UNSC Resolution 1874 in para. 12 requires flag state consent for any high seas inspections, according to para. 13, if such consent is withheld, the Security Council “[D]ecides that the flag State shall direct the vessel to proceed to an appropriate and convenient port for the required inspection by the local authorities pursuant to paragraph 11”.89 The port state, by virtue of para. 14, is then authorized and obliged to seize and dispose of any relevant items found upon inspection. Thus, albeit the Security Council in Resolution 1874 has not established an additional high-seas boarding regime either, UNSC Resolution 1874 imposes additional obligations on the flag state, obliging it to expose its vessels to port state jurisdiction.90 UNSC Resolution 1874 thus creates a hybrid regime that links flag state jurisdiction to the enforcement competencies of other (port) states. Therefore, rather than challenging the exclusivity of flag state jurisdiction, UNSC Resolution 1874 forms part of a containment strategy and contributes to a gradual hardening of flag state responsibilities.

Bilateral Efforts to Facilitate At-Sea Counter-Proliferation Inspections by Non-Flag States The Proliferation Security Initiative (PSI) announced by President Bush in 2003 is a political initiative to enhance law enforcement cooperation on the basis of existing laws that in and of itself and in spite of the inclusion of a “Statement on Interdiction Principles” has not brought about any substantive changes in the law applicable to maritime interdictions.91 However, a number may notify the Secretary-General that, with respect to ships flying its flag or displaying its mark of registry, the requesting Party is authorized to board and search a ship, its cargo and persons on board, and to question the persons on board in order to determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committed.” 88  Lowe makes that point succinctly, see his chapter on Jurisdiction, V. Lowe “Jurisdiction” in M.D. Evans (ed.) International Law 2nd (Oxford University Press, Oxford: 2006) 335–360. 89  SC Res. 1540 (2004), para. 10. 90  Guilfoyle, note 50 at 242. 91  SC Res. 1874 (2009), para. 13. Para. 11 “[C]alls upon all States to inspect, in accordance with their national authorities and legislation, and consistent with international law, all cargo to and from the DPRK, in their territory, including seaports and airports, if the State

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of bilateral ship boarding agreements, providing for boarding regimes of varying scope and content, have been concluded under this framework, namely between the US and Antigua and Barbuda, the Bahamas, Belize, Croatia, Cyprus, Liberia, Malta, the Marshall Islands, Mongolia, Panama and St. Vincent and the Grenadines.92 Similar to bilateral agreements concluded in the area of counter-narcotics, all of these agreements uphold the general requirement of prior flag state consent. In terms of scope they are limited to certain, defined vessels, some condition the issuance of consent to board on the provision of additional evidence and information and preferential flag state jurisdiction to adjudicate remains intact in all of these agreements.93 Some of them, however, provide for presumed consent, subject to time limits of usually two or four hours, if boarding requests remain unanswered. However, as has been pointed out elsewhere, the scope of these provisions is arguably narrowed down by the fact that these time limits are only triggered if an acknowledged request remains unanswered.94 Interim Conclusion Unlike in the case of illicit drug trafficking and at least partially due to the fact that on an international level the illegality of proliferation activities is not nearly as firmly established, UNCLOS is silent on the issue of weapons trafficking and the proliferation of weapons of mass destruction. Yet, ever since this phenomenon has been characterized as “a threat to international peace concerned has information that provides reasonable grounds to believe the cargo contains items the supply, sale, transfer, or export of which is prohibited by paragraph 8 (a), 8 (b), or 8 (c) of resolution 1718 or by paragraph 9 or 10 of this resolution, for the purpose of ensuring strict implementation of those provisions.” 92  V. Lowe and A. Tzanakopoulus “Ships, Visit and Search” in Max Planck Encyclopedia of Public International Law available at , para. 29. 93  M. Byers “Policing the High Seas: The Proliferation Security Initiative” (2004) 98 AJIL 526–45. M.A. Becker “The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea” (2005) 46 Harvard International Law Journal 131–230; J. Cotton “The Proliferation Security Initiative and North Korea: Legality and Limitations of a Coalition Strategy” (2005) 36 Security Dialogue 193–211; D. Guilfoyle “The Proliferation Security Initiative: Interdicting Vessels in International Waters to Prevent the Spread of Weapons of Mass Destruction?” (2005) 29 Melbourne University Law Review 733–64: D.H. Joyner ‘The Proliferation Security Initiative: Nonproliferation, Counterproliferation, and International Law’ (2005) 30 Yale Journal of International Law 507–48. 94   The catalogue is available at . See also C. Warbrick [ed] “United Kingdom Materials on International Law 2004” (2004) 75 British Yearbook of International Law 595–962, 784.

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and security” in 1992,95 novel counter-proliferation competencies for non-flag states have gradually been developed both on a bilateral and on a multilateral level. While thus far these endeavours have remained far too sporadic and sketchy as to challenge the exclusivity of flag state jurisdiction, they are sufficiently numerous and dense as to evidence a trend towards allowing additional jurisdictional bases in the area of illicit proliferation of weapons of mass destruction.

Concluding Thoughts

The preceding considerations eschew clear-cut answers. They provide evidence of the considerable pressure on a curious concept, that of exclusive flag state jurisdiction. At the same time, they reflect the continuing appeal of that same concept, which often cannot be tackled head-on, but requires to be circumvented. Instances of pressure and circumvention can be found in all areas under review, with nuances of degree. With respect to drug trafficking, pressure towards compliance with international standards has resulted in liberal schemes for enforced/presumed flag state consent. To a lesser degree this finding also holds true with regard to counter-proliferation efforts. In the fight against IUU fishing, port state control and flag state duties enrich the arsenal. In both fields, pragmatic strategies dominate, which permit face-saving solutions while incrementally closing down loopholes. Piracy in many respects is different: here, the international regime is premised on decentralized enforcement competencies: and pressure is aimed at broadening and deepening it. As regards the international law-making process, it is interesting to note the attractiveness of the ‘piracy regime’: it is surely no coincidence—but rather: clever argumentative strategy that IUU fishing is denounced as ‘modern day piracy’. As regards drug trafficking, the European Court of Human Rights’ recent judgment in Medvedyev openly calls for a ‘piracy analogy’. In the words of the Grand Chamber, It is regrettable [. . .] that the international effort to combat drug trafficking on the high seas is not better coordinated bearing in mind the increasingly global dimension of the problem. . . . Having regard to the gravity and enormity of the problem posed by illegal drug trafficking, developments in public international law which embraced the principle that all 95  Guilfoyle, note 50 at 247.

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States have jurisdiction as an exception to the law of the flag State would be a significant step in the fight against illegal trade in narcotics. This would bring international law on drug trafficking into line with what has already existed for many years now in respect of piracy.96 Put differently, while the piracy regime, after decades of hibernation, is now being revived (as well as stretched and expanded), it continues to serve a function that it has played for well over a century: that of a vanguard rule referred to by law-reformers. As is equally clear from the foregoing, such law reform can take various forms: special (usually bilateral) treaty rules are numerous, in all fields; while unilateral action is viewed with a measure of scepticism (even where it can provide an impetus for treaty-making). The most recent law-making tool are Security Council resolutions: because of their binding force and relatively lean decision-making process, they are the law-maker’s ace of spades (or trump card). But outside narrow categories with an obvious peace and security link, that trump card can usually not be played. Against this backdrop it is all the more noteworthy that the Security Council in 2012 “[e]xpressed its concern about the serious threats to international peace and stability [. . .], posed by transnational organized crime, including illicit weapons and drug trafficking, piracy and armed robbery at sea.”97 From the perspective of general international law, developments assessed in the preceding sections further reinforce the perception of maritime jurisdiction as a rather curious, perhaps even exotic, field. Compared to other areas of international law, which have seen similar demands for decentralized enforcement of internationally agreed standards—such as human rights, or diplomatic protection of corporations—the governing principle of flag state jurisdiction is surprisingly robust, and indeed ‘fiercely protected’.98 The various compromise solutions surveyed in the preceding sections probably further complicate the complex and sophisticated discourse on maritime jurisdictional titles: no wonder that generalists at times feel at sea. But all the more important are attempts to integrate the sophisticated maritime discourse into the mainstream of jurisdictional debates.

96  Guilfoyle, note 50 at 249. 97  UN Doc. S/23500, 31 January 1992. 98  Medvedyev and others v France, ECtHR Grand Chamber (Judgement) 29 March 2010; para. 101.

CHAPTER 3

United States’ Bilateral Shipboarding Agreements—Upholding Law of the Sea Principles while Updating State Practice Henning Jessen

United States’ Maritime-related Security Policy on Different Diplomatic “Operating Levels”

Already in 2002, the Bureau International des Containers et du Transport Intermodal (BIC)1 estimated that more than 15 million TEU containers circulated worldwide.2 This number will be even higher more than ten years later as, over the past decades, an ever growing number of standardized boxes have been taken into service to carry a continuously diversified range of products all over the world. Simultaneously, almost all nations strive for further economic integration, growth and prosperity. The relevant statistics of international seaborne trade reflect the individual share of different countries in maritime transport. The United States (US) provides one of the best examples for a “Janus-faced” participation in global seaborne trade: On the one hand, the US is still the world’s biggest importer with annual imports of more than 2,3 billion US $ (and still a remarkable annual trade deficit between exports and imports of 750 billion US $).3 Whether containerized or in bulk, a vast majority of US imports reaches its territory by international seaborne trade. The containerized share of US imports amounts to more than 17 million inbound TEU container movements handled annually by all US ports and terminals.4 Various other US-bound imports shipped as bulk loads or in other forms, e.g. as heavy lift cargo, have to be considered as well. * Professor, Institute for Maritime Law and the Law of the Sea, Faculty of Law, University of Hamburg. 1  “TEU” stands for “twenty-foot equivalent unit”; see generally Lloyd’s List of Dec. 20, 2013 (“Teu – The one true global standard”), 26. Since the end of 2013, the BIC has been granted full consultative status by the International Maritime Organization (IMO). 2  World Shipping Council, Liner Shipping: Facts and Figures (2003). 3  World Trade Organization (WTO), International Trade Statistics 2014, 15 and 26. 4  See .

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004303508_004

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On the other hand, the US is no major flag state (anymore), at least not in global terms, as the US is currently not even among the “Top 20” flag states.5 Thus, a multitude of foreign-flagged vessels enter US port areas and terminals day by day to discharge their cargo destined for traders within the US. The factual antagonism between major US trading volumes and the minor US share of world tonnage may create legal tension between, on the one hand, the traditional and centuries-old notion of freedom of the high seas6 and, especially, exclusive flag state jurisdiction7 as embodied in article 92 of the United Nations Law of the Sea Convention (UNCLOS),8 and, on the other hand, preventive US maritime-related security interests. Especially as a result of the terrorist attacks on the US navy vessel “USS Cole” (2000),9 of “9/11” in 2001, and the following “war against terror” serious security concerns had been expressed in the US relating to the global maritime sector.10 Since 2002, the US lost no time to address these maritime-related security concerns specifically and has reacted on at least four different operating levels, i.e., on the multilateral level, on the regional level, within its own national legal order and, additionally, on a bilateral level.

5  According to the “UNCTAD Review of Maritime Transport 2014”, 44, the US ranks as the 22nd biggest flag state with a global share of 0.76% total deadweight tons. 6  See for a recent discussion on the freedom of the high seas: E. Papastavridis “The right of visit on the high seas in a theoretical perspective: mare liberum versus mare clausum revisited” (2011) 24 Leiden Journal of International Law 45 at 48; A. Klein “The Right to Visit and the 2005 Protocol on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation” (2008) 35 Denver Journal of International Law & Policy 287 at 292. 7  See e.g. Klein, note 6 at 295; J. Kraska and R. Pedrozo, International Maritime Security Law (Martinus Nijhoff Publishers, The Hague: 2013) 754; N. Brown “Jurisdictional Problems Relating To Non-Flag State Boarding Of Suspect Ships In International Waters: A Practitioner’s Observations”, in: C.R. Symmons (ed), Selected Contemporary Issues in the Law of the Sea (Martinus Nijhoff Publishers, The Hague: 2011) 67 at 68. 8  United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. 9  For details see Kraska and Pedrozo, note 7 at 743. 10  In the aftermath of the terrorist attacks on the “USS Cole” and on the French tanker “M/V Limburg” (2002) some authors developed further scenarios of possible maritime-related “terrorist attack schemes” see, e.g., J.P. Vesky Port and Maritime Security (Nova Science Pub Inc, New York: 2008) 2; M. McNicholas Maritime Security—An Introduction (Butterworth-Heinemann, Amsterdam: 2008) 249.

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United States’ Maritime-Related Security Initiatives on the Multilateral Level and on Regional Operating Levels At the multilateral operating level, since 2002, the US initiated various steps to tackle identified weaknesses. By July 2004, US multilateral efforts resulted, above all, in the global implementation of the “International Ship and Port Facility Security Code” (ISPS Code) via tacit amendment of the “Safety of Life at Sea Convention” (SOLAS) as governed by the IMO.11 Additionally, the Security Council of the UN adopted Resolution 1540 under Chapter VII of the UN Charter, requiring all states to prohibit and criminalize the transfer of weapons of mass destruction (WMD) and their delivery systems to non-state actors.12 Moreover, with major diplomatic input from the US, IMO member states revised the (merely repressive-oriented) “1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation at Sea” in 2005 (SUA 2005 Convention) and added preventive approaches of law enforcement at sea via the “2005 Protocol to the Convention for the Suppression of Unlawful Acts of Violence against the Safety of Maritime Navigation” (SUA Protocol 2005) to extend the range of criminal offences over which states have jurisdiction at sea and to provide legal authorization for interdictions outside territorial waters.13 The SUA Protocol 2005 only entered into force in mid-2010 and will be discussed at a later stage of this analysis.14 But of course, the US did not only act exclusively on the multilateral level. Since 2003, the US actively pursued the creation of the so-called “Proliferation Security Initiative” (PSI) at the regional level and also at the bilateral level.15 It is important to stress that the PSI is not a newly established international organization. Instead, it is a continuously growing, flexible and efficient “network 11  The ISPS Code has set mandatory international standards for enhancing maritime security, especially with regard to preventing security threats and potential terrorist attacks to vessels and port facilities. As an integral part of the SOLAS Convention it is universally applicable as it is mandatory for all contracting SOLAS governments which represent more than 99% total deadweight tons globally, see further T.A. Mensah “The Place of the ISPS Code in the Legal International Regime” (2003) 3 WMU Journal of Maritime Affairs 2003 17; K. Michel War, Terror and Carriage by Sea (Informa, London: 2004) 745 (22.46). 12  SC Res. 1540 (2004); see D. Guilfoyle “Maritime Interdiction of Weapons of Mass Destruction” (2007) 12 Journal of Conflict and Security Law 1 at 13; Kraska and Pedrozo, note 7 at 767. 13  The “1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation at Sea” was revised on 14 Oct. 2005, resulting in the “SUA 2005 Convention” and the “SUA Protocol 2005”, 1678 UNTS 222, IMO Doc. LEG/CONF.15/21 of Nov. 1, 2005. 14  See section ‘The Indirect and Limited Legal Impact of the SUA Protocol of 2005’ below. 15  See ; Kraska and Pedrozo, note 7 at 785.

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for activity” or “framework for action”, i.e. “an activity”, based on a case-by-case co-operation approach and continuous exchange of security-related information.16 The PSI now comprises more than 100 like-minded countries aiming to stop trafficking of WMD, their delivery systems, and related materials to and from states and non-state actors of proliferation concern.17 Consequently, the PSI addresses not only private actors—as UN Resolution 1540 does—but also states of proliferation concern. In particular, the PSI includes a statement of interdiction principles which also asks participating states to “seriously consider providing consent under the appropriate circumstances to the boarding and searching of its own flag vessels by other states, and to the seizure of such WMD-related cargoes in such vessels that may be identified by such states.”18 This wording evidences that the PSI does not—by itself—create new grounds for enforcement activities at the high seas or in the Exclusive Economic Zones (EEZs) of coastal states but that these new grounds necessitate further multilateral, regional or bilateral agreements.19 Thus, the PSI fully adheres to the wording of the first half sentence of UNCLOS Article 110 which explicitly mandates “powers conferred by treaty.”20 All in all, the PSI’s interdiction efforts are

16  J.R. Bolton “The Bush Administration’s Forward Strategy for Nonproliferation” (2004– 2005) 5 Chicago Journal of International Law 395 at 400; Guilfoyle, note 12 at 12; Kraska and Pedrozo, note 7 at 786. 17  There is extensive international literature available on the PSI, see e.g., the collection of articles at: http://www.psi-online.info/Vertretung/psi/en/08-psi-literature/PSI-Literature .html and, specifically, M. Byers, “Policing the High Seas: The Proliferation Security Initiative” (2004) 98 American Journal of International Law 526 at 538; M. Malirsch and F. Prill “The Proliferation Security Initiative and the 2005 Protocol to the SUA Convention” (2007) 68 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 229; R.P. Pedrozo “The Impending Nuclear Disaster: Flaws in the International Counter-Proliferation Regime at Sea” (2011) 9 Loyola University of Chicago International Law Review 103 at 121; S.E. Logan “The Proliferation Security Initiative: Navigating the Legal Challenges” (2005) 14 Journal of Transnational Law and Policy 253; S.B. Kaye “The Proliferation Security Initiative in the Maritime Domain” (2005) 35 Israel Yearbook on Human Rights 205. 18  Interdiction principle 4. c., available at ; see also C. Ahlström “The Proliferation Security Initiative: International Law Aspects of the Statement of Interdiction Principles” (2005) 36 SIPRI Yearbook: Armaments, Disarmament and International Security 741 at 757; Kraska and Pedrozo, note 7 at 786. 19  See also A. Klein “Legal Implications of Australia’s Maritime Identification System” (2006) 55 International & Comparative Law Quarterly 337 at 347. 20  This provision reads as follows: “Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship [. . .] is not justified in boarding it unless there is reasonable ground for suspecting that [. . .]”—

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effectively based on existing legal principles of port state control, coastal state jurisdiction and exclusive flag state jurisdiction.

United States’ Maritime-Related Security Measures on the Domestic Level Before the bilateral level will be addressed as the key level for this analysis, it is quite obvious that the US also instituted various security-related legal measures on the domestic level:21 Above all, the US established the Department of Homeland Security (DHS) via the “Homeland Security Act of 2002”.22 The DHS is a cabinet-level agency of the US government with the primary task and responsibility of protecting the US against threats from terrorism and natural disasters.23 Simultaneously, further specialized legal acts came into force to enhance security in all modes of transport. For example, to bridge the transition phase between 2002 and July 2004 (until the “global” ISPS Code could finally enter into force) the US created a rather similar domestic law via the enactment of the “Maritime Transportation Security Act” (MTSA).24 The MTSA now mirrors the ISPS Code under US Law. However, the MTSA’s clear language has done away with all diplomatic sensitivities.25 Further important transportrelated US security measures include, e.g.:

• the “Customs-Trade Partnership against Terrorism program” (C-TPAT);26 • the “Presentation of Vessel Cargo Declaration to Customs before Cargo is

Laden aboard Vessel at Foreign Port for Transportation to the United States” rule, also commonly known as “24-Hour Advance Manifest Rule”;27

UNCLOS Art. 110 then sets out five specific circumstances which can serve as a justification for boarding, see further Klein, note 6 at 296. 21  For the era pre-dating the “war against terror” see J. Siddle “Anglo-American Co-Operation in the Suppression of Drug Smuggling” (1982) 31 International & Comparative Law Quarterly 726 at 730. 22  Public Law 107–296, Nov. 25, 2002, 116 Stat. 2135, available at . 23  See . 24   Available at . 25  See e.g. M. McNicholas, note 10 at 117. 26  See ; see further: Michel, note 11 at 843 (23.4.4); C.H. Allen “The International Supply Chain Security Regime and the Role of Competent International Organizations” in: M.H. Nordquist and R. Wolfrum (eds), Challenges in Maritime Legal Security (Martinus Nijhoff Publishers, The Hague: 2007) 165 at 232. 27  See further: .

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• • •

the “Container Security Initiative” (CSI);28 the “Importer Security Filing ‘10+2’ ”;29 and the (so far unimplemented) “Security and Accountability for every Port Act of 2006” (“SAFE Port Act of 2006”).30 This article does not aim to discuss further details of all US-led or US-initiated legal measures as discussed above and there is no claim for completeness. However, all of the named acts have an abundant international dimension. This is true not only for amendments to multilateral conventions and the conclusion of regional and/or bilateral agreements. International emanation is also a fact for all legal acts on transport security implemented solely at the US domestic level. As a result, since 2002 an intricate international, regional, bilateral and national legal security network has been initiated and created— primarily by the US—but this network is now even complemented by parallel legal steps of the EU,31 its 28 member states and several other nations.32 However, recent practical developments under the US “SAFE Port Act of 2006” only evidenced that some maritime-related security measures may still be imperfect and may be hard to ever implement in practice. For example, the objectives of the “SAFE Port Act of 2006” still include the legal requirement of a 100% scanning for radiation of all US-bound containers. The act’s underlying concept is to secure US-bound freight containers by x-raying them after loading and sealing each and every container electronically afterwards. In May 2014, those plans to scan and seal every single container destined for the US—which had already been postponed earlier in 2012—were deferred again for at least two more years until mid-2016. From a 2014 technical perspective, it seems highly improbable that a 100% US-bound container scanning and electronic sealing as envisioned by the “SAFE Port Act of 2006” will 28  ; see further: Michel, note 10 at 840 (23.4.2); J. Romero “Prevention of Maritime Terrorism: the Container Security Initiative” (2003) 4 Chicago Journal of International Law 597; A. Klein Maritime Security and the Law of the Sea (Oxford Monographs in International Law, Oxford: 2011), 163–168. 29  . 30  . 31  See further Michel, note 11 at 791 (23.15); see a comprehensive summary of EU legislative acts on maritime security , in particular Regulation (EC) 725/2004 on enhancing ship and port facility security, at . 32  See, for example, certain Australian security measures as discussed by Klein, note 19 at 337.

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ever be implemented at all.33 Currently, only 3% of incoming cargo to the US is scanned at some point of its voyage, be it a foreign port of loading or a US port of discharge. That is exactly the reason why, in September 2014, another legislative proposal for an implementation of the 100% scanning requirement was introduced to the US Congress, entitled the “SCAN Act”.34 The initial desire of the US legislator to implement the objective of 100% scanning of the millions of US inbound containers to check for illegal radiological and/or nuclear material or elements for WMD still reflects the common ground among maritime security experts that it is necessary to secure the whole transport supply chain as efficient as possible and not only selected areas of transport. Identified security weaknesses still exist at the interface between maritime and non-maritime modes along the transport chain which is especially true for multimodal freight transport.35 The statistics and criminal methods of global cargo theft may serve as additional evidence for this practical concern.36

Unresolved Maritime-Related US Security Issues and the Bilateral Level The major practical problem in achieving international container security/ cargo security is that the real contents of a container may still be unknown after the box has been sealed. In almost the same manner, the real contents of a bulk cargo may still be unknown after the ship has sailed from the loading port. As a result of the US legal acts (as summarized above) shippers and carriers now have various cargo-related documentary obligations to disclose to public authorities. Additionally, port states and flag states as well as individual port state control authorities exchange official cargo-related information and security officials among each other. But nevertheless, documentary statements do not always correspond with trade reality as some major ship accidents of the past were obviously caused by undisclosed dangerous containerized goods,37 33  See Lloyd’s List of May 20, 2014, 2 (“US postpones 100% scanning of inbound containers a second time”). 34  The acronym stands for “Scan Containers Absolutely Now” and proposes a one-year pilot programme at two US ports to evaluate the process of 100 percent scanning of cargo containers and its potential use at all US sea ports, see the bill available online athttp://www .gpo.gov/fdsys/pkg/BILLS-113hr5455ih/pdf/BILLS-113hr5455ih.pdf. 35  OECD/ITF Container Transport Security Across Modes (Paris 2005), 17. 36  See instructively: D. Burges, Cargo theft, loss prevention, and supply chain security— Chapter 6: International Cargo Theft (Elsevier Science & Technology, Waltham, MA: 2012). 37  Recent examples for undeclared or unknown carriage of dangerous containerized goods include the fatal explosions on the vessels “M/V Hanjin Pennsylvania” (2003), “M/V Aconcagua” (2008) or “MSC Flaminia” (2012).

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leakages in containers provided by shippers,38 negligently overloaded containers39 or inherently dangerous bulk cargo not accurately declared as such.40 Even shippers will not always know every detail about the real contents of containers as boxes might have been stowed by their own contractual partners or as part of a longer contractual chain between different shippers.41 Ultimately, everybody in 21st century transport supply chains still needs to rely on honest cargo-related declarations of other parties involved (or even of one’s own employees). Not every bulker vessel and by far not every individual container can be physically inspected by port state authorities. Despite of all newly applied maritime-related security measures, a lot of port states—and not exclusively, but especially the US—still fear the possible danger of “hijacked” containers as well as so-called “Trojan horse” scenarios relating either to single containers or even to whole vessels.42 The physical inspection of cargo is still the most effective, and probably the only absolute solution to bring to light the real content of containerized cargo or to verify if something else is hidden in or under a bulk load of a certain commodity. To give a recent practical example, in 2013, the North Korean vessel “Chong Chon Gang” was found to be transporting, inter alia, equipment for two Russian-made fighter jets “in perfect conditions to operate” from Cuba to North Korea but its cargo had been solely declared as sugar in bulk.43 This was not the first time that a cargo destined for North Korea or originating in North Korea had been subject to security concerns.44 The North Korean vessel was 38  See Lloyd’s List of Jan. 11, 2013 (“Shippers face carrier crackdown over cargo safety breaches”), 8. 39  The problem of overloaded containers is even more common in shipping practice than undeclared dangerous goods. The grounding of “MSC Napoli” (2007) can serve as an example for such a casualty at least contributing to a total loss of a vessel and most of its cargo. The IMO’s most recent legal reaction has resulted in a 2014 decision to institute mandatory weighing of containers by July 1, 2016, to be implemented via changes to the SOLAS Convention (Chapter VI). 40  For example, due to their propensity to liquefaction direct reduced iron, nickel ore and iron-ore fines present known challenges to ship safety but sometimes these goods are simply not declared accurately, see, e.g., Lloyd’s List of Oct. 15, 2013 (“Liquefaction is high on Intercargo agenda”), 4. 41  See further on this problem Michel, note 11 at 845 (23.5.1). 42  OECD/ITF, note 35 at 42. 43  See The Washington Post of Oct. 11, 2013 (“Panama: Cuban weapons aboard North Korean ship in ‘perfect conditions’ to operate”). 44  See, for example, the case of the “MV So San” in 2002, as discussed, e.g., by Brown, note 7 at 78; Guilfoyle, note 12 at 19.

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detained at the Panama Canal for physical inspection where Panamanian officials discovered various undisclosed military parts.45 Thus, especially as a 100% scanning requirement still seems to be illusive, a physical inspection of vessels and their cargo is still—and will probably always be—the most effective security measure to verify the real content of containers, of bulk cargo, of any other goods and also to verify the real identity of persons on the vessel. However, at the same time physically inspecting vessels is also the most cost-intensive, slow and cumbersome security measure. In many doubtful cases or unverified situations the above-mentioned PSI “framework for action” will now enable the US (or any other participating state of the PSI network) to direct a suspicious vessel to the next available “PSI port”. This occurred, e.g., in the “BBC China” case although all official statements later only referred to “an operation that was carried out in the spirit of PSI but [which] was not a PSI operation”.46 Both the home state of the vessel owners (Germany)47 as well as an available port state within close distance of the ship’s position (Italy) cooperated “in the spirit of the PSI” as US intelligence information had finally confirmed the suspicion that the vessel was transporting WMD-related goods (centrifuge components) destined for Libya. As a result, ultimately visiting the suspicious vessel at sea was not even necessary in the “BBC China” case.48 Redirecting vessels to the next available port will always be cheaper for security officials of a possible boarding state and a less risky measure for all parties involved. There is only one reported “pre PSI operation” of the US were such a redirection of vessel into an “intermediary port” resulted in an “embarrassment” because no illegal material was found.49 Since then suspicious vessels are often tracked more intensively and over longer periods before any official decision to inspect these vessels will be implemented.

45  See Lloyd’s List of July 17, 2013, 2 (“North Korean weapons vessel seized in Panama”). 46  See some PSI-related quotations at M.B. Nikitin “Proliferation Security Intitiative (PSI)” 5, available online at: ; see Kraska and Pedrozo, note 7 at 793. 47  The vessel was originally registered in Germany but flew the flag of Antigua and Barbuda. 48  D. Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, Cambridge: 2009) 245. 49  This was the so-called “Yinhe” incident in 1993 where a Chinese vessel was redirected and inspected by US officials in Saudi Arabia and the accusation proved to be baseless, see I. Davis/D. Isenberg/K. Miller “U.S. Perspectives on the Origins and Future Direction of the Proliferation Security Initiative” (Feb 2007) 4 Basic Papers, Occasional Papers on International Security Policy 16.

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But in cases where member states of the PSI network cannot assist and/ or any other security-related legal measure seems to have failed from an ex ante perspective, there will be an emerging necessity to visit the vessel while it is still at sea to be able to physically inspect it—as a last resort. To be able to legally justify such an ultimate decision—both under the first half sentence of UNCLOS Article 110 and under customary international law of the sea50—the US has actively pursued a further complementary maritime-related security policy of concluding bilateral shipboarding agreements with major flag states. Apparently, the US is still the only state actively pursuing this complementary bilateral policy with rather successful outcomes over the last years.51 But it is most important to stress that the US bilateral shipboarding agreements are just another “tesserae” of a global—primarily US-led—maritime safety & security framework. This framework has significantly evolved on all diplomatic operating levels as a direct reaction to the terrorist attacks of September 11, 2001 and other maritime incidents with a “terror background”.

The History and Variety of US Bilateral Shipboarding Agreements

Contrary to the array of newly established maritime security measures—as discussed above—the conclusion of a bilateral agreement between two states to agree on mutual shipboarding requirements for vessels under their respective flags is—in itself—not at all a new phenomenon.52 This is especially true for the US. In fact, the very first US bilateral shipboarding agreement antedates UNCLOS by far and is even much older than the Geneva Convention on the High Seas from 1958. This agreement was concluded in 1924 between the US and the United Kingdom (UK). It was aimed to implement the “National Prohibition Act of 1919” (commonly known as the “Volstead Act”) by preventing

50  So far, due to opposition from the Senate, the US did yet not ratify UNCLOS. However, UNCLOS Art. 110 restates Art. 22 of the Geneva Convention on the High Seas to which the US is also a party, and it is generally accepted that this provision merely reflects customary international law. In fact, the concept of “visit and search” under certain circumstances dates even back to the 14th century, see J.L. Frascona Visit, Search, and Seizure on the High Seas (Quinn & Boden, New York:1938), 51. 51  See also E. Papastavridis The Interception of Vessels on the High Seas—Contemporary Challenges to the Legal Order of the Oceans (Hart Publishing, Oxford: 2013) 143. 52  Papastavridis, note 6 at 66.

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illegal imports of liquor via sea to the US.53 Article 2(1) of this ancient bilateral US-UK liquor treaty states: His Britannic Majesty agrees that he will raise no objection to the boarding of private vessels under the British flag outside the limits of territorial waters by the authorities of the United States, its territories or possessions, in order that enquiries may be addressed to those on board and an examination be made of the ship’s papers for the purpose of ascertaining whether the vessel or those on board are endeavouring to import or have imported alcoholic beverages into the United States, its territories or possessions in violation of the laws there in force. When such enquiries and examination show a reasonable ground for suspicion, a search of the vessel may be instituted. Some 90 years later, only the objects of public investigation and of interest to coastal states, presumably transported illegally by foreign-flagged vessels have changed. Obviously, it is nowadays not liquor anymore but, e.g., illegal trade in narcotic drugs and psychotropic substances, illegal fisheries activities, illegal human trafficking and migrant smuggling by sea as well as maritime transport of WMD-related goods. All these “modern” objects of public investigation are now subject to a variety of multilateral and regional agreements relating to interdiction at sea.54 But it is remarkable that the basic concept of bilateral shipboarding agreements—whether negotiated exclusively on the bilateral level for a specific objective or under a wider multilateral or regional “umbrella”—has not changed significantly over the decades since 1924, i.e., the flag state not objecting to an external visit of one of “its” vessels by a specifically empowered coastal state outside of the flag states’ territorial waters. As a consequence, bilateral shipboarding agreements have always fulfilled, above all, a clarifying function for the treaty partners and also for the international community enjoying the traditional principle of freedom of the high seas: In addition to all possible specific provisions, bilateral shipboarding agreements grant a major contractual benefit to the coastal state involved: 53  Convention Between the United Kingdom and the United States of America Respecting the Regulation of the Liquor Traffic, U.S.-U.K., Jan. 23, 1924, 22 U.K.T.S. 1924, available online at ; see also C.J. Colombos International Law of the Sea, 6th (Longmans, London: 1967), 143; Kraska and Pedrozo, note 7 at 761. 54  Different multilateral and regional agreements of that kind are discussed, e.g., by Guilfoyle, note 48 at 29.

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They serve as the most explicit international justification for deviating—on a case-by-case basis—from the established principle of freedom of the high seas and for executing a public competence at sea which is generally granted exclusively to the flag state of a particular vessel. This is also true for a 1981 bilateral agreement of the US with the UK to permit the interdiction of Britishflag vessels in designated areas of the Caribbean, the Gulf of Mexico, and the Atlantic Ocean when those vessels were suspected of trafficking in drugs.55 Furthermore, a 1982 US court decision even confirmed that the general state practice of obtaining explicit prior consent of a foreign flag state—which could also be communicated ad hoc to the US before its forces boarded and seized the foreign-vessel—served as a reinforcement and “furtherance” of the principles of the freedom of the high seas and exclusive flag state jurisdiction.56

The Direct and Extensive Legal Impact of the UN Narcotics Convention of 1988 The explicit function as a “special justification document” and the parallel inflexibility of most multilateral treaty instruments is the main reason why, already since the early 1990s, US bilateral shipboarding agreements were not an exceptional phenomenon anymore. Since then, Article 17(9) of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (UN Narcotics Convention 1988)57—which effectively substantiates UNCLOS Article 108—specifically recognized and encouraged bilateral shipboarding agreements to facilitate this UN convention’s suppression objectives.58 On this multilateral basis, the US—as one of the major “target markets” for illegal drug imports—started to negotiate specific bilateral shipboarding agreements with major flag states. As suggested by Article 17(9) of the UN Narcotics Convention 1988, the US has now concluded at least 25 agreements with flag states relating to bilateral maritime counter-drug operations, also

55  Great Britain and Northern Ireland: Narcotic Drugs: Interdiction of Vessels, Exchange of Notes concluded Nov. 13, 1981, 33 U.S.T. 4224. 56  United States v. Green, 671 F.2d 46 at 51 (1982) relating to the boarding and seizure of the vessel “Persistence”, as cited by Klein, note 6 at 303, on the US position relating to prior consent see also Kraska and Pedrozo, note 7 at 758. 57  United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Vienna Dec. 20, 1988. Entered into Force Nov. 11, 1990, 1582 UNTS 165 (1990). 58  This provision states that “the Parties shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of this article.”

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including shipboarding provisions.59 To some extent, Articles 8 and 9 of the Protocol against Smuggling of Migrants by Land, Sea and Air of 2000 (Migrant Smuggling Protocol 2000),60 supplementing the UN Convention against Transnational Organized Crime,61 had a similar legal effect. Annex I of this chapter provides a structural overview summarizing this legal impact of earlier multilateral treaties on subsequently concluded US bilateral shipboarding agreements. All in all, the US now operates under more than 60 bilateral agreements with relevance to maritime security and law enforcement at sea in different policy areas.62 This number is quite impressive, especially taking into account that Article 17(9) of the UN Narcotics Convention 1988 is a suggestion to all 186 member states of that convention and not only to the US. However, no other state in the world seems to have pursued this policy measure in the same coherent way as the US has done over the last two decades.63 Not all of the more than 60 bilateral treaty instruments mentioned above explicitly justify external shipboarding of foreign-flagged vessels by US officials. Other bilateral agreements and treaties also address joint operational procedures between the US and the relevant counterparts, technical assistance measures to the benefit of a number of developing country treaty partners as well as, e.g., bilateral cooperation in maritime surveillance. An interesting special feature of those instruments are so-called “cooperative shiprider agreements”, providing for the preventive deployment of US security personnel on foreign-flagged law enforcement vessels.64 In the 59  See J.A. Roach and R.W. Smith Excessive Maritime Claims (Martinus Nijhoff Publishers, The Hague: 2012), see Appendix Sixteen: United States Maritime Law Enforcement Agreements (in Force or Signed Awaiting Entry into Force), and Understandings and Operational Procedures. 60  40 I.L.M. 384 (2001), UN Doc A55/383 (Annex III, at 62), see Roach and Smith, note 59 572. 61  40 I.L.M. 335 (2001); UN Doc. A/55/383 at 25; UN Doc. A/RES/55/25 at 4. 62  Roach and Smith, note 59, all in all, 66 bilateral treaty instruments are listed in Appendix Sixteen. 63  However, the authors Gilmore and Klein refer to one exception which is the “1995 Council of Europe Agreement on Illicit Traffic by Sea” where Art. 6 of that agreement also addresses the issue of shipboarding by another state party, see W.C. Gilmore “Narcotics Interdiction at Sea: The 1995 Council of Europe Agreement” (1996) 20 Maritime Policy 3 at 4; Klein, note 6 at 306. 64  Id., two specific “shiprider agreements” are named (between the US and the island states Micronesia and Palau), however, some other bilateral agreements provide for “shiprider provisions” as well, see generally R.R. Churchill and A.V. Lowe The Law of the Sea 3rd (Manchester University Press, Manchester: 1999), 220; Molenaar, “Multilateral Hot Pursuit

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policy area of international fisheries management the US concluded such a “shiprider memorandum of understanding” with China in 1991.65 But this was a rather special case of jointly policing certain sea areas to combat large-scale drift-net fishing more efficiently. In sum, it is true to say that some US treaty partners—especially some small-island “micro states” and a number of developing countries—have externalized at least parts of their own security costs and brought their flag vessels under the US “security umbrella” via the conclusion of those bilateral agreements.66 On the other hand, the US selection of treaty partners—diversified over different policy areas—generally reflects “flag state strength” in the global shipping fleet referring to gross tonnage. For example, only six US bilateral treaty partners and flag states, i.e., Panama, Liberia, the Marshall Islands, Bahamas, Malta, and Cyprus, collectively account for more than 53 percent of world tonnage.67 Thus, although these states represent only a small fraction of the global community in terms of population numbers or economic strength they are home to the majority of the world shipping fleet. It is strategically important for the US that exactly these states—in their unique function as leading flag states—bilaterally accepted and consented to the explicit justification of possible boardings of their flag vessels.68 The US has chosen “top countries, in terms of tonnage”.69 However, tonnage-based agreements represent only one side of the strategic calculation of the US. Quite obviously, Panama is one of the most important treaty partners not only because it represents the highest global share of tonnage but also because of its access to a strategically important choke point of global shipping, i.e. the Panama Canal. Other selected treaty partners do not even represent high tonnage volumes but they are—in a wider and Illegal Fishing in the Southern Ocean: The Pursuits of the Viarsa 1 and the South Tomi” (2004) 19 The International Journal of Marine and Coastal Law 19 at 34; Roach and Smith, note 59 at 571. 65  Memorandum of Understanding between the Government of the United States of America and the Government of the People’s Republic of China on Effective Cooperation and Implementation of United Nations General Assembly Resolution 46/215 of Dec. 20, 1991, entered into force 3 Dec. 1993, KAV 3727; see also Molenaar, note 64 at 34; Guilfoyle, note 48 at 119. 66  See Guilfoyle, note 12 at 23 with further references. 67  Calculated with data from the “UNCTAD Review of Maritime Transport 2014”, 44. 68  See also D. Garfield “Interdiction on the High Seas: The Role and Authority of a Master in the Boarding and Searching of his Ship by Foreign Warships” (2008) 55 Naval Law Review 157. 69  See I. Davis/D. Isenberg/K. Miller, note 49 at 16 (footnote 59, referring to an “interview with a former State Department official”, done at August 12, 2006).

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sense—Caribbean neighbouring states to the US, like Belize, Honduras or St. Vincent and the Grenadines. An efficient US maritime counter-drug strategy cannot neglect those neighbouring states as some of their flag vessels might be involved in illicit short-sea transport of drugs or ship-to-ship transfer of narcotics and other illegal substances in close proximity to US coastal waters but not within its territorial sea. This is also the reason why—as suggested by Article 17(9) of the UN Narcotics Convention 1988 as well—there is also a complementary regional agreement in this policy area, i.e., the “2003 Agreement Concerning Co-operation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area”, known in short as the “Caribbean Regional Maritime Agreement” (CRMA).70 Thus, regional and bilateral maritime security initiatives may efficiently supplement each other and this has been achieved to a large extent in the area of suppressing illicit drug trafficking. The Indirect and Limited Legal Impact of the SUA Protocol of 2005 Currently, there are eleven US bilateral treaties which are shipboarding agreements, explicitly concluded by the US with flag states “to further operationalize” the PSI framework for action. These flag states are Antigua and Barbuda, the Bahamas, Belize, Croatia, Cyprus, Liberia, Malta, the Marshall Islands, Mongolia, Panama and St. Vincent and the Grenadines.71 Bilateral US negotiations with Greece and other (unidentified) flag states obviously failed.72 The last agreements were concluded in 2010 with Antigua and Barbuda and St. Vincent and the Grenadines—since then there were no further developments but this does not mean that the US will not negotiate new agreements in the future.73 Not surprisingly, all of the WMD-related bilateral shipboarding agreements were closely emulated from their older maritime counter-narcotics role models based on the UN Narcotics Convention 1988. But they do not mirror the exact same treaty partners. Also not surprisingly, the two biggest flag states—Panama and Liberia—were the very first two states to enter into bilateral maritime counter-WMD agreements with the US under the PSI framework. 70  Signed in San Jose on April 10, 2003, the CRMA entered into force on Sept. 18, 2008. The final text is available online at . 71  See the whole list of the eleven treaty partners at and published in Kraska and Pedrozo, note 7 at 794. 72  I. Davis/D. Isenberg/K. Miller, note 49 at 15 (footnote 54, referring to an “interview with a former State Department official”, done at August 2, 2006). 73  Ibid., 15; initially the US had the political objective to conclude about twenty agreements in this area.

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As a result, some flag states, like Panama, the Bahamas, Belize, Antigua and Barbuda as well as St. Vincent and the Grenadines now even have two active bilateral shipboarding agreements in operation with the US, one relating specifically to maritime counter-drug operations under the UN Narcotics Convention 1988 and the other—often in the form of a supplementary agreement—relating specifically to maritime counter-WMD operations under the PSI framework as established since 2004. Other flag states, for example Liberia, Croatia or Mongolia, are solely subject to just one bilateral shipboarding agreement as an “intrinsic part of the PSI”.74 Interestingly, in 2011, in the case of Belize, a WMD-related boarding procedure—relating to the vessel “M/V Light”—had already been prepared exactly as contractually agreed. However, as the North Korean master of the vessel refused to accept a boarding, the US authorities aimed to de-escalate the situation and to minimize any dangers for the crew.75 Just like in the “BBC China” case (as discussed already above) no boarding took place in the case of the “M/V Light”. These examples evidence a certain degree of caution: While the legal system might work perfectly some practical problems can always remain. Especially the behaviour of the master and the advantages of searching a vessel while she is at port might still impede a foreign boarding. In fact, unlike in the area of preventing the transport of illegal narcotics by sea there are almost no publicly reported examples of WMDrelated vessel interdictions. From a treaty-making perspective, it is very tempting to believe that the IMO’s SUA Protocol 2005 directly contributed to the developments relating to bilaterally-agreed maritime counter-WMD operations under the PSI. Article 8bis of the SUA Protocol 2005 provides for an explicit “multilateralized” shipboarding regime among its member states. It does so by establishing a comprehensive set of procedures and protections designed to facilitate the boarding of a vessel suspected of being involved in an offense under the SUA Protocol 2005.76 Because of the importance for the topic discussed here this extensive provision is reproduced in Annex II of this chapter. Article 8bis of the SUA Protocol 2005 permits, on a reciprocal basis, interdictions by warships of member states where there are “reasonable grounds” to suspect that offences under the SUA framework have been committed (see paras. 4 and 5 of Article 8bis of the SUA Protocol 2005).77

74  Papastavridis, note 51 at 143. 75  For details see Kraska and Pedrozo, note 7, at 771, 788. 76  See also Roach and Smith, note 59 at 574. 77  See also Brown, note 7 at 80.

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However, with regard to active US bilateral shipboarding agreements, again two separate diplomatic operating levels have to be taken into account. In fact, the SUA Protocol 2005 so far had only indirect and limited effects on the developments of US bilateral shipboarding agreements over the last ten years: Initially, the US had actively supported the conclusion of the SUA Protocol 2005. But it seems the US was not perfectly satisfied with the final outcome of this very protracted and complicated multilateral instrument. Though it can be expected that the US might ratify the SUA Protocol 2005 at some point in the future it has not done so for years after its signature and the majority of the international community has taken the same “wait and see” approach.78 In fact, the negotiations of the SUA Protocol 2005 had been highly contentious and the final text of the SUA 2005 protocol now reflects these diplomatic controversies.79 This is especially true for the convoluted wording of the central multilateral shipboarding provision, i.e., the 15 single paragraphs of Article 8bis of the SUA Protocol 2005.80 Article 8bis SUA Protocol 2005 has even been characterized—quite graphically—as a “treaty within a treaty” and as “an irruption of new times into an old treaty”.81 With currently 31 member states (representing about 35% of world tonnage)82 the SUA Protocol 2005 does not (by itself) reflect customary international law.83 Acknowledging the first sentence of UNCLOS Article 110, the SUA Protocol 78  The US has signed the Protocol on 17 Feb., 2006, and labelled it as “subject to ratification”, see “Status of multilateral Conventions and instruments in respect of which the International Maritime Organization or its Secretary-General performs depositary or other functions”, as at May 16, 2014, available at: http://www.imo.org/en/About/ Conventions/StatusOfConventions/Documents/Status%20-%202015.pdf. Remarkably, however, Germany is about to ratify the SUA Protocol 2005. 79  See IMO Doc. LEG 87/17 (23. Oct. 2003), “Report of the Legal Committee on the work of its 87th Session“at para. 118; C. Young “Balancing Maritime Security and Freedom of Navigation on the High Seas: A Study of the Multilateral Negotiation Process in Action” (2005) 2 Univ. of Queensland L.J. 2005, 357; R.C. Beckman “The 1988 SUA Convention and 2005 SUA Protocol: Tools to Combat Piracy, Armed Robbery, and Maritime Terrorism” in: R. Herbert-Burns/S. Bateman/P. Lehr (eds), Lloyd’s MIU Handbook of Maritime Security (Taylor & Francis, London: 2009), 195. 80  In addition, a word count of Art. 8bis SUA Protocol 2005 reveals that this single provision is made up of just over 1,800 words making it cumbersome to understand and to apply in practice. 81  Papastavridis, note 51 at 132. 82  As at July 1, 2015. 83  Though it is probably possible to argue that where a flag state explicitly waives its exclusive jurisdiction to the benefit of a named interdicting state, the interdicting state is also competent not only to board the foreign-flagged vessel but also to apply its laws to the foreign-

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2005 specifically entails “powers conferred by treaty” to justify “acts of interference” by members on flag vessels of other members. It could be argued, however, that the general objectives of the SUA Protocol 2005 reflect customary international law as the Protocol—if seen together with the 1988/2005 SUA Convention84—form an integrated treaty.85 However, Article 8bis SUA Protocol 2005 created a self-contained treaty regime that does not reflect customary international law. Moreover, as a current nonmember, the US cannot justify any shipboarding operations based on a multilateral accord under the SUA Protocol 2005. Key flag states of strategic security importance to the US are not members of the SUA Protocol 2005 as well. A comparison reveals that only three out of eleven flag states which have entered into bilateral maritime counter-WMD operations with the US under the PSI framework are also ratifying states to the SUA Protocol 2005 at the same time (Panama, the Marshall Islands and St. Vincent and the Grenadines). Other major flag states like Liberia, Cyprus or Malta did not even sign the SUA Protocol 2005. This situation leaves a possible ratification of this multilateral instrument by remaining major flag states as an open question for many years to come. Rather, para. 4 c) of the PSI’s interdiction principles addresses more than 100 actively participating states of the framework and invites them to negotiate bilaterally (as well as regionally) on the specifics of a mutual accord on non-flag state shipboarding.86 Consequently, under a legal “efficiency of scale approach” the negotiation of bilateral shipboarding agreements has two further strategic advantages for the US (apart from their overall legal effect as the most explicit justification instrument for deviating from the established concepts of freedom of the high seas and exclusive flag state jurisdiction on a case-by-case-approach): First, the US flagged vessel relying on customary international law, see generally D. Guilfoyle “Human Rights Issues and Non-Flag State Boarding of Suspect Ships in International Waters” in: C.R. Symmons (ed), Selected Contemporary Issues in the Law of the Sea (Martinus Nijhoff Publishers, The Hague: 2011) 83 at 95. 84  Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Rome Mar. 10, 1988, entered into force Mar. 1, 1992, 27 I.L.M. 672 (1988), UN Law of the Sea Bull. No. 11, July 1988, at 14, 1678 U.N.T.S. 221, for the 2005 changes to the Convention see: IMO Doc. LEG/CONF. 15/21, Adoption of the Final Act and Any Instruments, Recommendations and Resolutions Resulting from the Work of the Conference, Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, Nov. 1, 2005. 85  As argued by Kraska and Pedrozo, note 7 at 820. 86  See a more specific quotation of paragraph 4 c. of the PSI’s Interdiction Principles, supra in section ‘United States’ Marine-Related Security Initiatives on the Multilateral Level and on Regional Operating Levels’.

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is not dependant on a geographically limited acceptance of a specific multilateral treaty instrument like the SUA Protocol 2005. In fact, the US can bilaterally pursue and implement its strategic preferences of a “tailor-made” geographical selection of treaty partners. Second, the specific terms of the bilateral shipboarding agreements can be designed more flexible, thus enabling the US to propose individual and potentially far-reaching provisions to its negotiating partners which could possibly not be agreed upon on the wider regional or even multilateral level. Precisely for this reason, the US bilateral shipboarding agreements have also been criticized as “de facto unequal treaties”.87 To verify whether this criticism is justified it makes sense to introduce some key material and procedural characteristics of the US bilateral shipboarding agreements and, wherever possible, to compare them to the multilateral approach as implemented under Article 8bis SUA Protocol 2005.

Some Key Clauses of US Bilateral Shipboarding Agreements as Compared to Multilateral Solutions

All of the currently existing eleven US bilateral shipboarding agreements—as concluded specifically under the “PSI activity”—follow essentially the same legal structure. The US treaty “template” addresses a number of different legal issues.88 In fact, it is possible to mirror the treaty headings of the US bilateral boarding agreements with most of the individual paragraphs of the multilateral shipboarding regime as provided by Article 8bis SUA Protocol 2005. Annex I of this chapter provides a detailed structural overview referring to all key provisions. It also includes further “historic” sources of law as some elements of Article 8bis SUA Protocol 2005 are derived from older conventions, i.e., especially from the UN Narcotics Convention 1988 and from the Migrant Smuggling Protocol 2000. However, not all provisions of US bilateral boarding agreements have a “perfect match” in substance with multilateral treaties. Very few “technical” provisions do not have a counterpart at all. This is especially true for some bilateral shipboarding agreements of the US which have been concluded with developing country partners with unequal bargaining power. There are, of course, 87  See Papastavridis, note 51 at 145—but it should also be remembered that the bilateral agreements open possibilities for US developing country partners to “externalize” parts of their security cost, see section ‘The Direct and Extensive Legal Impact of the UN Narcotics Convention of 1988’ supra. 88  Some of those are also discussed by Kraska and Pedrozo, note 7 at 789–793.

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strategic reasons for this. Some points need particular attention: Although the bilateral US agreements and Article 8bis SUA Protocol 2005 do have a substantial legal overlap, some negotiation points are either addressed in more detail under the US bilateral agreements whereas these do not address other issues which might slow down the whole proceedings. Contractual Omissions and Additions A comparison of the complex legal structures as provided in Annex I of this chapter reveals that the bilateral treaties serve “tailor made” US security objectives more efficiently. This can hardly be surprising. The US is able to achieve an efficient and even more streamlined boarding framework by trying to omit some “flag state friendly” and cautious options as included under Article 8bis SUA Protocol 2005. A good example for this strategy is evidenced by the inclusion (respectively, the non-inclusion) of a contractual counterpart to Article 8bis para. 7 SUA Protocol 2005. This provision states that: The flag State, consistent with the other provisions of this Convention, may subject its authorization under paragraph 5 or 6 to conditions, including obtaining additional information from the requesting Party, and conditions relating to responsibility for and the extent of measures to be taken. No additional measures may be taken without the express authorization of the flag State, except when necessary to relieve imminent danger to the lives of persons or where those measures derive from relevant bilateral or multilateral agreements. Thus, pursuant to Article 8bis para. 7 SUA Protocol 2005 a flag state may craft its authorization to board one of its vessels (made under 8bis paras. 5–6 SUA Protocol 2005) to a requesting state to include caveats or conditions. In contrast to that, at least not all US treaties mention “conditions” as envisioned by Article 8bis para. 7 SUA Protocol 2005. For example, the US shipboarding agreements with Mongolia and Antigua and Barbuda miss an explicit contractual counterpart to Article 8bis para. 7 SUA Protocol 2005 whereas, e.g., the treaties concluded with Croatia and Cyprus exactly mirror this provision.89 However, if flag states (as allies of the US) could apply “cumbersome” conditions to planned boardings these could obstruct the general objective of expedited decision-making for boarding procedures. A typical example would be the flag state demanding more detailed information from the US as a requesting state, such as its willingness to assume responsibility for certain 89  Art. 4 c) of the US agreement with Croatia; Art. 3 d) of the US agreement with Cyprus.

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acts during the boarding and the extent of measures to be taken during the boarding process or during detention.90 The bilateral boarding agreements try to remedy this issue by its clauses referring specifically to “safeguards” and the “use of force”. The structural overview in Annex I evidences that the issues of “safeguards” and “the use of force” (or rather: “proportionality” under the SUA Protocol 2005) are addressed both on the bilateral level by the US as well as on the multilateral level. But the US bilateral agreements go even a step further as they also refer to “claims” resulting from a boarding which included the use of force. Typically, the bilateral agreements include a “claims” provision which states something close or similar to the following: Any claim for damage, harm, injury, death or loss resulting from an operation carried out by a Party . . . shall be resolved by that Party in accordance with the domestic law of that Party, and in a manner consistent with international law.91 On the one hand, it could be inferred from the above analysis that weaker parties are not able to negotiate an inclusion of the full range of “multilateralized” flag state safeguards into bilateral shipboarding agreements with the US. The full range of “multilateralized” flag state safeguards is, however, offered automatically to all members of the SUA Protocol 2005. This does not imply that the US has obtained a bilateral “blank check” by some flag states. But—insisting on the exact wording—it is even easier for the US to legitimately board a Mongolia-flagged vessel as compared to a Cyprus-flagged vessel. This legal effect has also been characterized as “arrangements reflecting the US’s inordinate leverage” which generally works better with states offering so-called “flags of convenience”.92 On the other hand, however, the US bilaterally accepts the inherent risks of interdiction procedures and seeks to establish legal foreseeability for both parties by including clauses like the claims provision in its treaties. In practice, the legal effects and internal US administrative procedures as established 90  Kraska and Pedrozo, note 7 at 836. 91  See, e.g., Art. 13 para. 2 of the Agreement Between the Government of the United States of America and the Government of Belize Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials By Sea, Aug. 4, 2005. 92  J.I. Garvey “The International Institutional Imperative for Countering the Spread of Weapons of Mass Destruction: Assessing the Proliferation Security Initiative” (2005) 10 Journal of Conflict and Security Law 125 at 133.

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under this clause are far more meaningful as compared to a general (and timeconsuming) “state liability” provision like Article 8bis para. 10 b) SUA Protocol 2005.93 Presumptive Flag State Authorization to Shipboardings Adding some more explicit procedural details results in the same positive effect for the US. Time is of the essence in any interdiction operation. With the exception of the US bilateral shipboarding agreement with Croatia, the other ten of those treaties implement the consent of “deemed” or “presumptive” flag state authorization:94 A requested party (i.e. the flag state) shall answer requests made for the verification of nationality and authorization to board within [four, respectively, two] hours of its acknowledgment of the receipt of such requests through its “Competent Authority”.95 If there is no response (or a negative answer of the requested flag state on the nationality as claimed by the vessel) the vessel could be boarded in international waters—either based on the fiction of consent as agreed under the bilateral shipboarding agreement or under the general right of visit under UNCLOS Article 110(1)(d) (justifying the boarding of stateless vessels). However, the outcome of the SUA Protocol 2005 does not reflect the idea of deemed consent of the flag state and rejected mandatory “hour deadlines” for replies of requested flag states to requesting states. The US had opted in favour of such a mandatory inclusion but a majority of other IMO members finally rejected this concept. Rather, the SUA Protocol 2005 is now based on an explicit case-by-case (“ad hoc”) consent of flag states or, alternatively, on an “opt-in” approach where parties may notify prior authorization to the benefit of all other members to the IMO Secretary-General (see Article 5 d) and e) of the SUA Protocol 2005). As a result, the “four hour rule” only applies under the SUA Protocol 2005 if a member has elected to “opt in”. Apparently, no state has done this so far. Moreover, the final sentence of this provision states that “the notifications made pursuant to this paragraph can be withdrawn at any time”. The inclusion of the last sentence of Article 5 SUA Protocol 2005 93  The US Congress has even established mechanisms that permit the US Navy and the US Coast Guard to consider and pay meritorious claims for damaged property arising from maritime law enforcement operations, see for more details Roach and Smith, note 59 at 579. 94  There is an extensive discussion of this issue provided by Guilfoyle, note 12 at 24. 95  See, e.g., Art. 3 b. and c. of the US bilateral shipboarding agreement with Cyprus; for the creation of the “Competent Authority” see Heading 11 (Points of Contact) of the general structure of US bilateral shipboarding agreements.

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represented a setback to US diplomatic objectives of achieving long-term foreseeability for shipboardings on the multilateral level. In contrast to the SUA Protocol 2005, ten out of eleven US bilateral shipboarding agreements (the exception being the Croatian flag state) implement either a “two hour rule” or a “four hour rule” for awaiting responses of requested flag states, thus expediting the decision-making in boarding procedures significantly. Conclusion Already in 2005, the US officially stressed that the “combination of states with which we have signed bilateral shipboarding agreements, plus the commitments made by other [PSI] partners under the Statement of Interdiction Principles, translates into more than 60 percent of the global commercial shipping fleet dead weight tonnage now being subject to rapid action consent procedures for boarding, search, and seizure.”96 More than ten years later, this evaluation is still valid, especially, as the US and a majority of its key allies under the PSI framework have not ratified the SUA Protocol 2005 yet. Although a US and other states’ ratification of the SUA Protocol 2005 would tighten the maritime security net even further, the fundamental paradigm shift has already begun under the PSI and the bilateral shipboarding agreements concluded since 2004. The bilateral agreements even mitigate the most prominent weakness of the PSI: They create binding bilateral obligations under public international treaty law while the PSI inadvertently creates just a “web of asynchronized national laws”.97 Above all, although the agreements are mutually applicable they primarily provide for expedited and streamlined procedures for consideration of US requests by the flag states concerned. Clearly, in the area of shipboarding there has been a “legal evolution” on the multilateral level that leads directly from the ground-breaking UN Narcotics Convention of 1988 and the Migrant Smuggling Protocol of 2000 to the SUA Protocol of 2005.98 On the bilateral level, as envisioned and encouraged by the 96  Media Note, Office of the Spokesman, The United States and Belize Proliferation Security Initiative Shipboarding Agreement (Aug. 4, 2005) as quoted already by Klein, note 6 at 312; see also Kraska and Pedrozo, note 7 at 785, 788. 97  Kraska and Pedrozo, note 7 at 821. 98  Because of its Art. 22 one could even add to the list the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling

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mentioned multilateral treaties, the US has taken a bulk load of useful legal substance from those agreements and it has developed this substance further for its individual security purposes. This is a legitimate and comprehensible step in times of external terrorist threats and identified weaknesses in the maritime transport sector. From a legal point of view, the eleven US bilateral shipboarding agreements—as concluded since 2004—are not revolutionary aberrations of this process at all. Rather, they are evolutionary bilateral results of the multilateral accord. Neither the multilateral nor the bilateral shipboarding procedures infringe upon the traditional principle of freedom of navigation and the right to visit as a limited exception to the concept of exclusive flag state jurisdiction under the traditional understanding of the law of the sea. Rather, the main objective of the bilateral shipboarding agreements is procedural expedition and administrative clarity by eliminating the need to negotiate time-consuming ad hoc shipboardings with unknown governmental authorities. That is why the bilateral agreements explicitly establish preassigned “points of contact” and require the “exchange and knowledge of laws and policies” of the relevant bilateral partner. This technical point is probably more underdeveloped or “static” at the multilateral level as compared to the bilateral agreements of the US. However, knowing who to address specifically in a situation of urgency is crucial in this field. In sum, US bilateral shipboarding agreements are just updating former UNCLOS practices rather than changing its fundamental legal principles.99 Both the legal prescriptions of UNCLOS Articles 91–94 as well as the key provision on the right to visit, i.e. UNCLOS Article 110, remain completely intact. From a modern perspective on the law of the sea the bilateral boarding agreements are thus a perfectly legal path for the US (and potentially other PSI participants) to achieve legal security for common public objectives, i.e., enhancing global maritime security.

Fish Stocks and Highly Migratory Fish Stocks, New York, 4 December 1995, in force since 11 December 2001, 34 I.L.M. 1542 (1995). 99  See also J.C. Morse/R.O. Keohane “Contested Multilateralism” The Review of International Organisations 2014 18, at 4.1.3 (available under open access at

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Annex I: Structural Overview of Inter-Related Shipboarding Provisions “Template” of US Paragraph of Article 8bis SUA bilateral shipboarding Protocol 2005 (Unofficial Headings agreements (Headings) by the Author)

Earlier Treaty Law Relating to paragraphs of Article 8bis SUA Protocol 2005

Definitions

para. 10 lit. e) (defining “law enforcement or other authorized officials”) Generally: Art. 1 SUA Protocol 2005

Generally: Art. 1 UN Narcotics Convention 1988 Generally: Art. 3 Migrant Smuggling Protocol

Object and Purpose of the Agreement

para. 1 (Preamble)

art. 17 para. 1 UN Narcotics Convention 1988 art. 7 Migrant Smuggling Protocol

Cases of Suspect Vessels

para. 3 (Suitability of a Boarding) paras. 4 and 5 (Reasons for Requests by State Parties)

art. 17 paras. 2 and 6 UN Narcotics Convention 1988 art. 8 paras. 1 and 5 Migrant Smuggling Protocol

Operations in International Waters100

para. 2 (Form of Requests) paras. 4 and 5 (Reasons for Requests by State Parties) para. 7 (Conditions)

art. 17 paras. 2 and 6 UN Narcotics Convention 1988 art. 8 paras. 1 and 5 Migrant Smuggling Protocol

Jurisdiction over Detained Vessels

para. 8 (Jurisdiction) para. 10 c) (Non-Interference)

art. 91, 92 and 94 UNCLOS art. 5 and 6 High Seas Convention art. 17 para. 11 UN Narcotics Convention 1988 art. 9 para. 3 Migrant Smuggling Protocol

100 Or entitled “Operations Beyond the Territorial Sea”; some treaties explicitly include a following provision on “Operations in the Territorial Sea of a Third State” (see Art. 5 of the US agreement with St. Vincent and the Grenadines) but usually a further subheading under Art. 4 entitled, e.g., “Shipboarding Otherwise in accordance with International Law”, addresses this issue as well.

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“Template” of US Paragraph of Article 8bis SUA bilateral shipboarding Protocol 2005 (Unofficial Headings agreements (Headings) by the Author)

Earlier Treaty Law Relating to paragraphs of Article 8bis SUA Protocol 2005

para. 2 (Form of Requests) Exchange of para. 6 (Evidence and Results of a Information and Notification of Results Boarding) of Actions of the Security Forces

art. 17 para. 8 UN Narcotics Convention 1988 art. 8 para. 3 Migrant Smuggling Protocol

Conduct of Security Force Officials

para. 9 (Proportionality) para. 14 (Empowerment of Officials)

art. 22 para. 1 f) Agreement for the Implementation of the Provisions of UNCLOS Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks

Safeguards

para. 10 (Safeguards)

art. 17 para. 5 of the UN Narcotics Convention 1988

Use of Force

para. 9 (Proportionality)

art. 9 para. 1 Migrant Smuggling Protocol

Exchange and Knowledge of Laws and Policies of Other Party

–

–

Points of Contact

para. 15 (Designated Authority)

–

Disposition of Seized para. 6 (Evidence and Results of Property Boardings)

art. 17 para. 8 UN Narcotics Convention 1988 art. 8 para. 3 Migrant Smuggling Protocol

Claims

art. 9 para. 2 Migrant Smuggling Protocol art. 22 para. 3 High Seas Convention

para. 10 lit. b) (Liability)

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(cont.) “Template” of US Paragraph of Article 8bis SUA bilateral shipboarding Protocol 2005 (Unofficial Headings agreements (Headings) by the Author)

Earlier Treaty Law Relating to paragraphs of Article 8bis SUA Protocol 2005

Disputes and Consultations

– Generally: Art. 16.1 SUA Protocol 2005

– Generally: Art. 32 UN Narcotics Convention 1988 Generally: Art. 20 Migrant Smuggling Protocol

Effect on Rights, Privileges and Legal Positions

para. 11 (Non-application in other Circumstances)

art. 110 UNCLOS art. 51 UN Charter

Cooperation and Assistance

para. 12 (Standard Operating Procedures for Joint Operations) para. 13 (Further Bilateral Cooperation)

art. 17 para. 9 UN Narcotics Convention 1988 art. 17 Migrant Smuggling Protocol

Entry into Force and Duration

art. 17 para. 7 UN Narcotics para. 15 (Designated Authority) (See generally Art. 19 SUA Protocol Convention 1988 art. 8 para. 6 Migrant Smuggling 2005) Protocol

Rights for Third States para. 10 lit. c) (Non-Interference)

art. 91, 92 and 94 UNCLOS art. 5 and 6 High Seas Convention art. 17 para. 11 UN Narcotics Convention 1988 art. 9 para. 3 Migrant Smuggling Protocol

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Annex II: text of Article 8bis SUA Protocol 2005 1

2

3

4

5

States Parties shall cooperate to the fullest extent possible to prevent and suppress unlawful acts covered by this Convention, in conformity with international law, and shall respond to requests pursuant to this article as expeditiously as possible. Each request pursuant to this article should, if possible, contain the name of the suspect ship, the IMO ship identification number, the port of registry, the ports of origin and destination, and any other relevant information. If a request is conveyed orally, the requesting Party shall confirm the request in writing as soon as possible. The requested Party shall acknowledge its receipt of any written or oral request immediately. States Parties shall take into account the dangers and difficulties involved in boarding a ship at sea and searching its cargo, and give consideration to whether other appropriate measures agreed between the States concerned could be more safely taken in the next port of call or elsewhere. A State Party that has reasonable grounds to suspect that an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committed involving a ship flying its flag, may request the assistance of other States Parties in preventing or suppressing that offence. The States Parties so requested shall use their best endeavours to render such assistance within the means available to them. Whenever law enforcement or other authorized officials of a State Party (“the requesting Party”) encounter a ship flying the flag or displaying marks of registry of another State Party (“the first Party”) located seaward of any State’s territorial sea, and the requesting Party has reasonable grounds to suspect that the ship or a person on board the ship has been, is or is about to be involved in the commission of an offence set forth in article 3, 3bis, 3ter or 3quater, and the requesting Party desires to board, (a) it shall request, in accordance with paragraphs 1 and 2 that the first Party confirm the claim of nationality, and (b) if nationality is confirmed, the requesting Party shall ask the first Party (hereinafter referred to as “the flag State”) for authorization to board and to take appropriate measures with regard to that ship which may include stopping, boarding and searching the ship, its cargo and persons on board, and questioning the persons on board in order to determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committed, and (c) the flag State shall either:

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(i) authorize the requesting Party to board and to take appropriate measures set out in subparagraph (b), subject to any conditions it may impose in accordance with paragraph 7; or (ii) conduct the boarding and search with its own law enforcement or other officials; or (iii) conduct the boarding and search together with the requesting Party, subject to any conditions it may impose in accordance with paragraph 7; or (iv) decline to authorize a boarding and search. The requesting Party shall not board the ship or take measures set out in subparagraph (b) without the express authorization of the flag State. (d) Upon or after depositing its instrument of ratification, acceptance, approval or accession, a State Party may notify the SecretaryGeneral that, with respect to ships flying its flag or displaying its mark of registry, the requesting Party is granted authorization to board and search the ship, its cargo and persons on board, and to question the persons on board in order to locate and examine documentation of its nationality and determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committed, if there is no response from the first Party within four hours of acknowledgement of receipt of a request to confirm nationality. (e) Upon or after depositing its instrument of ratification, acceptance, approval or accession, a State Party may notify the SecretaryGeneral that, with respect to ships flying its flag or displaying its mark of registry, the requesting Party is authorized to board and search a ship, its cargo and persons on board, and to question the persons on board in order to determine if an offence set forth in article 3, 3bis, 3ter or 3quater has been, is being or is about to be committed. The notifications made pursuant to this paragraph can be withdrawn at any time. When evidence of conduct described in article 3, 3bis, 3ter or 3quater is found as the result of any boarding conducted pursuant to this article, the flag State may authorize the requesting Party to detain the ship, cargo and persons on board pending receipt of disposition instructions from the flag State. The requesting Party shall promptly inform the flag State of the results of a boarding, search, and detention conducted pursuant to this article. The requesting Party shall also promptly inform the flag State of the discovery of evidence of illegal conduct that is not subject to this Convention.

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8

9

10

79

The flag State, consistent with the other provisions of this Convention, may subject its authorization under paragraph 5 or 6 to conditions, including obtaining additional information from the requesting Party, and conditions relating to responsibility for and the extent of measures to be taken. No additional measures may be taken without the express authorization of the flag State, except when necessary to relieve imminent danger to the lives of persons or where those measures derive from relevant bilateral or multilateral agreements. For all boardings pursuant to this article, the flag State has the right to exercise jurisdiction over a detained ship, cargo or other items and persons on board, including seizure, forfeiture, arrest and prosecution. However, the flag State may, subject to its constitution and laws, consent to the exercise of jurisdiction by another State having jurisdiction under article 6. When carrying out the authorized actions under this article, the use of force shall be avoided except when necessary to ensure the safety of its officials and persons on board, or where the officials are obstructed in the execution of the authorized actions. Any use of force pursuant to this article shall not exceed the minimum degree of force which is necessary and reasonable in the circumstances. Safeguards: (a) Where a State Party takes measures against a ship in accordance with this article, it shall: (i) take due account of the need not to endanger the safety of life at sea; (ii) ensure that all persons on board are treated in a manner which preserves their basic human dignity, and in compliance with the applicable provisions of international law, including international human rights law; (iii) ensure that a boarding and search pursuant to this article shall be conducted in accordance with applicable international law; (iv) take due account of the safety and security of the ship and its cargo; (v) take due account of the need not to prejudice the commercial or legal interests of the flag State; (vi) ensure, within available means, that any measure taken with regard to the ship or its cargo is environmentally sound under the circumstances; (vii) ensure that persons on board against whom proceedings may be commenced in connection with any of the offences set

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(b)

(c)

(d)

(e)

forth in article 3, 3bis, 3ter or 3quater are afforded the protections of paragraph 2 of article 10, regardless of location; (viii) ensure that the master of a ship is advised of its intention to board, and is, or has been, afforded the opportunity to contact the ship’s owner and the flag State at the earliest opportunity; and (ix) take reasonable efforts to avoid a ship being unduly detained or delayed. Provided that authorization to board by a flag State shall not per se give rise to its liability, States Parties shall be liable for any damage, harm or loss attributable to them arising from measures taken pursuant to this article when: (i) the grounds for such measures prove to be unfounded, provided that the ship has not committed any act justifying the measures taken; or (ii) such measures are unlawful or exceed those reasonably required in light of available information to implement the provisions of this article. States Parties shall provide effective recourse in respect of such damage, harm or loss. Where a State Party takes measures against a ship in accordance with this Convention, it shall take due account of the need not to interfere with or to affect: (i) the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea; or (ii) the authority of the flag State to exercise jurisdiction and control in administrative, technical and social matters involving the ship. Any measure taken pursuant to this article shall be carried out by law enforcement or other authorized officials from warships or military aircraft, or from other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect and, notwithstanding articles 2 and 2bis, the provisions of this article shall apply. For the purposes of this article “law enforcement or other authorized officials” means uniformed or otherwise clearly identifiable members of law enforcement or other government authorities duly authorized by their government. For the specific purpose of law enforcement under this Convention, law enforcement or other

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12

13 14

15

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authorized officials shall provide appropriate government-issued identification documents for examination by the master of the ship upon boarding. This article does not apply to or limit boarding of ships conducted by any State Party in accordance with international law, seaward of any State’s territorial sea, including boardings based upon the right of visit, the rendering of assistance to persons, ships and property in distress or peril, or an authorization from the flag State to take law enforcement or other action. States Parties are encouraged to develop standard operating procedures for joint operations pursuant to this article and consult, as appropriate, with other States Parties with a view to harmonizing such standard operating procedures for the conduct of operations. States Parties may conclude agreements or arrangements between them to facilitate law enforcement operations carried out in accordance with this article. Each State Party shall take appropriate measures to ensure that its law enforcement or other authorized officials, and law enforcement or other authorized officials of other States Parties acting on its behalf, are empowered to act pursuant to this article. Upon or after depositing its instrument of ratification, acceptance, approval or accession, each State Party shall designate the authority, or, where necessary, authorities to receive and respond to requests for assistance, for confirmation of nationality, and for authorization to take appropriate measures. Such designation, including contact information, shall be notified to the Secretary-General within one month of becoming a Party, who shall inform all other States Parties within one month of the designation. Each State Party is responsible for providing prompt notice through the Secretary-General of any changes in the designation or contact information.

CHAPTER 4

Sovereign Immune Vessels: Immunities, Responsibilities and Exemptions Ted L. McDorman Introduction Although the navigation and shipping provisions of UNCLOS1 were negotiated foremost within the context of freedom of vessel navigation for military and strategic purposes, few of the provisions draw a distinction between military and commercial navigation and vessels.2 This contribution explores one of the significant differences between military and commercial vessels in the Convention and international law that sovereign immunity attaches to noncommercial vessels. There is little public evidence of questions or disputes arising in recent years respecting sovereign immune vessels. The exception is the 2012 “ARA Libertad” case between Argentina and Ghana, commented upon in detail below, which involved Argentina requesting provisional measures from the International Tribunal for the Law of the Sea (ITLOS),3 and raised questions concerning the application of UNCLOS to a warship under the flag of one state in the port of another state. Nevertheless, the immunities, responsibilities and exemptions for sovereign immune vessels arise as an operational matter for both flag and coastal states on a regular basis.

* Professor, University of Victoria. 1  U.N. Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397. 2  For a few well-chosen words on this, see: E. Gold “The Future of Maritime Transit” in J. Van Dyke, L.M. Alexander and J.R. Morgan (eds) International Navigation: Rocks and Shoals Ahead? (Law of the Sea Institute, Honolulu: 1988) 394–399, including at 395: “There are very clear differences between ‘clear’ strategic maritime interests and traditional commercial navigation. The former always seeks the protection of legal principles but is rarely averse to breaking them. The latter only needs to protection of such principles when they are breached by the former.” 3  The “ARA Libertad” case (Argentina v. Ghana), Provisional Measures, 15 December 2012, on the International Tribunal for the Law of the Sea website at .

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004303508_005

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The question of what vessels are immune, what immunities exist for such vessels, what powers a coastal state has regarding such vessels and what responsibilities exist on the flag state of immune vessels is partially set out in UNCLOS and, more importantly, informed by the broader international law respecting the jurisdictional immunities of states and, as such, fits squarely within the wording of paragraph 8 of the Preamble to UNCLOS: “. . . matters not regulated by this Convention continue to be governed by the rules and principles of general international law.” The relevant law on immunity involves diplomatic immunity, governed largely by 1961 Vienna Convention on Diplomatic Relations,4 consular relations, governed by the 1963 Vienna Convention on Consular Relations,5 and state (or sovereign) immunity governed by customary international law.6 The U.N. Convention on Jurisdictional Immunities of States and Their Property, a product of the International Law Commission, which has much to say respecting state immunity and contains a specific article on vessels,7 is not yet in force. Brownlie notes that a “foreign public vessel . . . attracts the character of sovereign immunity,” further stating that: “Yet the warship remains for many purposes an independent area of foreign competence” and that: “the armed public vessel, by its function and physical autonomy, has a special inviolability”.8 The rationale for sovereign immunity is the same across the differing areas and was well captured by the International Court of Justice in 2012: [T]he rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order.9 4  Vienna Convention of Diplomatic Relations, 18 April, 1961, 500 UNTS 95. 5  Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261. 6  Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), [2012] ICJ Reports 99, at p. 123, para. 56. 7  U.N. Convention on Jurisdictional Immunities of States and Their Property, 3 June 2004, (2005), 44 ILM 803, Article 16. See generally on the Convention: R. O’Keefe and C. Tams (eds.) The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary (Oxford University Press, Oxford: 2013) and H. Fox and P. Webb The Law of State Immunity (Oxford University Press, 3rd ed., Oxford: 2013), at 284–333. 8  I. Brownlie, Principles of Public International Law (Oxford University Press, 7th ed., Oxford: 2008), at 371–372. Note also: Fox and Webb, note 7 at 108–110. 9  Jurisdictional Immunities case, note 6 at 123, para. 57.

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Brownlie notes that the rationale for state immunity “rests equally on the dignity of the foreign nations, its organs and representatives, and on the functional need to leave them unencumbered in the pursuit of their mission.”10 Operationally, it has been observed that sovereign immunity means that “no state can claim jurisdiction over another.”11 This contribution surveys the immunities, responsibilities and exemptions of sovereign immune vessels as this is part of the broader story of coastal state jurisdiction over foreign vessels and the responsibility and liability that exists on flag states.12

The “ARA Libertad” Case

The 2012 “ARA Libertad” case put the question of rights and duties respecting sovereign immune vessels in the spotlight, however briefly. What led to the ARA Libertad Case was a Ghanaian judicial decision that the immunity from the courts that would otherwise exist for the naval vessel under the national laws of Ghana had been waived by Argentina.13 The domestic proceedings involved a request by holders of bonds issued by the government of Argentina to recognize and enforce a foreign judgment from the United States respecting default on the bonds and to seize the ARA Libertad an asset of the government of Argentina. The waiver of immunity was seen as arising from the terms of the bonds issued by the government of Argentina. As a consequence of the Ghanaian court recognizing and seeking to enforce the U.S. judgment, amongst other things, the vessel was denied permission to leave port and an attempt was made to board the vessel without the permission of the government of Argentina. Pursuant to the dispute settlement procedures in UNCLOS, Argentina commenced the case against Ghana on 29 October 2012 alleging that Ghana had breached numerous provisions of the Convention by, amongst other things,

10  Brownlie, note 8 at 326. 11  R. Jennings and A. Watts (eds.) Oppenheim’s International Law (Longman, 9th ed., New York: 1996) at 341. 12  The sovereign immunity questions that arise respecting sunken vessels are not dealt with in this contribution. See generally: J.A. Roach and R.W. Smith, Excessive Maritime Claims 3rd (Martinus Nijhoff, Leiden: 2012) at 535–558. 13  For a more detailed review of the facts, see: J. Kraska “The ‘ARA Libertad’ (Argentine v. Ghana)” (2013) 107 American Journal of International Law 404, at 404–405.

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preventing the ARA Libertad from leaving port.14 As permitted under UNCLOS Article 290(5), pending the establishment of an arbitral tribunal under Annex VII, on 14 November 2012, Argentina brought a request for provisional measures to the ITLOS, specifically seeking an order that Ghana allow the ARA Libertad to leave port.15 The government of Ghana was in the peculiar situation of having argued in its national courts in favour of the immunity of the Argentine vessel and now being called upon to defend the decision of its national court. The dispute settlement procedures of UNCLOS are only available to states respecting “disputes . . . concerning the interpretation and application” of the convention.16 In a provisional measures application under Article 290(5), the ITLOS must first determine whether the arbitral tribunal to be established would have prima facie jurisdiction over the matter in dispute before the ITLOS has jurisdiction regarding the request for of provisional measures. In the provisional measures action, it was accepted by Ghana that Argentina had requested and received permission for the ARA Libertad to enter Ghana’s internal waters (port)17 and that the vessel, a sailing ship used for training, was a warship. Moreover, the ITLOS noted that it was not disputed by Ghana that “in accordance with general international law, a warship enjoys immunity, including in internal waters . . .”18 The core argument raised by Ghana was the threshold issue that the ITLOS did not have jurisdiction to hear the matter as there was no dispute between the two parties regarding the interpretation or application of UNCLOS. On this, the ITLOS sided with Ghana that the detention of the ARA Libertad did not contravene, as alleged by Argentina, Article 18(1)(b), concerning passage in the territorial sea or Articles 87 and 90 concerning navigational freedoms on the high seas.19 However, the ITLOS sided with Argentina stating that there “appears to exist” a difference of opinion between the two states as regards the applicability of Article 32 and that this afforded the Tribunal with a basis upon which prima facie jurisdiction could be founded, with the result that the ITLOS had jurisdiction to consider the request for provisional measures.20

14  “ARA Libertad” case, note 3 at para. 26. 15  Ibid., para. 27. 16  UNCLOS, Articles 279 and 288(1). 17  “ARA Libertad” case, note 3 at para. 38. 18  Ibid., para. 95. 19  Ibid., para. 61. 20  Ibid., para. 65.

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Article 32 provides: With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes. Ghana argued that this provision, being in Part II of UNCLOS, “Territorial Sea and Contiguous Zone” and making no reference to internal waters, was not applicable to Ghana’s detention of the ARA Libertad in its port with the result that there was no dispute regarding the interpretation or application of Article 32. The ITLOS, in not siding with Ghana, noted that the geographic scope of Article 32 was not specified and that some of the provisions in Part II may have applicability to all maritime areas, not being confined to the territorial sea or contiguous zone and, as an example, pointed to Article 29 which, “For the purposes of this Convention,” provides a definition of warships.21 In a well-argued Joint Separate Opinion, Judges Wolfrum and Cot reached a different conclusion on this point stating that: “the question of the immunity of warships in foreign internal waters, including ports, is a rule of customary international law which is not incorporated in the Convention.”22 They further note that Article 32 does not establish the immunity of warships, rather the immunity “is taken for granted,”23 and that Article 32 does not “incorporate the customary international law on warship immunity into the Convention”, rather: “It simply takes the immunity of warships as a fact.”24 More generally they comment that “internal waters in principle are not covered by the Convention but by customary international law.”25 Nevertheless, the two Judges indicated that the ITLOS had prima facie jurisdiction based on procedural estoppel.26 The ITLOS unanimously decided on the provisional measure—“Ghana shall forthwith and unconditionally release the frigate ARA Libertad.”27 In reaching this result, the ITLOS took into account, amongst other things, that:

21  Ibid., para. 64. 22  “ARA Libertad” case, note 3 Joint Separate Opinion of Judge Wolfrum and Judge Cot, para. 7 and see paras. 43 and 47. 23  Ibid., para. 41. 24  Ibid., para. 50. 25  Ibid., para. 26. 26  Ibid., para. 68. The details of this are not relevant here. 27  “ARA Libertad” case, note 3 at para. 108(1).

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• “a warship is an expression of the sovereignty of the State whose flag it flies;”28 • “. . . any act which prevents by force a warship from discharging its mis-

sion . . . is a source of conflict that may endanger friendly relations among States;”29 and “. . . actions taken by the Ghanaian authorities to prevent the ARA Libertad . . . from discharging its mission . . . affect the immunity enjoyed by this warship under general international law.”30

•

All of which point to the international legal sanctity of warship immunity from interference by other states.31 Following a reversal of the original Ghanaian court decision by Supreme Court of Ghana in June 2013, the ARA Libertad was permitted to leave Ghana and the two states agreed to the discontinuance of arbitral proceedings under UNCLOS.32 The ARA Libertad case did not engage directly with the content or application of vessel sovereign immunity. Nevertheless, the case put into the spotlight the international legal rules regarding immunities, responsibilities and exemptions that attach to warships and other government ships engaged in activities not captured by the international law of armed conflict.

Warships and Other Government Ships

As noted above, warships is a defined term in UNCLOS (Article 29) which was drawn, with modification, from Article 8(2) of the 1958 High Seas Convention.33

28  Ibid., para. 94. 29  Ibid., para. 97. 30  Ibid., para. 98. 31  Kraska, note 13 at 408 comments that: “The order is important for upholding the immunity of a warship broadly and inclusively . . .” and that: “The inclusive definition of sovereign immunity and the applicability to port facilities and internal waters should provide a level of comfort for conventional naval forces concerned about attempts by coastal states and port states to exercise jurisdiction over warships . . .” 32  Argentina-Ghana “ARA Libertad” Arbitration Agreement, 27 September 2013, available on the website of the Permanent Court of Arbitration at www.pca-cpa.org. 33  Convention on the High Seas, 29 April 1958, 450 UNTS 82.

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For the purposes of this Convention, “warship” means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.34 Oxman notes that one of the alterations in the UNCLOS definition from that in the 1958 Convention is that a vessel need only belong to “the armed forces” of a state, rather than being a naval vessel, which, it is suggested, broadens the scope of warships to cover, amongst other things, coast guards that are units of the armed forces.35 Commentators have also noted that the definition, while located in Part II of the Convention, through the use of the wording “For the purposes of this Convention,” applies throughout UNCLOS.36 In UNCLOS, warships are often coupled with:

• “government ships operated for non-commercial purposes”(Articles 31 and 32); • ships “owned or operated by a State and used only on government noncommercial service” (Article 96); • “government ship” (Article 102); and • “naval auxiliary, other vessels owned or operated by a State and used, for the time being, only on government non-commercial service” (Article 236).

Warships have been described as a “special subclass” of government ships operated for non-commercial purposes.37 This captures the larger point that government ships operated for non-commercial purposes, including warships, are organs of the flag state for the purposes of the application of immunity.38 The distinction between warships and other government ships is important in UNCLOS as there are situations of specific activities and rules only applicable to warships and related vessels. For example, only warships and “any 34  See also: W. Heintschel von Heinegg, “Warships,” Max Planck Encyclopedia of Public International Law (April 2009), online at and Oppenheim’s Inter­ national Law, note 11 at 1166. 35  B.H. Oxman, “The Regime of Warships under the United Nations Convention on the Law of the Sea” (1984), 24 Virginia Journal of International Law 809, at 813 and see: S.N. Nandan and S. Rosenne (eds) United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. II (Martinus Nijhoff, Dordrecht: 1993), at 252. 36  Ibid., at 812–813, footnote 7 and Nandan and Rosenne, note 35 at 252. 37  Ibid., at 813. 38  Oppenheim’s International Law, note 11 at 1165–1166.

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other duly authorized ships . . . clearly marked and marked and identifiable as being on government service” have a right of visit of a foreign ship on the high seas.39 Somewhat similar wording exists as regards hot pursuit which can only be undertaken by warships “or other ships . . . clearly marked and identifiable as being on government service and authorized to that effect,”40 and as regards the seizure of vessels on account of piracy.41 The latter mirrors the wording of provisions in the 1958 High Seas Convention;42 whereas the wording on the right of visit expands the text of Article 22(2) of the High Seas Convention which referenced only warships.43 The distinction between government ships operated for non-commercial purposes and those engaged in commercial purposes reflects the differentiation between jure imperii (acts of state) and jure gestionis (commercial acts) in the international law and practice regarding immunity and the idea that it is only acts of state that should be covered by immunity and not acts that are commercial in nature.44 In the case of ships, the distinction reaches back at least to the 1926 Brussels Convention for the Unification of certain Rules concerning the Immunity of State-owned Vessels45 and is articulated in Article 16 the 2004 U.N. Jurisdictional Immunities Convention.46 Both of these Conventions recognize that government-owned or -operated vessels used for commercial purposes do not have immunity from legal proceedings relating to “the operation” of the vessel, whereas this immunity does attached to warships and other government vessels not operated for commercial purposes.47 The 39  UNCLOS, Article 110(1) and (5). 40  Ibid., Article 111(5). 41  Ibid., Article 107. 42  High Seas Convention, note 33 Article 23(4) respecting hot pursuit and Article 21 respecting piracy. 43  Oxman, note 35 at 827–828. 44  See generally: Brownlie, note 8 at 327–336 and Fox and Webb, note 7 at 395–420. 45  Convention for the Unification of certain Rules concerning the Immunity of State-owned Vessels, 10 April 1926, and 1934 Protocol, 179 L.N.T.S. 199. See generally: Fox and Webb, note 7 at 114–115. 46  Jurisdictional Immunities Convention, note 7 Article 16(1) and (2). For a detailed commentary on Article 16, see: Douglas Guilfoyle, “Article 16” in O’Keefe and Tams, note 7 at 259–276 and Fox and Webb, note 7 at 431–434. 47  Ibid., Article 16(1) and Immunity of State-owned Vessels Convention, note 45 Article 1.  Neither of these two provisions provides direction as regards what claims or proceedings are covered. Guilfoyle, note 46 at 268 comments: “The exception does not extend to proceedings relating to possession over or ownership of a ship operated by a State or purportedly owned by it. At the same time, the expression ‘a proceeding which relates to the operation of [a] ship’ is clearly capable of encompassing a wide range of claims.”  See further Guilfoyle, at 268–269 and 263–264.

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commercial exception to immunity from proceedings for state owned vessels in these Conventions is narrow. Whether or not a particular vessel is one to which sovereign immunity applies is a question of fact much informed by the function of a vessel, physical characteristics and the relationship between the vessel and the flag state. Article 16(6) of the U.N. Jurisdictional Immunities Convention takes the view that “a certificate signed by” a flag state representative “shall serve as evidence of the character” of the vessel as a government one and/or one engaged in non-commercial activity.48 This wording, which is different than that in the 1926 Convention where a certificate from the flag state “shall be conclusive evidence” of the status of the vessel,49 is understood as allowing for rebuttable evidence to be presented by the local state.50

Navigation and Operational Rights51

Subject to treaty obligations, no vessel of a foreign state has a right to enter the ports (internal waters) of another state.52 This is most emphatically the case respecting a warship or other government vessel of a foreign state.53 As noted above, in the case of the ARA Libertad there was an agreement between Ghana and Argentina that the warship could enter and visit Ghana’s port.54 48  Ibid., Article 16(6). 49  Immunity of State-owned Vessels Convention, note 45 Article 5. 50  See: “Report of the International Law Commission on the work of its forty-third session (29 April–19 July 1991),” Draft Articles on Jurisdictional Immunities of States and Their Property, Commentary, in Yearbook of the International Law Commission, Vol. II (New York, 1991) at 53, para. 16 and Guilfoyle, note 46 at 274–275. 51  The navigational and operational rights of sovereign immune vessels, in particular, warships are constrained by the international legal rules respecting the prohibition on the use or threat of force against another state. These constraints will not be discussed in this contribution. 52  See generally: L. de Lafayette, “Access to Ports in International Law,” (1996), 11 International Journal of Marine and Coastal Law 1. There is an exception for vessels in distress. See e.g. the contribution by A. Chircop in chapter 6 of this volume. 53  A.A. Kovalev, Contemporary Issues of the Law of the Sea: Modern Russian Approaches (edited and translated by W.E. Butler) (Eleven International Publishing, Utrecht: 2004) at 11 notes: “Certain States, in particular, the Russian Federation, devote considerable attention to the regulation of foreign warships entering internal sea waters and ports. The legislation of these States, as a rule, provides an authorization procedure for foreign warships to enter ports.” 54  “ARA Libertad” case, note 3 para. 38.

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D.P. O’Connell points out, “[o]ne of the most controversial questions concerning the territorial sea has been the right of passage of warships” and whether such vessels must have prior authorization or give prior notification for the exercise of innocent passage rights.55 The approach in UNCLOS is that the key navigational rights of innocent passage in the territorial sea and archipelagic waters (Articles 17 and 52), transit passage in straits used for international navigation (Article 38), archipelagic sealane passage (Article 53) and high seas navigational freedoms that apply as well in the EEZ (Articles 87, 90 and 58(1) and (2)) attach to all vessels of which sovereign immune vessels are a subset. Oxman has summarized: “[i]f there is anything that is clear from the legislative record of the Conference on the Law of the Sea, it is that one of the primary motivations of the major maritime powers in negotiating a new Convention was to protect the broadest possible freedom to conduct military activities at sea.”56 For warships this would entail maneuvers, patrols, anchoring, surveillance and weapons exercises57 and for all government vessels this includes the right to exercise of the navigational rights set out in UNCLOS. Despite the above-asserted clarity, there are differences of views amongst states on the application of navigational rights (in particular, innocent and transit passage rights) and the conditioning of such rights respecting warships and other sovereign immune vessels in the territorial sea.58 There are also differing views among states on whether UNCLOS and/or international law permits certain types of actions by sovereign immune vessels (i.e., warships) within a coastal states waters whether they be the territorial sea or the EEZ.59 These matters are beyond the scope of this contribution. Immunities The principal sovereign vessel immunity provisions in UNCLOS are Articles 95 and 96: Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. 55  D.P. O’Connell, The International Law of the Sea (Clarendon Press, Oxford: 1982) at 274 and see 274–293. 56  Oxman, note 35 at 831–832. 57  Ibid., at 826. 58  See the contribution by James Kraska in chapter 7 of this volume, section 3. 59  See: ibid., section 4.

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Ships owned or operated by a State and used only on government noncommercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State. These provisions are identical to the wording in the 1958 High Seas Convention.60 Rothwell and Stephens are of the view that these provisions are part of customary international law.61 On the high seas the immunity of a state vessel can be understood as tied to the exclusive jurisdiction that a flag state has over its vessels62 with the consequence that, without a basis in an international treaty, other states cannot interfere in any way with another state’s vessels. While explicit as regards the high seas, as a result of UNCLOS Article 58(2), the immunity for the state vessels noted above apply as well within the EEZ of a state.63 There also exists the exclusivity of flag state jurisdiction and the situation that, without a basis in an international treaty, other states cannot interfere in any way with a sovereign immune vessel in its EEZ. Unlike for the high seas, however, within the EEZ UNCLOS provides to the coastal state exclusive jurisdiction over a large number of resource-based activities which can result in concurrent prescriptive jurisdiction over vessels. The above provisions on immunity from jurisdiction do not apply within the territorial sea or internal waters.64 Here, as noted above, it is UNCLOS Article 32 that is relevant: “. . . nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes.” Oxman comments—“[c]ompared with the ringing declaration of ‘complete immunity . . .’ on the high seas . . ., the formulation ‘nothing in this Convention affects’ seems somewhat less decisive.”65 Essentially, as opined by Judges Wolfrum and Cot and supported by Oxman,66 Article 32 does not, unlike Articles 95 and 96, restate customary international law, rather Article 32 indicates or presumes that the customary international law of warship and government vessel immunity within the territorial sea and international 60  High Seas Convention, note 33 Articles 8(1) and 9. 61  D.R. Rothwell and T. Stephens, The International Law of the Sea (Hart Publishing, Oxford: 2010), at 161. 62  UNCLOS, Article 92(1). 63  S.N. Nandan and S. Rosenne, (eds) United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. III (Martinus Nijhoff, Dordrecht: 1995), at 156 and 164. 64  Oxman, note 35 at 816. 65  Ibid., at 817–818. 66  Ibid., at 818.

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waters applies. Nevertheless, the ARA Libertad case suggests that Article 32 may incorporate the customary international law of the state vessel immunity into UNCLOS.67 The immunity afforded a sovereign-immune vessel involves immunity from court procedures of another state respecting the enforcement of its national laws, the bringing of claims, and pre-and post-judgment orders of arrest, seizure or execution. As already noted, the U.N. Jurisdictional Immunities Convention sets out that state immunity involves immunity of state vessels from the court procedures of another state respecting “the operation” of the vessel68 and extends this immunity to claims brought involving cargoes on such vessels.69 However, the 1926 Immunity of State-owned Vessels Convention provides that amongst its states parties immunity does not exist in that claims can be brought in the courts of the vessel-owner arising from collisions or other accidents, salvage or contracts for repairs or supplies.70 The 1926 Convention will prevail between Parties when the U.N. Jurisdictional Immunities Convention comes into force.71 While not in the Jurisdictional Immunities Convention, it has been asserted that, for a warship in port, no legal proceedings can be taken against a crew member without the permission of the captain.72 The “ARA Libertad” Case indicates that a warship’s immunity in port extends to attempts to board without permission,73 which is consistent with the summary by Kraska of vessel immunities being “from arrest or search, whether in national or international waters.”74 In addition to immunity from proceedings, the “ARA Libertad” Case indicates that vessel immunity includes that a vessel cannot be detained in port. Kraska further states that: “The privilege 67  Kraska, note 13 at 409 comments: “In the choice between reading Article 32 to exclude immunity under the Convention and reading the article to incorporate immunity under international law by reference, the text and negotiations suggest the latter analysis is stronger. The final decision, however, awaits an order on the merits.” 68  Jurisdictional Immunities Convention, note 7 Article 16 (2) and see above note 47. 69  Ibid., Article 16(4). 70  Immunity of State-owned Vessels Convention, note 45 Article 3. Close to 30 states are party to the 1926 Convention including 13 European states (Denmark, Estonia, France, Germany, Greece, Hungary, Italy, the Netherlands, Poland, Portugal, Sweden, Switzerland and the United Kingdom). 71  See: Jurisdictional Immunities Convention, note 7 Article 26. 72  See: Oppenheim’s International Law, note 11 at 1167–1168. 73  See also: ibid. 74  J. Kraska, Maritime Power and the Law of the Sea (Oxford University Press, New York: 2011), at 248.

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of sovereign immunity includes protecting the identity of personnel, stores, weapons, or other property on board the vessel.”75 Most, if not all, of the above immunities easily fit within the underlying purposes of the international law of state immunity and is indicative that the immunity applicable to state vessels extends beyond just immunity in the context of judicial proceedings noted in Article 16 of the Jurisdictional Immunities Convention. While it is the case that as regards diplomatic immunity the extent (or nature) of the immunity that exists is tiered depending on the status of the person involved,76 all sovereign immune vessels, irrespective of their function or nature, are entitled to the same level of immunity.77 Responsibilities The actions of sovereign immune vessels, being organs of a state, unquestionably engage the international legal responsibility of the flag state and the relevant customary international law.78 This is the so-called “flip side” of a vessel having immunity status.79 As made clear above, the immunity that attaches to a state vessel is from direct interference with the mission of the vessel by another state and not an immunity from the international legal obligations set out for vessels/ships in UNCLOS, in other treaties or in customary international law.80 Oxman captures this as follows:

• “immunity from enforcement jurisdiction of the coastal State does not

excuse a warship from the duty to respect the provisions of the Convention regarding the regulation of innocent passage;”81 and

75  Ibid. 76  See: Vienna Convention on Diplomatic Relations, note 4 Article 37. 77  See: Kraska, note 74 at 252–253. 78  See generally: B.D. Smith, State Responsibility and the Marine Environment: The Rules of Decision (Clarendon Press, Oxford: 1988) at 156. 79  Florian H. Th. Wegelein, Marine Scientific Research: The Operation and Status of Research Vessels and Other Platforms in International Law (Martinus Nijhoff, Leiden: 2005) at 349. 80  Jurisdictional Immunities case, note 6 at 143, para. 100: “. . . whether a State is entitled to immunity before the courts of another State is a question entirely separate from whether the international responsibility of that State is engaged . . .” 81  Oxman, note 35 at 818.

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•

“The mere fact that warships enjoy a broad range of freedoms in principle does not mean that they, any more than other ships on the high seas, may ignore the rights of others who use the high seas.”82 The immunity enjoyed from national judicial proceedings and enforcement as a result of state and diplomatic immunity does not mean that the local state laws do not apply.83 Essentially, while the local state has prescriptive jurisdiction (jurisdiction to make laws), the local state is without enforcement jurisdiction. For sovereign immune vessels in the internal waters (ports) or territorial sea of a foreign state, the same situation exists. As is the case regarding state and diplomatic immunity, the immunity of a sovereign vessel can be waived such that the local laws can be applied and enforced.84 This is what the first court decided in Ghana—there had been a waiver of immunity by Argentina—such that Ghanaian law applied to and was enforceable against the Argentine vessel.85 It has been suggested that the “complete immunity” for sovereign immune vessels on the high seas set out in UNCLOS Articles 95 and 96 includes immunity from the prescriptive jurisdiction of other states.86 On the high seas, as a result of the exclusivity of flag state jurisdiction over a vessel, all vessels, including sovereign immune vessels, are “immune” from the prescriptive jurisdiction of other states except where there are treaty obligations to the contrary. The situation is more complicated within the EEZ. Clearly, the immunity from enforcement and interference applies to sovereign immune vessels, but are such vessels immune from the prescriptive jurisdiction of the coastal state for matters such as fishing? Can a sovereign immune vessel waive its immunity and allow the vessel to be arrested and/or prosecuted by the coastal state for fishing in the EEZ or does the coastal state law not apply at all to the sovereign immune vessel? Given the wording of Article 58(1) and (2), the better view may be that where UNCLOS provides for coastal state jurisdiction within the EEZ and the immunity that exists for a state vessel is only as regards enforcement jurisdiction. There is no direct international legal obligation on a sovereign immune vessel to comply with the relevant laws of a coastal/port state, thus the terminology used is that state vessels in the waters of another state “are expected 82  Ibid., at 826–827. 83  See: Jurisdictional Immunities case, note 6 at 140, para. 93 and Fox and Webb, note 7 at 21. 84  See generally: Fox and Webb, note 7 at 373–375. 85  See note 13. 86  Roach and Smith, note 12 at 536.

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to comply voluntarily with the laws of the littoral states.”87 Non-compliance by a state vessel with national legislation of a state does not, in itself, give rise to international legal responsibility or liability on behalf of the flag state. International legal responsibility and liability arises only where the national law in question reflects or embodies a rule of international law that a sovereign immune vessel has breached. UNCLOS Article 31 is the relevant provision. The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law. The wording captures two things. First, is the general point that there is flag state international legal responsibility for non-compliance by sovereign immune vessels with provisions of UNCLOS and other rules of international law. The provision, while located in Part II of the Convention, “Territorial Sea and Contiguous Zone,” can be seen as being applicable throughout the Convention and not attached solely to sovereign vessel activity in the territorial sea. This part of Article 31 is tied to other provisions in the Convention that deal with liability and responsibility,88 in particular Article 304: The provisions of this Convention regarding responsibility and liability for damage are without prejudice to the application of existing rules and the development of further rules regarding responsibility and liability under international law. The reference in Article 304 is to the rules on state responsibility prepared by the International Law Commission.89 87  Oppenheim’s International Law, note 11 at 1169. See, however, R.R. Churchill and A.V. Lowe, The Law of the Sea (Manchester University Press, 3rd ed., Manchester: 1999) at 99. 88  See: UNCLOS, Articles 106, 111(8), 235, 263 and 304. 89  S. Rosenne and L.B. Sohn (eds) United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. VI (Martinus Nijhoff, Dordrecht: 1989) at 163–164. See: “Report of the International Law Commission on the work of its fifty-third session (2001), “Draft Articles on Responsibility of States for International Wrongful Acts, with Commentaries” in Yearbook of the International Law Commission, Vol. II (New York, 2001).

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Article 31 further states that there will be international responsibility for loss or damage arising from the breach of national laws or regulations concerning territorial sea passage. This assumes that the national laws and regulations in question are consistent with those permitted to be adopted respecting territorial sea innocent passage under Article 21(1) and for which compliance is required by all foreign ships exercising their right of innocent passage.90 Seen in this way, the above wording of Article 31 is about emphasis or reaffirmation.91 A differently worded provision, albeit with the same general intention, exists regarding transit passage through straits used for international navigation92 with this applying mutatis mutandis to archipelagic sea lanes passage.93 While there is no direct international legal obligation on a sovereign immune vessel to comply with the relevant laws of a coastal/port state, where the laws in question apply to a sovereign immune vessel in port the state can “expel” the vessel.94 Given the fulsome jurisdiction that a state has over its ports and other internal waters, the expulsion may be tied to non-compliance with any law or for that matter for any other reason. Unlike in internal waters, sovereign immune vessels (like all other vessels) have a right of innocent passage that constricts coastal state authority over what is otherwise perceived as equivalent to national territory. UNCLOS Article 30, which is based on Article 23 of the 1958 Territorial Sea and Contiguous Zone Convention,95 seeks to deal with the balance of rights that exist. Article 30 provides that a coastal state may require a warship, which does not comply with coastal state laws and regulations regarding the passage in the territorial sea and disregards any request to comply, “to leave the territorial sea immediately.” Churchill and Lowe note that the coastal state “may use any force necessary” to compel the offending vessel to leave.96 It is only for non-compliance with laws related to territorial sea passage (e.g., customs, navigation, pollution) and not non-compliance with other coastal state laws, for example criminal law, that triggers Article 30.97 Article 30 would seemingly also be applicable where 90  UNCLOS, Article 21(4). 91  Nandan and Rosenne, note 35 at 257 and Rothwell and Stephens, note 61 at 71. 92  UNCLOS, Article 42(5). 93  Ibid., Article 54. 94  Oppenheim’s International Law, note 11 at 1169. 95  Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, 516 UNTS 206. 96  Churchill and Lowe, note 87 at 99. 97  Ibid. See also: N. Klein, Maritime Security and the Law of the Sea (Oxford University Press, Oxford: 2011), at 35 comments: “A coastal State may therefore expect that a warship will respect rules set in place for the protection of the marine environment and the security of the coastal population.”

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a sovereign immune vessel has engaged in activities that make the passage in the territorial sea non-innocent.98 While the application of Article 30 is only explicitly to warships, Churchill and Lowe comment that “it seems reasonable to extend this right of exclusion to non-commercial government-operated ships, since their legal status can, for these purposes, be assimilated to that of warships.”99 Unlike the case of Article 31, which applies to transit passage, innocent passage in archipelagic waters and archipelagic sea lanes passage, Article 30 does not explicitly apply to these passage rights. However, Klein suggests that where a warship is not following the requirements of transit passage (for example, not undertaking “continuous and expeditious transit”) that this would allow the coastal state to expel the warship from the strait immediately.100 It is noted that this is not specifically set out in UNCLOS101 though reference is made to Article 38(3) that “any activity” not an exercise of the right of transit passage “remains subject to the other applicable provisions of this Convention.” No comment is made as regards the expulsion authority of a coastal state where there is non-compliance by a transiting warship with the laws of a coastal state permitted under Article 42. Exemptions LOS Convention, Article 236, entitled “Sovereign Immunity,” deals with sovereign immune vessels and the provisions of the Convention regarding marine environmental pollution. The provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used for the time being, only on government non-commercial service. However, each State shall ensure, by the adoption of appropriate measures not impairing the operations or operational capacities of such vessels or aircraft owned or operated by it, that such vessels or aircraft act in a manner consistent, so far as is reasonable and practicable, with this Convention.

98  Ibid. 99  Ibid. 100  Klein, note 97 at 37. 101  Ibid.

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The two sentence provision is based upon Article 3(3) of the International Convention for the Prevention of Pollution from Ships (MARPOL),102 which in turn has its origin in Article VII(4) of the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter.103 Oxman indicates that the exemption in the first sentence of Article 236 applies to “the duties imposed by the Convention to observe national and international regulations, regarding the protection and preservation of the marine environment”104 and thus is quite broad as it indicates both that sovereign immune vessels are exempt from the application of relevant coastal state legislation on vessel-source pollution (prescriptive jurisdiction), but also, and more importantly, that sovereign immune vessels are exempt from obligations in UNCLOS on the flag state that deal with vessel-source pollution. The international legal effect of the latter is that non-compliance by a sovereign immune vessel with the Convention does not give rise to flag state international legal responsibility and liability as there can be no breach of the Convention, though international responsibility and liability may arise pursuant to customary international law. The second sentence of Article 236 attempts to assuage the concerns about the latter indicating that the flag state is to “ensure, by the adoption of appropriate measures . . . that such vessels . . . act in a manner, so far is reasonable and practicable, with this Convention.” This tortured wording (virtually identical to that in Article 3(3) of the MARPOL Convention) places considerable flexibility on the flag state of a sovereign immune vessel.105 Oxman notes that Article 236 was adopted since: “[p]ollution regulations of a general character, including international regulations, may be inappropriate to the special configuration of certain warships”106 and that assessing compliance by a sovereign vessel of a particular standard “might require the inspection or release of data regarding the ship, its design or its equipment—data which most flag States would be reluctant to disclose.”107 While Article 236 is located in Part XII of UNCLOS, “Protection and Preservation of the Marine Environment,” the wording that sovereign immune 102   International Convention for the Prevention of Pollution from Ships (MARPOL), 2 November 1973 and the 1978 Protocol of Amendment, 17 February 1978, 1226 UNTS 237. 103  Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 29 December 1972, 1046 UNTS 120. See: G.J. Timagenis, International Control of Marine Pollution (Oceana Publications, Dobbs Ferry, N.Y.: 1980), at 61 and 276–279. 104  Oxman, note 35 at 820. 105  Less flexibility was provided in the original wording in the 1972 Dumping Convention, note 103 Article XII (4). See Timagenis, note 103 at 276–279. 106  Oxman, note 35 at 820. 107  Ibid., at 821.

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vessels are exempt from the “provisions of this Convention regarding the protection and preservation of the marine environment” indicates that the exemption applies to all parts of the Convention that deal with the protection and preservation of the marine environment in much the same way that Article 29 defines warships for the entire Convention.108 Oxman suggests that as warships (sovereign immune vessels) were not considered a significant source of marine pollution that the Article 236 exemption met with little opposition.109 Article 236 and the similar provisions in other vessel-related environmental treaties have been referred to as establishing “an effective licence to pollute” with the comment that many sovereign immune vessels contribute to international marine pollution.110 It has been argued that as a result of modern environmental sensibilities that sovereign immune vessels should no longer be exempt from the applicable international obligations and that flag states should “bear a mandatory . . . obligation to prescribe and enforce international standards” vis-a-vis their sovereign immune vessels.111 There is, however, no intention to remove or limit the sovereign immunity of the vessel,112 rather what is advocated is that flag states should be internationally responsible and liable for breaches of vessel-source pollution treaties to which they are a party. Several authors have indicated that Article 236 is part of customary international law,113 as has the United States.114 During the negotiation of the Convention on Biological Diversity,115 the United States sought to have adopted a provision that the Convention would not apply to sovereign immune vessels. However, “[i]n view of . . . the recognition by many delegations during the negotiations that the United States proposal was a principle of customary international law and therefore superfluous, the United States withdrew

108  Ibid., at 821–822, footnote 34. 109  Ibid., at 821. 110  A.K.-J. Tan, Vessel-Source Marine Pollution: The Law and Politics of International Regulation (Cambridge University Press, Cambridge: 2006), at 46. 111  Ibid., at 47. 112  Ibid. 113  See: Rothwell and Stephens, note 61 at 161 and Churchill and Lowe, note 87 at 351. 114  J.A. Roach, “Today’s Customary International Law of the Sea” (2014), 45 Ocean Development and International Law 239, at 251, referencing U.S. President Letter of Submittal respecting the Convention on Biological Diversity, Senate Treaty Document 103–20, excerpted in Digest of U.S. Practice in International Law, 1991–1999, at pp. 1765–1766, at 115  Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79.

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its proposal.”116 The U.S. statement appears to indicate that what this entails is that sovereign immune vessels are exempt from the application of conventions dealing with, however tangentially, the protection and preservation of the marine environment unless the convention explicitly applies to sovereign immune vessels. Nevertheless, the content of Article 236 has been included in several recent shipping conventions117 categorized by Roach and Smith as environmental protection treaties.118 As detailed by Roach and Smith, there are a large number of ocean-related international treaties that, that in one form or another, exempt from their application sovereign immune vessels and very few that expressly apply to sovereign immune vessels.119 The 1974 Safety of Life at Sea Convention is referenced as being a treaty that expressly applies to sovereign immune vessels120 and does so in Article II,121 yet some care is necessary as the various SOLAS Convention chapters indicate their non-application to sovereign immune vessels,122 as does the proposed new chapter to the SOLAS respecting the Polar Code.123 A treaty of note for which no exemption for sovereign immune vessels exists is the 1972 Convention on the International Regulations for Preventing Collisions at Sea.124

116  U.S. President Letter of Submittal, note 114 at 1765–1766. 117  See: International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 5 October 2001, IMO Doc. AFS/CONF/26, 18 October 2001, Article 3(2) and International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 13 February 2004, IMO Doc. BWM/CONF/36, 16 February 2004, Article 3(2). 118  Roach and Smith, note 12 at 537–539. 119  Ibid., at 535–540. 120  Ibid., at 536. 121  International Convention for the Safety of Life (SOLAS), 1 November 1974, 1184 UNTS 2, Article II. 122  See, for example, SOLAS Convention, ibid., Chapter V, “Safety of Navigation,” Regulation 1(a)(i). 123  Proposed Chapter XIV addition to the SOLAS Convention, ibid., “Safety Measures for Ships Operating in Polar Waters,” Regulation 2, para. 4, “Report of the Maritime Safety Committee on Its Ninety-Third Session,” IMO Doc. MSC 93/22/Add.3, 9 June 2014, Annex 24. 124  Convention on the International Regulations for Preventing Collisions at Sea, 20 October 1972, 1050 UNTS 18.

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Conclusions UNCLOS:

• explicitly recognizes the existence of sovereign immune vessels; • indicates that certain activities must be undertaken by warships or related vessels; • sets out in certain situations what actions coastal states can take respecting non-complying sovereign immune vessels; • restates the international legal responsibility of the flag states of sovereign immune vessels for non-compliance with the Convention and, in certain situations, coastal state laws; and indicates that sovereign immune vessels are exempt from the provisions of the Convention dealing with marine environmental pollution.

•

Key issues such as the extent of immunity that exists for a state immune vessel and the application of the international law of state responsibility are not dealt with in UNCLOS being left to customary international law. The matters covered in this contribution have not been ones that have raised public disputes between states though operationally states deal with them on a continual basis. There have been few developments in state practice respecting the provisions on state immune vessels in UNCLOS. Moreover, while the international law of state immunity has undergone some changes in recent years and the entry into force of the Jurisdictional Immunities Convention may result in further changes, the fundamentals of the sanctity of warships and other sovereign immune vessels has not been overtly challenged.

Part 2 Port States

⸪

CHAPTER 5

Port State Jurisdiction, International Conventions, and Extraterritoriality: An Expansive Interpretation Bevan Marten Introduction The position of port states under international law in relation to visiting foreign merchant vessels is a subject of debate.1 This is a debate with a hard edge: the ability or otherwise of a port state to regulate issues such as the safety equipment, employment conditions, or environmental standards of such vessels can have serious financial consequences for their operators. For the most part, this edge has been softened through the development of a body of international regulatory conventions under the auspices of the International Maritime Organization (IMO). As a result, the most challenging legal issues in relation to port state jurisdiction arise when port states decide to introduce shipping regulations that have no international equivalent, or are more stringent than existing international standards. The significance of unilateralism in this context is reflected throughout the discussion that follows. The primary aim of this chapter is to address the more controversial questions surrounding the direction in which port state jurisdiction may yet develop, and put forward my comparatively expansive interpretation of how they may be answered under international law. In order to lay the foundations for this discussion I first set out the key characteristics of port state jurisdiction in practice, in order to provide a convenient means of characterizing domestic legislation relying on this concept, followed by the core legal characteristics of port state jurisdiction, and the limitations placed on it under international law. As these preliminary sections will demonstrate, my interpretation of the position features fewer constraints than some other scholars would place on the exercise of port state jurisdiction, and this is reflected in the discussion of * Lecturer, School of Law, Victoria University of Wellington. 1  This chapter assumes that the vessels under consideration are those foreign to the port state, as no relevant issues of international law arise when a vessel visits its home jurisdiction. It does not discuss issues surrounding sovereign immunity of state-owned non-merchant vessels under UNCLOS.

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the interaction between this concept and the various international conventions that play such a major role in the contemporary maritime transport sector. The next section of the chapter addresses the extent to which port states’ attempts to influence aspects of foreign shipping may amount to extraterritorial regulation, where my interpretation again suggests an expansive approach is justifiable. Finally I raise the possibility of limiting port state jurisdiction by relying on a “substantial connection” approach under international law. In the course of these discussions I hope to reinforce the idea that port state jurisdiction is a concept growing in scope and importance.2

Port State Jurisdiction in Practice

Before discussing the legal principles underpinning port state jurisdiction, and the issues that arise from the more ambitious attempts to employ it as a means of regulating foreign vessels, it is helpful to ground this discussion in some brief examples of what port state jurisdiction is used for in practice. These examples can be divided into two primary categories, with reference to the way in which the regulations are framed so as to target either “static” or “non static” aspects of a shipping operation.3 In addition to capturing the manner in which the vast bulk of regulations based on port state jurisdiction are drafted, this categorization has an important impact when it comes to assessing the legitimacy of such regulations under international law. The way in which these examples interact with international agreements and port state control arrangements is also discussed below.4 The first major group of examples relates to “static” aspects of a vessel, such as the way in which it is constructed or the equipment it carries on board. These can be conveniently summarized as “vessel conditions”. For example, a regulation of this kind might require a certain quality or quantity of life rafts to be present on all seagoing vessels in port. This category is similar to, but 2  For further discussion see generally B. Marten Port State Jurisdiction and the Regulation of International Merchant Shipping (Springer, Heidelberg: 2014). 3  These concepts are drawn primarily from work undertaken by Ringbom: see H. Ringbom The EU Maritime Safety Policy and International Law (Martinus Nijhoff Publishers, Leiden: 2008) 337–338, 355–356; H. Ringbom “Global Problem—Regional Solution? International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships” (2011) International Journal of Marine and Coastal Law 613, 621–623; for arguments supporting an additional, though less significant category see also Marten, note 2 at 58–62. 4  See section below: Port State Jurisdiction and International Conventions.

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distinct from, so-called “CDEM” (construction, design, equipment and manning) standards,5 as although most regulations addressing these matters relate to static conditions, not all will, for example a rule on how equipment must be operated while in port. Similarly not all static conditions, such as a requirement to use a particular kind of anti-fouling paint, will relate to “design” or “equipment”.6 Two notable instances of states using this approach are the double-hull requirement for oil tankers introduced by the United States in the 1990s,7 and the regional Stockholm Agreement on the stability requirements of ro-ro vessels operating in Northern Europe.8 Less high profile examples are likely to exist in many states. For instance, New Zealand has requirements (not based on SOLAS) relating to the maintenance of ships’ cranes and other lifting equipment that apply to visiting foreign vessels.9 The second category relates to “non-static” regulations, relating to the way in which the vessel or its equipment is operated and any events that occur in connection with them (such as an oil spill). These can be labelled “vessel operations”. These rules may be found in conjunction with static rules: building on the life raft example above, a rule of this kind might require a drill involving the life rafts to take place before a vessel departs. A notable example of this kind of rule is the requirement that vessels use low-sulphur fuel when visiting EU ports, or else switch to shore-side electricity.10 In this instance the focus is on changing the manner in which ships are operated (and thus lowering the amount of pollutants they discharge in ports), as opposed to dictating the kind of fuel that must be carried on the vessel and used at sea (which is regulated but to a less stringent standard). Similarly with the New Zealand crane example there is a requirement that the cranes be operated “in a safe and proper manner”.11 5  See for example UNCLOS, Art. 21. 6  Ringbom (2008), note 3 at 329. 7  Oil Pollution Act 1990 (US), s. 4115; 46 USC 3703a; see E. Molenaar “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage” (2007) 38 Ocean Development and International Law 225, 232–233. 8   Agreement Concerning Specific Stability Requirements for Ro-Ro Passenger Ships Undertaking Regular International Voyages Between or To or From Designated Ports in North West Europe and the Baltic Sea (28 February 1996) 2010 UNTS 175; this has since become EU-wide: Directive 2003/25/EC of 14 April 2003 on specific stability requirements for ro-ro passenger ships. 9  Maritime Rules Part 49: Ships’ Lifting Appliances (1 April 2011) (NZ), rr. 49.3(1)(c) and (d) and 49.4(1) and (2). 10  Directive 2005/33/EC of 6 July 2005 amending Directive 1999/32/EC, Art. 4b. 11  Maritime Rules Part 49: Ships’ Lifting Appliances (1 April 2011) (NZ), r. 49.4(3).

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By applying rules on vessel conditions and operations to foreign-flagged vessels entering its ports, a state can exercise some influence over the global shipping industry.12 Of course, this has far more impact where the port state is a major trading nation with significant numbers of ship visits and the practical ability to enforce high shipping standards. As a result the port states in the best position to introduce rules of this kind tend to be the United States and the EU.13 However, smaller port states with more modest aspirations can still have an impact, at least in respect of their own ports, as with the New Zealand example above. Regardless of the size and relative power of the state concerned, a careful balancing of interests will inevitably be part of any move to introduce unilateral regulations based on port state jurisdiction. In addition to any complications associated with introducing legislation that represents an excessive claim to jurisdiction under international law, there are economic and political risks associated with introducing requirements that fall outside of the international norm such as upsetting a state’s trading partners and important international business interests.14 At the other extreme is the risk of “ports of convenience” developing where low or unenforced standards enable cheaper trading, but at greater risk to safety and the environment.15 As the discussion below will demonstrate, as long as the rules introduced by port states are limited to those affecting a vessel’s condition or operations while in port, the port state is likely to remain in a relatively strong position under international law. The more difficult issues arise where the regulation has the effect of extending the port state’s reach beyond its own territory, suggesting that the port state is in fact more interested in controlling what takes place on the high seas and in other states’ maritime zones.16

12  The state may of course have to decide whether to enact legislation in its capacity as a coastal state instead, and if the relevant provisions of UNCLOS permit this it may be a better option in some cases: see Marten, note 2 at 56–58. 13  Ringbom (2008), note 3 at 381. 14  D.A. Fitch “Unilateral Action Versus Universal Evolution of Safety and Environmental Protection Standards in Maritime Shipping of Hazardous Cargoes” (1979) 20 Harvard International Law Journal 127, 144–145, 167–168, 170; A.K.-J. Tan “The Regulation of VesselSource Marine Pollution: Reconciling the Maritime and Coastal State Interests” (1997) 1 Singapore Journal of International and Comparative Law 355, 374–376. 15  E. Molenaar “Port State Jurisdiction” in R. Wolfrum (ed) The Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford: 2010) para. 4. 16  See below section: Port State Jurisdiction and Extraterritoriality.

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The Legal Basis for Port State Jurisdiction

The authority a state has over the foreign-flagged vessels that voluntarily17 visit its ports is central to the daily operation of international shipping, and in practice ties into the narrative of responsible states wanting the world’s international seagoing tonnage to maintain high standards. This is evidenced by regional port state control arrangements,18 which focus on the enforcement of internationally-agreed standards.19 Port state jurisdiction is a much broader legal concept, primarily concerned with a state’s prescriptive jurisdiction over foreign vessels visiting its ports.20 Enforcement jurisdiction is also relevant, but to a lesser extent as, provided the exercise of prescriptive jurisdiction is valid under international law, the vessel is already located within the state’s territory for enforcement purposes.21 Port States and UNCLOS In most maritime situations, the answer to queries concerning the extent of a state’s prescriptive jurisdiction will be found in UNCLOS. However, compared with flag or coastal state jurisdiction, this agreement has very little to say on the subject of port state jurisdiction. This should not deceive anyone into thinking that the concept is not important relative to its “siblings”. Despite not expressly providing for the ability of port states to regulate visiting foreign vessels, this concept is grounded in long-established principles of international law recognised by UNCLOS. The most important of these is the territorial basis of jurisdiction.22 While authorities disagree over its extent, it is universally accepted that a state has jurisdiction over a foreign-flagged vessel that enter its ports, on the basis that the vessel has submitted to its territorial jurisdiction.23 UNCLOS 17  For the position of vessels that enter port in circumstances of distress see Chircop in chapter 6 of this volume. 18  See below subsection: Port State Jurisdiction and Port State Control. 19  For a list of instruments covered see Paris Memorandum of Understanding on Port State Control (26 January 1982) 21 ILM 1, s. 2.1. 20  Molenaar, note 15 para. 1. 21  J. Crawford Brownlie’s Principles of Public International Law 8th edition (Oxford University Press, Oxford: 2012) 478. 22  Crawford, note 21 at 458–459. 23  Institut de Droit International “Règlement sur le Régime Légal des Navires et de leurs Équipages dans les Ports Étrangers (Session de la Haye, 1898)” in Institut de Droit Inter­ national: Tableau Général des Résolutions (1873–1956) (Editions Juridiques et Sociologiques, Basel: 1957) Arts. 2, 5, 13; Harvard Law School Research in International Law “The Law of

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simply reinforces this position by confirming that states have sovereignty over their internal waters and territorial sea,24 and that a vessel voluntarily anchoring in a state’s port or roadstead is no longer protected by the provisions on innocent passage (regardless of whether that port or roadstead is located in the state’s internal waters or territorial sea).25 Beyond this the Convention has very little to say on the matter of a port state’s jurisdiction over visiting foreign vessels. It does refer to port entry conditions,26 which are discussed in detail below,27 but not in a manner that limits the use of such conditions to particular subject areas, or to standards established by generally accepted international conventions. This may be contrasted with the doctrine of innocent passage, which has long represented a major limitation on a state’s territorial sovereignty,28 and its ability to regulate foreign vessels in particular. UNCLOS Article 21(1) in particular provides an exhaustive list of the subjects where the regulation of vessels engaged in innocent passage is permitted: 1.

The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following: (a) the safety of navigation and the regulation of maritime traffic; (b) the protection of navigational aids and facilities and other facilities or installations; (c) the protection of cables and pipelines; (d) the conservation of the living resources of the sea;

Territorial Waters” (1929) 23 American Journal of International Law Special Supplement 241, Art. 18; Ph.C. Jessup The Law of Territorial Waters and Maritime Jurisdiction (G.A. Jennings Co, New York: 1927) 144–145, 191; M.S. McDougal and W.T. Burke The Public Order of the Oceans: A Contemporary International Law of the Sea (Yale University Press, New Haven: 1962) 94–97, 156–157; R.R. Churchill and A.V. Lowe The Law of the Sea 3rd edition (Manchester University Press, Manchester: 1999) 65; Crawford, note 21 at 464. 24  UNCLOS, Art. 2. Sovereignty also extends to archipelagic waters. 25  See UNCLOS, Art. 18 (meaning of passage). It would be misleading to label the concept “internal waters jurisdiction”, as some ports and roadsteads are located within the territorial sea. 26  UNCLOS, Arts. 25(2) and 211(3). 27  See below subsection: Port Entry Conditions. 28  J.H. Beale “The Jurisdiction of a Sovereign State” (1923) 36 Harvard Law Review 241, 259–260.

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(e) the prevention of infringement of the fisheries laws and regulations of the coastal State; (f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; (g) marine scientific research and hydrographic surveys; (h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State. Article 21(2) then goes on to provide that “Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.” As can be readily imagined, questions of how vessels must be designed, constructed, manned and equipped are among the most important to maritime regulators, and can be among the most expensive for operators to implement when entire fleets must be re-fitted. Therefore the framers of UNCLOS made it clear that rules of this kind had to be established under instruments such as MARPOL and SOLAS, which have since been ratified by nearly all maritime states.29 As a result vessels may trade throughout the world in the knowledge that they can pass through various states’ territorial seas and not be required to comply with a “patchwork” of rules.30 UNCLOS contains no equivalent of Article 21 for port states. This lack of detail in relation to port state jurisdiction, as compared with the relatively comprehensive provisions on coastal state jurisdiction, was not an oversight. It reflects the notion that a state should be free to deal with its internal waters as it chooses,31 in the same manner as its land territory.32 The political background to such a position is not difficult to surmise. While the idea of limited jurisdiction over vessels engaged in innocent passage is of a considerable vintage, there has never been a clearly established body of equivalent rules relating to vessels in port. Agreement on any such limitations would have been very difficult to reach, and unlike unhampered passage through the territorial sea, which may be essential to maintaining viable international trade routes, vessel 29  See IMO “Status of Conventions” available at . 30  See Fitch, note 14 at 144; J.P.A. Bernhardt “A Schematic Analysis of Vessel-Source Pollution: Prescriptive and Enforcement Regimes in the Law of the Sea Conference” (1980) 20 Virginia Journal of International Law 265, 268. 31  Subject to the limited exception in UNCLOS Art. 8(2), which relates to internal waters historically considered part of a state’s territorial sea. 32  Churchill and Lowe, note 23 at 60–61.

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operators can choose not to visit a port if the state concerned introduces overly onerous regulations. As a result of UNCLOS’s relative silence on port state jurisdiction, any limitations as to the subject matter or extent of regulations specific to this concept must be found beyond the Convention. This is reinforced by its preamble, which states that matters not regulated by the Convention continue to be governed by the rules and principles of general international law.

Port State Jurisdiction as Distinguished from Coastal State Jurisdiction As a matter of geography, a state exercising port state jurisdiction will also be a coastal state. Nonetheless, the discussion above supports the conclusion that port state jurisdiction is best discussed as a separate jurisdictional concept, and not as a sub-category of coastal state jurisdiction more generally. First, port state jurisdiction is concerned only with vessels located within a state’s territorial jurisdiction, whereas coastal state jurisdiction extends to maritime zones where this does not apply, notably the EEZ.33 Second, coastal state jurisdiction is characterized by detailed rules within UNCLOS, whereas port state jurisdiction is characterized by an absence of such detail. Third, port state jurisdiction relies on a vessel’s voluntary submission to the state’s territorial jurisdiction, whereas coastal state jurisdiction is closely associated with concepts that prioritize unrestricted movement such as innocent passage and freedom of navigation.34 The combined effect of these factors is that the scope and extent of regulations a port state is able to prescribe and enforce in respect of visiting foreign vessels is distinct from what the same state is able to prescribe and enforce in respect of foreign vessels passing through its territorial sea, EEZ and other maritime zones. In addition to this, port state jurisdiction features an inherently practical element connected with its maritime context. This is simply that it is safer and more convenient for shore-based agencies to control a vessel in port than at sea or in some isolated bay.35 This element is not central to the concept of port state jurisdiction as a matter of law. A vessel tied up to the Port William jetty on Stewart Island in the far south of the country is still subject to New Zealand’s port state jurisdiction, even though nothing is likely to come of it in practice. Furthermore, a vessel in the territorial sea that is no longer engaged in innocent passage under UNCLOS 33  See UNCLOS, Part V. 34  See UNCLOS, Arts. 17 and 87. 35  See McDougal and Burke, note 23 at 89–91; Marten, note 2 at 23–24.

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Articles 18 (because its actions cease to qualify as “passage”) or 19 (because its actions cease to be “innocent”) could be regulated in the same manner as a vessel in port, but the reality is that this will very rarely happen. In particular, the matters that render passage “non innocent” for the purposes of Article 19, such as discharging weapons or deliberately causing pollution, are not the sorts of things merchant ships are likely to do in the ordinary course of business. Accordingly, I would argue that states introducing regulations covering all vessels in the territorial sea and internal waters, but excluding the rules’ application to vessels engaged in innocent passage, are in effect enacting rules based on port state jurisdiction. This is illustrated by the EU’s 2009 Directive on shipowners’ liability insurance, which provided that:36 Each Member State shall require shipowners of ships flying a flag other than its own to have insurance in place when such ships enter a port under the Member State’s jurisdiction. This shall not prevent Member States, if in conformity with international law, from requiring compliance with that obligation when such ships are operating in their territorial waters. Despite the option for wider application on offer, I am not aware of any Member States that did not implement this as a matter of port state jurisdiction only.37 This practical element of port state jurisdiction helps to explain why the concept is useful to individual states on a day-to-day basis, as well as its growing importance as part of the international community’s regulatory toolbox. I would go further and argue that this element is a fourth factor justifying the treatment of port state jurisdiction as a legal concept separate from that of coastal state jurisdiction more generally.

Limits on Port State Jurisdiction

As noted above, it is uncontroversial to say that a state has jurisdiction over a foreign vessel visiting its port.38 Just as a holidaymaker stepping off an airplane in a foreign country accepts that they will be subject to that state’s laws during their stay, so too a vessel, imbued with its flag state’s nationality,39 is a guest 36  Directive 2009/EC/20 of 23 April 2009 on the insurance of shipowners for maritime claims. 37  Marten, note 2 at 131. 38  See above note 23. 39  Crawford, note 21 at 530–533.

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that must accept its host’s manner of governing. The controversy surrounds the extent to which this jurisdiction is limited by international law. In addition to the general limits applicable to all exercises of prescriptive jurisdiction at international law, two older concepts that would limit port state jurisdiction are discussed below, but rejected. General Limits The general limits international law places on a state’s prescriptive jurisdiction apply equally to measures taken in a port state capacity. These include the obligation to act in good faith, the doctrine of abuse of rights, and the requirement not to discriminate (particularly, in this context, on the grounds of flag).40 Each of these concepts is provided for in UNCLOS.41 States must also consider the principle of proportionality, ensuring that the measures they dictate in relation to visiting vessels are commensurate with the outcome they seek.42 This principle is reflected in specific provisions of UNCLOS,43 but does not feature as a general principle in that instrument. The first two limits mentioned here are important, but not specific enough on the whole to have significant impact in the port state context. The good faith doctrine remains vague, while the abuse of rights doctrine addresses more extreme behaviour than is generally encountered in this field of regulatory endeavour. The prohibition on discrimination against the vessels of particular nations represents an important step in international law, and is touched on in the trade law context below.44 However, rules prohibiting discrimination will have no impact on a state that intends to introduce regulations in respect of all vessels entering its ports. As a result it is the principle of proportionality that, of the four, has the broadest potential application to discussions on the legal boundaries of port state jurisdiction. A Vessel’s Right of Entry? In previous decades it has been argued that a merchant vessel has a right to enter the port of another state as a matter of international law,45 which would 40  Ringbom (2008), note 3 at 223–229; Crawford, note 21 at 486. 41  UNCLOS, Arts. 24(1)(b); 25(3); 26(2); 42(2); 52(2); 119(3); 227; 234; 300. 42  E. Crawford “Proportionality” in R. Wolfrum (ed) The Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford: 2011). 43  UNCLOS, Arts. 60(4); 66(2); 221(1); 232. 44  See below subsection: The Impact of World Trade Law. 45  An exception is the American Law Institute’s Restatement of the Law Third: The Foreign Relations Law of the United States volume 2 (American Law Institute Publishers, St Paul:

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serve as a limit on the prescriptive and enforcement jurisdiction of port states. However, this notion has been comprehensively rejected by authors since at least the 1960s.46 Given the absence of any substantive defence of the concept in recent academic writing, drawing on significant state practice, it seems safe to conclude that this is no longer a sustainable position and does not reflect customary international law. This is not to overlook the fact that, by and large, merchant vessels travel around the world without being denied access to ports.47 This can be attributed to a state’s interest in promoting trade, as opposed to representing a stance taken in obedience to customary international law. Where international law may play a role is in relation to the many bilateral treaties of “friendship, commerce and navigation” states have entered into, incorporating a right of port entry for each other’s vessels.48 The Maritime Ports Convention of 1923, which has less bearing on port state jurisdiction than its title suggests, similarly extends a mutual right of port access to states parties.49 Accordingly, in some situations a port state may need to exercise care in framing its regulations to comply with its treaty obligations regarding port access, but this is most likely to impact on rules that could be criticized as discriminatory against affected flag states, not on rules applied to individual vessels. Specific foreign vessels may still be banned from port because of a terrible safety record without denying access to all ships of the same flag.50 A Vessel’s Internal Affairs? A separate subject of debate is whether a vessel’s “internal affairs” (or sometimes “internal economy”) are susceptible to the jurisdiction of a port state under international law. This refers to the idea that the flag state retains exclusive jurisdiction over a loosely-defined group of subjects such as employment conditions, inter-crew disputes, and minor offences committed on board a 1987) 36 and 38–40; but see W.T. Burke “Customary Law of the Sea: Advocacy or Disinterested Scholarship?” (1989) 14 Yale Journal of International Law 508, 520–522. 46  See in particular A.V. Lowe “The Right of Entry into Maritime Ports in International Law” (1977) 14 San Diego Law Review 597. 47  The position can be less welcoming where fishing vessels are concerned: Molenaar, note 7 at 234–235. 48  H. Walker “Modern Treaties of Friendship, Commerce and Navigation” (1958) 42 Minnesota Law Review 805. 49  Convention and Statute on the International Regime of Maritime Ports (9 December 1923) 58 LNTS 285; see Marten, note 2 at 33–34. 50  See for example Paris Memorandum of Understanding on Port State Control, note 19 at s. 4 on the banning of individual vessels from ports in the Paris MOU region.

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visiting vessel.51 If this concept is accepted as a rule of international law, then while the murder of one crew member by another would be sufficiently serious for the port state’s authorities to step in, a mere fist fight would not be—the constables would have to stay on the dock unless the master requested their assistance. I support the arguments that this restriction is not a matter of law, but instead represents a policy decision based on international comity and related political considerations.52 The port state is essentially refraining from becoming involved in such matters because it knows that the flag state has concurrent jurisdiction over the vessel, and is content to let flag state authorities adjudicate issues that have little practical impact on the port state. However, even if the internal affairs approach did represent a rule of international law, it has been confined to matters of internal discipline and minor crimes of a kind that would have almost no impact on the kind of safety and environmental measures that make up the bulk of contemporary shipping regulations.53 The “internal affairs” concept has never been very clearly defined, but it seems to hark back to a time where vessels were by necessity more selfcontained, and more likely to have a strong connection to a particular state.54 The discussion in this area does not appear to have been reinvigorated by recent academic contributions supporting the notion of “internal affairs” as a rule of international law,55 but this is not to suggest that the broader idea represented by the internal affairs notion is not worth exploring further, namely whether there are some things that international law should prohibit port states from regulating by placing them in the exclusive domain of the flag state. Although this concept is no longer the best vehicle for this idea, there will undoubtedly be situations where flag state authorities will be better placed to address a problem arising on board than the authorities of the state whose port the vessel happens to be visiting. However, it now appears dated to suggest that a flag 51  This idea crystallised in a French decision of 1806 and the debate in this area has usually been framed as a clash between French and Anglo-American jurisprudence: see A.H. Charteris “The Legal Position of Merchantmen in Foreign Ports and National Waters” (1920–1921) 1 British Yearbook of International Law 45. 52  Ibid., 46; Jessup, note 23 at 191–194. 53  Churchill and Lowe, note 23 at 66; V.D. Degan “Internal Waters” (1986) 17 Netherlands Yearbook of International Law 3, 24; McDougal and Burke, note 23 at 164–165. 54  See Marten, note 2 at 42–43. 55  The concept still has supporters, see for example: Ph. Boisson Safety at Sea: Policies, Regulations and International Law (Edition Bureau Veritas, Paris: 1999) 170. It has also emerged as a matter of domestic law, for consideration when interpreting legislation that may impact on foreign flagged vessels, in the United States: see for example Spector v Norwegian Cruise Line 545 US 119 (2005).

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state, which of course may be no more than a flag of convenience with no real link to the owners or crew, will invariably have a better claim to jurisdiction over a minor criminal or contractual dispute than a port state.

Port State Jurisdiction and International Conventions

Although a port state’s jurisdiction over visiting foreign vessels is largely unfettered by customary international law, this conclusion downplays the important role of international agreements in setting the boundaries of port state jurisdiction. International conventions, notably those developed through the IMO and ILO, have been used to set agreed regulatory standards for the maritime sector since the mid 20th century, and some of the most important such as SOLAS and MARPOL have reached very high rates of ratification. A port state that ratifies such a convention and enforces it in respect of visiting foreign vessels as part of regional port state control arrangements is still exercising port state jurisdiction, as discussed below, but in a completely orthodox way that has been embraced by the international community. By comparison a state that introduces a rule that is more stringent than an existing international convention may have to justify itself in political terms but, as this section goes on to argue, will still be acting in compliance with international law as a port state in most cases. In other words, international conventions play an important role in shaping port state jurisdiction, but did not create it, and rarely limit it. Port State Jurisdiction and Port State Control Port state control refers to the enforcement of internationally-agreed shipping standards.56 Having entered into international conventions setting out detailed regulations that seagoing vessels must meet, such as MARPOL and SOLAS, regional groupings of port states inspect visiting vessels against these widely-accepted standards and share information on the results. The fact that not all visiting vessels are operating under the flags of states parties to these conventions does not deter the port states, as they have adopted the principle of “no more favourable treatment”. In other words, they will enforce the international maritime treaties to which they are party (as set out in the various port state memoranda of understanding) regardless of whether or not the

56  See E. Molenaar Coastal State Jurisdiction and Vessel-Source Pollution (Kluwer Law International, The Hague: 1998) 125–131; Z.O. Özçayir Port State Control 2nd edition (LLP, London: 2004).

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visiting vessel’s flag state is also a party. To acknowledge this, more recent conventions are likely to contain a clause along the following lines:57 With respect to the ships of non-Parties to the Convention, Parties shall apply the requirements of the present Convention as may be necessary to ensure that no more favourable treatment is given to such ships. As the wording suggests, one aim of such clauses is to ensure that some flag states’ vessels are not placed in a better position by their not having signed up to an international agreement, thus keeping those vessels’ compliance costs lower than their competitors. However, by implication this confirms an important aspect of the relationship between international conventions and port state jurisdiction: the latter does not rely on the former for its existence. While the general rule regarding international conventions is of course that they bind only the parties to them,58 the no more favourable treatment clause points to an important intersection of international and domestic law in the maritime context, namely that port state jurisdiction can be used to apply laws sourced from international conventions to visiting foreign vessels as a matter of domestic law if need be.59 In this context it is also noteworthy that the memoranda of understanding on which port state control organizations are based contain a provision to the effect that:60 Nothing in the Memorandum will be construed as restricting the powers of the Authorities to take measures within its jurisdiction in respect of any matter to which the relevant instruments relate. Thus a port state is not saying “although your flag state has not ratified MARPOL, we are making you apply MARPOL’s rules now that you are in our territory”, it is saying “although your flag state has not ratified MARPOL, you are subject to 57  MARPOL, Art. 5(4); see similarly International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel (7 July 1995) Art. 8(4); Torremolinos Protocol 1993 to the International Convention for the Safety of Fishing Vessels, Art. 4(7); International Convention on the Control of Harmful Anti-fouling Systems on Ships (5 October 2001) Art. 3(3); Maritime Labour Convention, Art. V(7); International Convention for the Control and Management of Ships’ Ballast Water and Sediments (13 February 2004) Art. 3(3). 58  Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331, Arts. 26 and 34. 59  Molenaar, note 56 at 119–121. 60  Paris Memorandum of Understanding on Port State Control, note 19 at s. 1.7; such clauses may also appear in conventions, see for example MARPOL, Art. 5(4).

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our domestic laws while visiting our territory, and these happen to be identical to MARPOL’s standards.”61 Going beyond a Convention When enforcing a rule sourced from an international convention by way of port state control the port state is operating from a strong position on legal, practical and political grounds. It is doing nothing that should surprise a foreign flag state and the shipowners operating under that flag. Even if the flag state has not ratified the relevant convention, the convention’s existence will be a matter of public record, and the port state will be following a procedure that is now in common use around the globe. However, in situations where a port state decides to introduce rules that are more stringent than those found in an international convention—particularly a convention to which it is a party—the position is slightly more complex. The motivation of the port state in this position could be, for example, to indicate its support for an environmental measure by signing the relevant convention, but to nonetheless expect higher standards of vessels visiting its own ports, perhaps with a view to dragging the international community’s standards up over time. This could either be on the basis that a vessel complying with the stringent requirement in that port state will realistically remain in compliance with it in other states it visits, or because that more stringent standard will in time serve as a model for further reforms at the international level.62 I argue that, unless the convention in question prohibits such a rule, a port state can legitimately enact rules of this kind from an international law perspective. This is reflected in some more recent maritime conventions, which contain provisions to the following effect:63

61  For a recent variation on this in relation to SOLAS see PB Sea Tow (PVI) Ltd v AttorneyGeneral (2 May 2014) Court of Appeal of Samoa, CA 24/13; B. Marten “The Flag State, the Port State, and SOLAS” (2014) 20 Journal of International Maritime Law 161. 62  Fitch, note 14 at 170; V. Frank “Consequences of the Prestige Sinking for European and International Law” (2005) 20 International Journal of Marine and Coastal Law 1, 24–25; A. Boyle “EU Unilateralism and the Law of the Sea” (2006) 21 International Journal of Marine and Coastal Law 15, 16–17. 63  International Convention on the Control of Harmful Anti-fouling Systems on Ships, note 58 at Art. 1(3). See similarly International Convention for the Control and Management of Ships’ Ballast Water and Sediments, note 58 at Art. 2(3); Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (15 May 2009), Art. 1(2).

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No provision of this Convention shall be interpreted as preventing a State from taking, individually or jointly, more stringent measures with respect to the reduction or elimination of adverse effects of anti-fouling systems on the environment, consistent with international law. Some might read such a provision as suggesting that conventions without an equivalent article represent strict maximum standards from which states parties cannot depart.64 However, I would argue that this is a statement clarifying the position that already existed in respect of the types of minimum standards normally found within IMO agreements, namely that states have residual jurisdiction notwithstanding having ratified these agreements. By contrast, an example of an express prohibition on the enactment of a more stringent requirement is regulation 15(1) of Annex VI of MARPOL, which provides that: If the emissions of [Volatile Organic Compounds] from a tanker are to be regulated in a port or ports or a terminal or terminals under the jurisdiction of a Party, they shall be regulated in accordance with the provisions of this regulation. A provision of this kind unambiguously demonstrates that a state party is agreeing to a limit on its prescriptive jurisdiction in this particular instance, setting a maximum agreed standard of regulation. However, to date such provisions are rare in the shipping context, and limited in scope: in this example the restriction would apply only to the emissions standards referred to, not to the state’s MARPOL obligations as a whole. Although such a move may be seen as contrary to the interests of international comity, in that a state is simultaneously supporting one international standard and promulgating its own more stringent domestic one, such a move is not hindered by international law. It is possible to envisage a situation where a convention did not expressly rule out a more stringent standard, but instead had a purpose that implicitly proscribed any such legislation. For example, taking a convention that had as a primary aim international uniformity, for example one attempting to establish a very specific kind of technology as the industry standard, a more stringent domestic requirement might

64  Boisson, note 55 at 170; U. Jenisch “The European Union as an Actor in the Law of the Sea: The Emergence of Regionalism in Maritime Safety, Transportation and Ports” (2005) 48 German Yearbook of International Law 223, 251 and 259.

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be inconsistent with a state party’s treaty obligations.65 Otherwise, provided the domestic rules do not conflict with any of the general limits on prescriptive jurisdiction outlined above, I concur with a number of other scholars who argue that no legal principle stands in a state’s way.66 Instances of states taking such steps are not common, the most well-known being the United States’ Oil Pollution Act of 1990.67 More recently the EU has provided two further examples. First, its introduction of an accelerated timetable on the phasing-out of single-hulled tankers,68 and second its provisions on the sulphur content of marine fuels for passenger ships.69 Both were more stringent than the MARPOL equivalents in effect at the time, but in both cases the international community has since moved to match the EU by amending MARPOL to increase the stringency of its standards. It also follows from this that there is nothing to prevent a port state from introducing a new standard relying on port state jurisdiction where no international rule exists at all, as in the more modest case of New Zealand’s rules on ships’ cranes.70 In other words, the existence of an international convention on the subject is not a necessary precondition. The Impact of WTO Law The potential role world trade law (as represented by the World Trade Organization and associated agreements) could play in limiting port state’s ability to regulate international shipping has been touched upon by several 65  Ringbom (2008), note 3 at 221–222. 66  E. Molenaar “Residual Jurisdiction under IMO Regulatory Conventions” in H. Ringbom (ed), Competing Norms in the Law of Marine Environmental Protection: Focus on Ship Safety and Pollution Prevention (Kluwer Law International, London: 1997); L.S. Johnson Coastal State Regulation of International Shipping (Oceana Publications Inc, Dobbs Ferry: 2004) 43–44; Ringbom (2008), note 3 at 222–223. 67  See above note 7. 68  Regulation No. 1726/2003 of 22 July 2003 amending Regulation (EC) No. 417/2002 on the accelerated phasing-in of double-hull or equivalent design requirements for single-hull oil tankers. 69  Directive 2005/33/EC of 6 July 2005 amending Directive 1999/32/EC as regards the sulphur content of marine fuels. 70  Maritime Rule Part 49—Ships’ Lifting Appliances (1 April 2011) (NZ). These rules go beyond SOLAS requirements on cranes, but the international community is now moving to consider whether SOLAS needs to be amended in this regard: “Lifting gear fatalities need response” Maritime Journal (7 October 2014) .

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authors,71 and while a thorough examination of this issue is beyond the scope of this chapter, the area has the potential to make a significant impact on port states’ ability to legislate. World trade law has a role to play in relation to port access, as the General Agreement on Tariffs and Trade (GATT) contains a provision on the free transit of goods that prohibits discrimination based on a vessel’s flag.72 This brings to mind the disputes involving the EU against Canada73 and Chile74 respectively. In each case EU fishing vessels were banned from the state’s ports in pursuance of conservation and trade policies and in each case the conditions were dropped before the case reached formal adjudication. Had Canada or Chile attempted to introduce restrictions that were flag-neutral, they would arguably have been able to avoid the criticisms leveled by the EU under the GATT.75 For example, the United States was able to introduce a ban on shrimp products that had been caught by vessels without devices that protected turtles from becoming by-catch. Although the GATT’s focus on goods means that it will not always be relevant to shipping regulations that apply to vessel conditions or operations, as opposed to the goods carried within vessels as cargo,76 the United States’ measures show how a port state can use trade measures to indirectly affect the manner in which vessels are equipped. On the other hand, the United States’ initial lack of success equally demonstrates the ability of the WTO process to force a would-be unilateral regulator to the international negotiating table.77 71  L. de La Fayette “Access to Ports in International Law” (1996) 11 International Journal of Marine and Coastal Law 1, 20–21; T.L. McDorman “Regional Port State Control Agreements: Some Issues of International Law” (2000) 5 Ocean and Coastal Law Journal 207, 219–222; E. Molenaar, A.G. Oude Elferink and D. Prevost Study on the Labour Market and Employment Conditions in Intra-Community Regular Maritime Transport Services Carried Out by Ships under Member States’ or Third Countries’ Flags: Aspects of International Law (Netherlands Institute for the Law of the Sea, Utrecht: 2008), 52–83; Ringbom (2011), note 3 at 632–637. 72  General Agreement on Tariffs and Trade (30 October 1947) 55 UNTS 194 (GATT), Art. V(2). 73  McDorman, note 71 at 220. 74  A. Serdy “See You in Port: Australia and New Zealand as Third Parties in the Dispute between Chile and the European Community over Chile’s Denial of Port Access to Spanish Vessels Fishing for Swordfish on the High Seas” (2002) 3 Melbourne Journal of International Law 79. 75  de La Fayette, note 71 at 20–21. 76  McDorman, note 71 at 220 and 222. 77  United States—Import Prohibition of Certain Shrimp and Shrimp Products (12 October 1998) AB-1998-4, WT/DS58/AB/R (WTO Appellate Body); United States—Import Prohibition of Certain Shrimp and Shrimp Products: Recourse to Article 21.5 of the DSU by Malaysia

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More complicated is the relationship between shipping regulation and the General Agreement on Trade in Services (GATS), as this includes provisions on the maritime transport sector. In general the GATS obliges a WTO member to extend, in relation to any measure covered by the agreement, most-favourednation status to all other WTO members (essentially, to not discriminate against them).78 This obligation is not yet fully applicable to maritime transport services, as negotiations addressing various states’ objections in this area remain unresolved,79 although this does not affect those states that have already made specific commitments in the relevant sectors.80 In addition to the most-favored-nation obligation, members may use their GATS schedules to extend national treatment, subject to conditions if desired, to foreign service suppliers.81 The risk to port states posed by the GATT and GATS is that almost any measure introducing standards that are more stringent than the international norm could become the subject of a complaint. Even if the measure does not discriminate against particular states, it is likely to increase operating costs for shipowners and thus affect their ability to trade in a particular markets for goods or services. However, while flag states might be able to use such arguments to hold back developments based on port state jurisdiction, the GATT and GATS do leave room for a range of unilateral regulations. For example, nondiscriminatory shipping regulations relevant to safety and the environment (21 October 2001) AB-2001-4, WT/DS58/AB/RW (WTO Appellate Body); the United States was not successful initially, as it first had to demonstrate a genuine effort to negotiate and international solution to the problem before unilateral measures were justified, see D. König “The Enforcement of the Intentional Law of the Sea by Coastal and Port States” (2002) 62 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 1, 10–14. 78  Marrakesh Agreement Establishing the World Trade Organization, including the General Agreement on Tariffs in Trade and General Agreement on Trade in Services (15 April 1994) 1869 UNTS 183 (GATS), Art. II; see World Trade Organization A Handbook on the GATS Agreement (Cambridge University Press, Cambridge: 2005) 8; S. Lester, B. Mercurio, A. Davies and K. Leitner World Trade Law: Text, Materials and Commentary (Hart Publishing, Portland: 2008) 603–604. 79  GATS, note 78 at Annex on Negotiations on Maritime Transport Services; see World Trade Organization “Maritime Transport Services: Background Noted by the Secretariat (7 June 2010, S/C/W/315), paras. 132–133. 80  See World Trade Organization “Maritime Transport Services: Background Noted by the Secretariat (7 June 2010, S/C/W/315), Part III; Ph. Raworth Trade in Services: Global Regulation and the Impact on Key Service Sectors (Oceana Publications, Dobbs Ferry: 2005) 424–425. 81  GATS, note 78 at Art. XVII; see World Trade Organization, note 78 at 8–9. For schedules of specific commitments see Lester, Mercurio, Davies and Leitner, note 78 at 615–616.

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may fall within the exceptions established for measures “necessary to protect human, animal or plant life or health” (GATT and GATS), the conservation of natural resources (GATT), or those necessary to comply with safety laws (GATS).82 In the context of the EU emissions trading scheme’s potential impact on international shipping, Ringbom has argued that a non-discriminatory regime is likely to be justified on the basis of these provisions. He further notes that the limitations on unilateral measures affecting international trade are more or less the same as those affecting port state jurisdiction under general international law,83 such as the need to observe the principle of proportionality and not to discriminate against particular flag states.84

Port State Jurisdiction and Extraterritoriality

The most complex legal debates in relation to port state jurisdiction concern the extent to which the concept can legitimately be used to regulate vessels’ operations85 en route to port. The practical temptation for port states promoting high quality shipping standards to extend their authority in this way is obvious: if you want vessels to operate in a safe/environmentally sound manner then why not try to ensure that this happens throughout a vessel’s voyage? However, in all but a small number of situations the legal basis for prescribing and enforcing such laws is far less clear. Extraterritorial jurisdiction over non-nationals is not easily justified under international law,86 and UNCLOS reflects this position in respect of a coastal state’s jurisdiction over foreign vessels. Looking to the key maritime zones provided for in the Convention, states have extensive jurisdiction in respect of vessels in their internal waters and territorial seas,87 but only limited jurisdiction

82  GATT, note 72 at Art. XX(b) and (g); GATS, note 79 at Art. XIV(b) and (c)(iii). The safety laws in question must be consistent with the GATS. See also Agreement on Technical Barriers to Trade 1868 UNTS 120, Art. 2.2. 83  Ringbom (2011), note 3 at 634–637. 84  See GATT, note 72 at Arts. I and XX; GATS, note 78 at Arts. II, VI and XVII. 85  Vessel conditions are also relevant but, for reasons discussed below, the legal issues in relation to regulations targeting them are less complex. 86  Crawford, note 21 at 456–457. 87  Subject to the important limitation of the doctrine of innocent passage: see above section The Legal Basis of Port State Jurisdiction.

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in their EEZs.88 Meanwhile, with very few exceptions,89 flag states enjoy exclusive jurisdiction over their vessels on the high seas.90 A state may rely on a basis of jurisdiction confirmed or extended by a provision of UNCLOS in relation to its territorial sea or EEZ to prescribe and enforce a regulation, then wait until the vessel arrives in port to enforce it. Rather than being an exercise of port state jurisdiction, this is properly characterized as an exercise of coastal state jurisdiction that is merely enforced in port.91 Accordingly, the most important examples of state practice in the context of this discussion are where a state does not limit its regulations to vessel operations within its maritime zones, but instead extends them (whether expressly or not) to the high seas—and even to other states’ maritime zones. In some very limited cases an extraterritorial regulation of this kind can be justified with reference to UNCLOS, some other international agreement, or a rule of customary international law. One widely-discussed example is UNCLOS art 218, which permits a port state to enforce internationally-agreed environmental standards against a foreign vessel, even though the pollution event took place on the high seas or in another state’s maritime zones.92 This provision has been described by a number of authors as an innovative development in international law,93 and one that would have been unnecessary if port states could legitimately regulate such matters occurring outside their maritime zones.94 Alternatively, in some rare circumstances, a state might be able to rely on the effects doctrine or the protective/security principle as a basis for extraterritorial jurisdiction,95 perhaps in relation to pollution events or security issues respectively.96 This can be described as the basic position on extraterritoriality as far as port states are concerned. In international law terms it is unimpeachable, but it leaves few jurisdictional bases open to states that want to exercise a significant amount of influence over foreign vessels during their voyage to the port state. Below I argue for a more expansive interpretation of what port states 88  UNCLOS, Art. 56. 89  Piracy for example: UNCLOS, Art. 105. 90  UNCLOS, Art. 92(1). 91  Molenaar, note 56 at 130. 92  The vessel will also enjoy the procedural safeguards in UNCLOS Part XII(7). 93  T.L. McDorman “Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea Convention” (1997) 28 Journal of Maritime Law and Commerce 305, 320. 94  Molenaar, note 56 at 130. 95  Crawford, note 21 at 462–464. 96  See Marten, note 2 at 93–96.

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may prescribe in this context, and provide a prediction of how the accompanying enforcement jurisdiction will develop. But first, a narrower interpretation of port state jurisdiction in general must be countered. Extraterritorial “Effects” Are Justifiable One particularly restrictive approach to the issue of extraterritoriality where port states are concerned is to argue that the only valid exercise of port state jurisdiction, if the regulation in question will have any impact on the vessel once it departs port, is where there is a valid basis of exterritorial jurisdiction as per the basic position outlined above. An example of this approach can be drawn using New Zealand’s regulations on ships’ cranes, noted above.97 If the crew of a foreign-flagged vessel breached the rule on the safe operation of cranes while loading cargo in Auckland, then on this interpretation nothing objectionable would have occurred. Everything relevant to the rules and their breach could be assessed in port, safely within the state’s territorial jurisdiction. On departure from port the rule would have no further impact on the vessel. Similarly if the rule on the safe maintenance of a crane was breached the vessel’s owners would be able to address this while in port,98 and again there would be no further impact on departure. The crew could even let the crane lapse into disrepair again without hearing from New Zealand’s port inspectors until its next visit. However, if the rule were amended so that all vessels visiting New Zealand had to have a certain type of crane fitted then, the argument would go, it would be an excessive claim to jurisdiction. New Zealand would in effect be compelling vessels to leave its maritime zones and enter the high seas with equipment that is not required by the flag state or any an international convention. On this view the requirement would represent an unjustified exercise of extraterritorial jurisdiction. This position is sustainable neither in law nor in practice.99 The port state is entitled to a small measure of artifice in the way the practical effects of its 97  See above section: PORT STATE JURISDICTION IN PRACTICE. 98  Events that occurred on board the Hong Kong-flagged geared bulk carrier Anacapa Light in Lyttelton during the writing of this chapter demonstrate that this is a real concern: “Crane collapses at Lyttelton Port” (19 September 2014), available at . 99  It is essentially the approach taken by the New Zealand Court of Appeal in the decision of Sellers v Maritime Safety Inspector [1999] 2 NZLR 44, which has been widely criticized: Molenaar (2007), note 7 at 231–232; Ringbom (2008), note 3 at 338–339; B. Marten “Port State Jurisdiction in New Zealand: The Problem with Sellers” (2013) 44 Victoria University of Wellington Law Review 559; compare J.S. Davidson “Freedom of Navigation on the High

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rules are interpreted. Challenged, the port authorities could legitimately reply “Certainly you must have this type of crane on board when you leave our port—but you can cast it overboard once you leave our territorial sea if you like and there is nothing we can do to stop you.” Of course the state in this situation wants the vessel to continue complying with the rule after it has left port, but it does not have to frame it this way as a matter of law. From a legal perspective the port state is entitled to prescribe that it requires the crane to be present whenever a vessel is in one of its ports. If the crane is not on board at that point in time then all relevant factors have occurred, and can be assessed, within that state’s territory. Provided the port state is not breaching its treaty obligations or contravening any general limitations on a state’s prescriptive jurisdiction100 then a state cannot be challenged on this kind of rule. It has brought the matter comfortably within the territorial basis of jurisdiction. This is supported in practice by the wide range of rules relating to vessel conditions such as safety equipment applied to visiting foreign vessels and enforced by port state control authorities on a daily basis throughout the world. This system of regional enforcement cooperation could not operate so successfully in practice if it were not considered lawful, as reflected in the “no more favourable treatment” concept,101 to enforce such standards against the vessels of non-parties to the various conventions. This reasoning applies equally to any unilateral standards on vessel conditions a port state may choose to implement. The practical intention behind such rules is that the vessels in question will continue in compliance long after they have departed port, but this does not change the legal position, namely that the regulation of vessel conditions does not involve the exercise of extraterritorial jurisdiction. What Happened on the Way to Port? Combining this conclusion with the basic position on extraterritorial jurisdiction outlined above allows port states to prescribe laws relating to vessel conditions and vessel operations that take place within port in reliance on the territorial basis of jurisdiction, and vessel operations on the basis of any applicable extraterritorial bases of jurisdiction. In practice the latter bases will have a very limited scope of application, and even then the extent of enforcement

Seas: Sellers v Maritime Safety Inspector” (1999) 14 International Journal of Marine and Coastal Law 435; D. Devine “Port State Jurisdiction: A Contribution from New Zealand“ (2000) 24 Marine Policy 215; Özçayir, note 56 at 90. 100  See above subsection: General Limits. 101  See above subsection: Port State Jurisdiction and Port State Control.

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jurisdiction that may be exercised in such cases is a matter for debate (and is dealt with in more detail below). This may not satisfy the ambitions of all port states: if they focus entirely on vessel conditions along with any matters within their coastal state jurisdiction under UNCLOS and a very small number of extraterritorial matters, then they will have little real say in how a vessel was operated en route to port. Was it upholding strict environmental standards? Good employment relations? Safe navigation practices? One response is that this is how the law of the sea is supposed to work, with vessels operating primarily under their flag state’s jurisdiction, and port and coastal states providing only a supporting role.102 On the other hand, there are avenues in which port states can arguably exercise more extensive influence over vessels travelling to their port. One option is to focus on an aspect of vessel operations that can be assessed within the port state’s territory. Another is to argue that complying with certain operational standards is a condition of accessing the port. Make It a Port Matter One option is to draft a law that addresses the issue the port state wants to regulate in a manner that is somewhat tangential to the problem, but enables it to rely on the territorial basis of jurisdiction.103 A good example of this is the United States’ approach to prosecuting oil pollution offences under MARPOL. Instead of trying to prosecute a foreign vessel for a discharge occurring outside of its maritime zones, the United States authorities base their prosecution on the vessel’s improperly-maintained oil record book. The presentation of a certified oil record book by the master, which the authorities can then show to be false on the basis of evidence available to them, becomes the offence.104 All relevant elements of this offence have occurred in port, and thus comfortably within United States’ territorial jurisdiction, avoiding any argument that the United States is concerning itself with actions that took place beyond its maritime zones. 102  See for example Secretariat of the IMO Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization (19 January 2012, LEG/ MISC.7), 12, 18. 103  Ringbom (2008), note 3 at 368–369. 104  See for example United States v Royal Caribbean Cruises Ltd 11 F Supp 2d 1358 (1998) (DC, South Florida); American Society of International Law “Contemporary Practice of the United States Relating to International Law: International Oceans, Environment, Health, and Aviation Law: US Criminal Sanctions for High Seas Pollution by Foreign Vessels Entering US Ports” (2009) 103 American Journal of International Law 755.

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A variation on this approach has been taken by the EU in the airline context. By requesting information on the fuel used by a plane on its arrival in an EU airport, the Member State can then make a calculation based on the plane’s emissions and impose a levy accordingly.105 The airline industry argued that this amounted to extraterritorial regulation, as the aim was to take account of the fuel consumption of aircraft operating beyond the EU’s borders. However, the ECJ convincingly held that this regulation dealt only with matters occurring within a Member State’s territory, namely collecting information and imposing levies.106 There was no suggestion that the EU was trying to compel aircraft to operate in a certain way over the high seas, even though the rule meant it was in airlines’ economic interests to create fewer emissions. Port Entry Conditions The debate concerning a port state’s ability to regulate the manner in which vessels are operated en route to port currently hinges around the concept of port entry conditions.107 This links a state’s port state jurisdiction with the absence of any general right of foreign ships to enter ports under international law.108 Port entry conditions are mentioned in UNCLOS, with article 25 (Rights of protection of the coastal State) relevantly providing that:109 1. 2.

The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent. In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admis­ sion of those ships to internal waters or such a call is subject. [. . .]

UNCLOS article 211(3) refers to conditions of entry specific to environmental regulations (emphasis added):

105  Directive 2008/101/EC of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas. 106  Air Transport Association of America v Secretary of State for Energy and Climate Change [2011] ECJ Case C-366/10. 107  For further discussion see Marten, note 2 at 97–111. 108  See above subsection: A Vessel’s Right of Entry? 109  Emphasis added. See also UNCLOS, Art. 38(2), which deals with international straits.

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States which establish particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports or internal waters or for a call at their off-shore terminals shall give due publicity to such requirements and shall communicate them to the competent international organization. . . . This article is without prejudice to the continued exercise by a vessel of its right of innocent passage or to the application of article 25, paragraph 2. These provisions attest to the fact that a state can sometimes permit vessels to enter its ports subject to certain conditions, but the issue for debate revolves around the extent of its prescriptive and enforcement jurisdiction in this context. Extent of Prescriptive Jurisdiction One view of port entry conditions is that they may relate to vessel operations only where the state can rely on a basis of extraterritorial jurisdiction, as per the basic position outlined above.110 From this perspective there is nothing in UNCLOS or other sources of international law that gives port states a broader prescriptive jurisdiction over the extraterritorial operations of foreign vessels, so no vessel can be subjected to a law that purports to regulate a vessel in this way just by drafting it as a port entry condition. Instead the port entry conditions concept serves to limit the state’s enforcement jurisdiction, as discussed below. I favor a more expansive interpretation, whereby a port state can prescribe conditions for entry that relate to extraterritorial vessel operations, even though there would be no regular basis of extraterritorial jurisdiction upon which to justify such a law.111 Instead, the law’s legitimacy stems from the port state’s ability to control access to its port and thus condition entry as it sees fit. The port state would argue that it is neither compelling vessels to operate in a particular way while on the high seas, nor threatening to send out its naval vessels to interrupt passage and enforce its laws. Instead it is merely legislating conditions for vessels that wish to enter its ports, the details of which are publicly available. If the vessels’ operators choose to enter port, and thus submit to the state’s territorial jurisdiction, then they will be deemed to have accepted the legitimacy of such conditions. After all, if a vessel can be denied entry to 110  B.D. Smith State Responsibility and the Marine Environment (Clarendon Press, Oxford: 1988) 171–172 and 217; Molenaar, note 7 at 228–229. 111  See discussion in Ringbom (2008), note 3 at 355–375; Ringbom (2011), note 3 at 626–627.

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port altogether, and a vessel cannot be compelled to enter port, then why could a port state not impose whatever conditions it chooses?112 The side one takes in this debate will depend on whether one sees this as a mere window-dressing for what are in truth unjustifiable attempts to regulate extraterritorial vessel operations, or whether it is properly characterized as a matter connected with a state’s ability to regulate port entry that can be tied to the territorial basis of jurisdiction. Those favoring the latter would see such rules as more akin to the EU’s aircraft emissions scheme described above, whereby vessels are not compelled to operate in a certain way en route, but the port state may legitimately take into account what took place during that voyage once they arrive. Extent of Enforcement Jurisdiction Regardless of the approach one favors in relation to a state’s prescriptive jurisdiction in this context,113 a separate issue arises concerning the extent of its enforcement jurisdiction. This is essentially whether, when introducing port entry conditions, a port state’s enforcement options are limited to the denial of entry to port or port services (such as bunkering services).114 The reasoning behind this approach has been analyzed by Molenaar, who compares the powers given to port states under UNCLOS Article 218 with those under Article 25 (and certain provisions of international fisheries law). In the case of Article 25 states are permitted to take action in the territorial sea to prevent a breach of their rules, whereas under Article 218 they are given the power to prosecute an extraterritorial pollution incident—subject to strict conditions.115 Accordingly, it can be argued that UNCLOS demonstrates that international law prohibits a state from taking any more punitive steps in relation to a port entry condition, such as imposing a fine or detaining a vessel. Otherwise Article 218 would have been framed in a less restrictive manner, or the international community would have otherwise signalled its support of broader enforcement powers.116 112  Support for this position, although expressed in different terms can be found in Johnson, note 66 at 41–43. 113  Noting of course that enforcement jurisdiction must be based on the legitimate exercise of prescriptive jurisdiction: F.A. Mann “The Doctrine of International Jurisdiction Revisited After Twenty Years” (1984) 186 Recueil des Cours 9, 35. 114  See Molenaar, note 7 at 229. 115  Namely that the rule in question must be based on international norms, and that the safeguards in UNCLOS Part XII(7) are complied with. 116  Molenaar, note 7 at 235–237.

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Molenaar points to examples from international fisheries law where denial of port services is an accepted means of enforcing what could otherwise be seen as attempts by port states to exercise extraterritorial jurisdiction (on the basis that the unlawful fishing took place beyond their maritime zones).117 However, he also notes that it cannot be conclusively stated that the decision to use only this form of enforcement measure has been taken as a matter of law or policy.118 I would suggest that, at present, Molenaar’s position represents a sound interpretation of international law. If a port state has prescribed a condition of entry relating to extraterritorial vessel operations (whether on the basis of the narrower or broader interpretation of prescriptive jurisdiction outlined above), then the combined effect of UNCLOS Articles 25 and 218 suggests that it can only exercise enforcement powers relating to the conditioning of entry or access to services. Predicting an Expansive Approach However, I do not believe that this position will survive over time. Instead I predict that it will be eroded by state practice and ultimately the international law position will be that port states’ enforcement jurisdiction is not so limited. Combined with the expansive interpretation of a state’s prescriptive jurisdiction given above, this will have the effect of robbing port entry conditions of any special meaning under international law. The phrase will instead be descriptive of port state jurisdiction more generally. The key weakness I see in the current approach to enforcement jurisdiction is that it can lead to results that offend against the principle of proportionality.119 While it would be permissible to deny a vessel entry to port for breaching a relatively unobtrusive rule relating to extraterritorial operations, such as a requirement to give advanced notice of its expected arrival time, it would not be permissible to issue that vessel’s operator with a small fine.120 In such circumstances imposing the fine would be a more proportionate response, and I 117  Molenaar, note 7 at 233–235, 237. See Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (22 November 2009); E. Molenaar “Port State Jurisdiction to Combat IUU Fishing: The Port State Measures Agreement” in D.A. Russell and D.L. VanderZwaag (eds) Recasting Transboundary Fisheries Management Arrangements (Martinus Nijhoff Publishers, Leiden: 2010). 118  Molenaar, note 7 at 235. 119  See above subsection: General Limits. 120  See related comments on this “somewhat paradoxical situation”: Ringbom (2011), note 3 at 627.

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do not believe that the international community will support this kind of distinction in the long term. Port states can continue to argue that foreign vessels take conditions of port entry (and any accompanying enforcement provisions) as they find them, voluntarily submit to the port state’s territorial jurisdiction on arrival, and can choose to go elsewhere if they do not like the law in question. There is a limited body of state practice supporting this predicted development although, importantly, as far as I am aware this practice is limited to port states having enacted laws relating to extraterritorial operations—but not yet having enforced them against foreign-flagged vessels.121 The examples therefore carry significantly less weight than if they had been the subject of highprofile enforcement action without attracting international protest. The first example relates to the traditional notion of cabotage rules, which permit a state to regulate trade between its ports, including by licensing foreign vessels to conduct this kind of trade.122 Rules of this kind may apply to the employment conditions aboard vessels, for example, but will not apply only when the vessel is within the state’s territorial sea or internal waters. As long as the vessel is trading between domestic ports the cabotage rules will apply. This suggests that, in this particular context, international law has long been comfortable with a degree of regulation over the extraterritorial operations of foreign vessels.123 Second, there is the growing use of information requirements that compel foreign vessels to provide information before entry to port, such as the EU’s unilateral reporting requirements relating to dangerous or polluting goods and other matters,124 even though the vessel might be on the high seas when the information is requested, as the requirement is to provide it at least three days prior to arrival.125 121  Molenaar, note 7 at 232–233. 122  E.M. Giemulla “Cabotage” in Rüdiger Wolfrum (ed) The Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford: 2008). 123  See Marten, note 2 at 199–202, discussing the impact of such rules in the context of Australian employment legislation. 124  See Directive 2002/59/EC of 27 June 2002 establishing a Community vessel traffic monitoring system and repealing Council Directive 93/75/EEC, Art. 13(2); Directive 2009/16/EC of 23 April 2009 on port State control, Art. 9 and Annex III. See Ringbom (2008), note 3 at 253–256; compare A. Proelss “The ‘Erika III’ Package: Progress or Breach of International Law?” in H.-J. Koch and D. König (eds) Climate Change and Environmental Hazards Related to Shipping: An International Legal Framework (Martinus Nijhoff Publishers, Leiden: 2012) 150–151. 125  Directive 2009/16/EC of 23 April 2009 on port State control, Annex III.

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Third, there are rules that take into account foreign vessels’ extraterritorial operations on arrival, in a manner that goes further than the EU aircraft emissions rules noted above. These examples include not just asking for information on what happened beyond the state’s maritime zones, but by actually taking into account how the vessel was operated en route to port. Elements of this approach can be found in the Australian compulsory pilotage requirements in the Great Barrier Reef area, which are deemed to have been breached when a vessel arrives in port without having taken on a pilot.126 More controversially the Australian government had enacted legislation requiring vessels to take on pilots when navigating the Torres Strait,127 although it later announced that it would only take enforcement action against vessels that actually visited an Australian port.128 The Australian legislation has relied on fines to enforce these rules, as opposed to denial of entry to port.129 Australia was effectively introducing a condition of port entry that, prior to arrival, a vessel must have complied with its pilotage rules, which arguably lacked any legitimate basis under international law.130 Australia has since changed its Torres Strait pilotage rules to apply only to foreign vessels in its territorial sea or internal waters.131 However, before this reform took effect the United States indicated support for Australia’s earlier approach in relation to pilotage in the Strait of Bonifacio, suggesting that a pilotage regime could be enforced as a condition of port entry in accordance with Australia’s approach in the Torres Strait.132 Other examples where a state has introduced rules relating to extraterritorial vessel operations that can be enforced by way of fine or other penalties beyond denial of entry to port (or port services) include the United States Oil 126  Great Barrier Marine Park Act 1975 (Aust), ss. 59C and 59D. This was previously the position in relation to the Torres Strait compulsory pilotage zone as well, see Marten, note 2 at 105. 127  Navigation Act 1912 (Aust), s. 186I. 128  Australian Government “Revised Pilotage Requirements for Torres Strait” (Marine Notice 8/2006, 16 May 2006). 129  Great Barrier Marine Park Act 1975 (Aust), ss. 59C and 59D; Navigation Act 1912 (Aust), s. 186I; Navigation Act 2012 (Aust), s. 166. 130   The approach drew international protest from the United States and Singapore: R.C. Beckman “PSSAs and Transit Passage: Australia’s Pilotage System in the Torres Strait Challenges the IMO and UNCLOS” (2007) 38 Ocean Development and International Law 325. 131  Navigation Act 2012 (Aust), ss. 166–167. 132  E.R. Wilcox (ed) Digest of United States Practice in International Law 2010 (Oxford University Press, Cary: 2011) 520–522.

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Pollution Act of 1990,133 certain domestic ballast water requirements (now the subject of an international convention)134 that require the exchange of ballast water beyond a port state’s territorial sea,135 and a recent United States Act on cruise vessel safety requiring the operation of certain security measures while a vessel is en route to a United States port.136 Even if there were solid examples of the laws described above being enforced against foreign vessels, the prediction made here still has an obvious weakness in the form of UNCLOS Articles 25 and 218. If the narrower interpretation of a state’s enforcement jurisdiction in relation to port entry conditions is sound, then how can it ever change while these articles in force? My response to this is that the articles will come to be interpreted as confirming what states are permitted to do, but without restricting their ability to exercise port state enforcement jurisdiction in this more expansive manner. Article 25 confirms an enforcement power that might otherwise be controversial, for example allowing a port state to prevent a vessel in breach of its health regulations from accessing port by taking preventative action in the territorial sea during the innocent passage phase. Article 218 gives port states jurisdiction to prosecute a vessel over an event that happened far from the state’s territory, which again would be controversial in the absence of this provision. I do not believe these provisions are comprehensive enough, or clearly linked enough within the structure of UNCLOS, to impose such a major restriction on the enforcement jurisdiction of port states if significant state practice builds up to suggest otherwise. If this shift in the international community’s approach to port state jurisdiction takes place, then port entry conditions will simply be those conditions a vessel must meet to enter port in full compliance with a state’s laws. This interpretation has the advantage of simplicity, with an expansive prescriptive jurisdiction being matched by an expansive range of enforcement options. It also accords with the manner in which “port entry conditions” has been used on many occasions to describe a port state’s rules applicable to visiting foreign vessels generally.137 I make this prediction on the basis that the boundaries of 133  33 USC §§ 2716 and 2716a; see Molenaar, note 7 at 232–233. 134  International Convention for the Control and Management of Ships’ Ballast Water and Sediments, note 58. 135  16 USC 4701 and following; Nonindigenous Aquatic Nuisance Prevention and Control Act 1990 (US); National Invasive Species Act 1996 (US); Quarantine Act 1908 (Aust), s. 78A. 136  Cruise Vessel Security and Safety Act 2009 (US). See discussion in Marten, note 2 at ch. 4. 137  See for examples G.G. Wilson, (ed) Elements of International Law by Henry Wheaton: The Literal Reproduction of the Edition of 1866 by Richard Henry Dana Jr (Clarendon

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port state jurisdiction will continue to be pushed by the more powerful port states such as the United States and the EU, which will perceive a benefit from an expansive form of port state jurisdiction in order to advance their interests. This political impetus, combined with a repetition of the mantra that port state jurisdiction can almost invariably be grounded in a state’s territorial jurisdiction, and the notion that a wide range of enforcement options can lead to more proportionate outcomes, will make arguments for an expansive interpretation of port state jurisdiction easier to maintain than a more nuanced reading of the provisions of UNCLOS. However, I do not believe that this predicted shift can be substantiated at this point in time and furthermore, I am not arguing that a development along these predicted lines is necessarily a good thing. I simply argue that, faced with what is essentially a debate between whether a particular form of regulation will be characterized as a territorial or an extraterritorial exercise of jurisdiction, the former position will in time be established as the prevailing view under international law, given the powerful simplicity of arguments relating to the territorial basis of jurisdiction when combined with a port state’s ability to control the entry of foreign vessels to its ports.

Could Port State Jurisdiction Be Further Limited?

The potential for a particularly expansive interpretation of port state jurisdiction to emerge raises the question of whether international law will also evolve to provide further limitations on its use by ambitious states. At present, beyond the standard international law limits on a state’s prescriptive jurisdiction such as the good faith principle and the abuse of rights doctrine, the real limits on port state jurisdiction are economic and political.138 Considerable progress has been made in terms of curbing discrimination by flag from states’ shipping regulations, but this is of limited significance where stringent shipping standards applicable to foreign-flagged vessels in general are concerned. World trade law may yet provide some effective limits on unilateral standards that impact on the movement of goods and services, but only within the specific context of Press, Oxford: 1933) para. 102; Patterson v Bark Eudora 190 US 169 (1903) 178; Sandberg v McDonald 248 US 185 (1918) 195; Strathearn Steamship Co Ltd v Dillon 252 US 348 (1920) 356; Bernhardt, note 30 at 291; Air Transport Association of America v Secretary of State for Energy and Climate Change [2011] ECJ Case C-366/10, para. 128; see also Marten, note 2 at 108–109. 138  Johnson, note 66 at 50–51; see above section: PORT STATE JURISDICTION IN PRACTICE.

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the relevant agreements. A more broadly applicable principle under which the legitimacy of port states’ regulations could be assessed could play a useful role in curbing any particularly excessive claims to jurisdiction. The principle that would best fill this role would be a “substantial connection” test,139 which each exercise of a port state’s prescriptive jurisdiction would have to meet. If this test became an accepted principle of international law, through an accumulation of state practice, incorporation within maritime conventions, or by way of a judgment from an international tribunal, it might allow some regulations based on port state jurisdiction to be ruled excessive even though the concept had been given an expansive interpretation of the kind discussed above. The test would involve states arguing against a broad list of factors that a port state’s regulation,140 even when drawing on the territorial basis of jurisdiction, was nonetheless insufficiently connected to the state and its interests to be justifiable under international law.141 This would be a high threshold to meet, given that in a large number of cases maritime regulations are based on health, security, safety or environmental goals, and the port state could point to its interest in meeting these goals to justify the rule. However, in some cases involving regulation that was in effect targeting a vessel’s extraterritorial operations it might be a particularly effective means of arguing that a port state had overstepped the mark. Older shipping-specific concepts such as the idea of restricting jurisdiction over a vessel’s “internal affairs” could be drawn on along with general principles such as proportionality. A hypothetical example of a rule that I believe would fail the substantial connection test is one that focused on the corporate operation behind a foreign vessel,142 attacking a vessel’s ownership structure in an attempt to effectively ban one-ship companies in situations where the de facto owner of the vessel actually controls multiple ships. A rule of this nature, going to the heart of flag state jurisdiction under UNCLOS and the shipping industry’s economic interests could be deemed too far removed from a single port state’s legitimate interests to be justified under international law. 139  See F.A. Mann “The Doctrine of Jurisdiction in International Law” (1964) 111 Receuil des Cours 1, 49; Mann, note 113 at, 28–29; Crawford, note 21 at 457 and 486. 140  See for example the factors listed in American Law Institute, note 45 at para. 402; J.T. Oliver “Legal and Policy Factors Governing the Imposition of Conditions on Access to and Jurisdiction over Foreign-Flag Vessels in US Ports” (2009) 5 South Carolina Journal of International Law and Business 209, 325–327. 141  See similarly Molenaar, note 7 at 228; Ringbom (2008), note 3 at 372. 142  See the discussion of regulations targeting vessel administration in Marten, note 2 at ch 6.

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While a “substantial connection” test has little to pin it down beyond a list of factors for consideration, and a solid private international law pedigree,143 I think it remains the best hope of finding a principled way of addressing the steady expansion of port state jurisdiction.144 A scenario in which the international community agrees to a convention governing all aspects of a port state’s jurisdiction over visiting foreign vessels is incredibly unlikely. States simply would not accept such a broad limit on their sovereignty—after all, there must be issues that we have not yet thought of that will one day be the subject of port state attention. And while over time more and more aspects of shipping are being regulated by international agreements, there will always be states that wish to accelerate this process and drive up standards unilaterally if need be. If the extent of port state jurisdiction one day extends as far as this chapter has suggested it might, there should be some form of brake applied given the international nature of shipping and the priority that should be given to the development of uniform rules in this sector. I believe the only brake that international law is likely to provide is something along the lines of a substantial connection test to address not only those situations that are a clear abuse of rights or in breach of an existing international convention, but also in situations where a port state has significantly overstepped the proper boundaries of what they should be permitted to regulate (boundaries that would admittedly take much time and debate to establish). I cannot see it being a dramatically effective brake: even with the evolution of this kind of approach, economic and political considerations will remain the primary limit on the exercise of this jurisdiction. If a substantial connection test were to evolve, or even if a narrower interpretation of the extent of port state jurisdiction more generally were to gather significant support, it would be flag states that would be expected to lead the push. After all, it is flag states—particularly those operating large open registries—that would appear to have the most to gain from an IMOled approach to shipping regulations, and be the most opposed to unilateral standards established by port states. However, in contrast with the two 143  See for example the “most closely connected” concept in Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contrac­ tual obligations (Rome I); Regulation No. 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). Mann also drew on the allocation of powers within federal systems of government: note 137 at 45–46. 144  For further discussion see Marten, note 2 at 210–221.

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hundred years or so prior to 1950, states no longer seem to view merchant shipping and its regulation as a major political priority of the kind that would see frequent interventions and protests in response to perceived excesses of port state jurisdiction. Given the longevity and tradition behind the concept of a flag state’s authority over the vessels in its registry, the silence of flag states seems remarkable.145 Three key reasons can be posited for this development. First, UNCLOS has taken much of the heat out of this area by settling the more controversial aspects of coastal state jurisdiction, and thus situations where states’ vessels might be subject to enforcement actions at sea. Second, the success of the regional port state control regimes, and the range of IMO- and ILO-administered conventions they enforce, means that day-to-day exercises of port state jurisdiction are primarily covered by international standards as opposed to unilateral ones. Third, the growth of open registries has to some extent severed the strong political and economic interests in merchant shipping that developed countries formerly had in their domestic fleets.146 With flag states no longer paying such close attention to port states’ growing incursions into matters that may formerly have been seen as the former’s exclusive preserve,147 port states have been given a relatively free hand with which to push the boundaries of their jurisdiction. As a result port state jurisdiction is a concept expanding both in practice148 and, as this chapter has argued, in its scope as a matter of international law.

145  For further discussion see Marten, note 2 at ch. 7. 146  See Marten, note 2 at ch. 3. 147  See McDorman, note 93 at 310 and 321–322. 148  Marten, note 2 at 225–228.

CHAPTER 6

Assistance at Sea and Places of Refuge for Ships: Reconciling Competing Norms Aldo Chircop Introduction The provision of humanitarian assistance to persons in distress at sea is an ancient custom. The custom entails assistance to persons and ships in various force majeure situations in response to requests, including through the provision of a place of refuge for the distressed vessel and those on board. Beneficiaries of the custom in its various manifestations enjoy assistance and particular privileges, including exemption from certain rules. The exemptions effectively create valid defenses for what otherwise constitutes an infringement of treaty and/or national law. The place of refuge is one manifestation of the humanitarian custom and has its foundations in early maritime and trade law. While provision of various types of assistance in different force majeure situations at sea have been codified, the customary right of a vessel in distress and those on board to request refuge and the counterpart duty of the closest jurisdiction to grant a place of refuge and has not been codified, despite a recent call for the adoption of a legal instrument establishing the framework to govern obligations, modalities and procedures.1 While the scope of the codified exemptions on humanitarian grounds is clear, the actual content of the custom with regard to places of refuge remains subject to uncertainty.2 In the contemporary context, place of refuge is defined * Professor, Schulich School of Law, Dalhousie University. 1  Places of Refuge: Submitted by the Comité Maritime International (CMI), IMO Doc. LEG 95/9, 23 January 2009 [hereafter CMI Instrument]. See S. Hetherington “Places of Refuge for Ships in Need of Assistance: The Work of the Comité Maritime International” (2010) 24 Ocean Yearbook 331–348. 2  Contemporary literature supports the proposition that the custom continues, possibly with modifications: A. Chircop, “The Customary Law of Refuge for Ships in Distress” in A. Chircop and O. Linden (eds) Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom (Martinus Nijhoff Publishers, Leiden: 2006), 163–229 at 222–229; E. van Hooydonk Places of Refuge: International Law and the CMI Draft Convention (Lloyd’s List,

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as “a place where a ship in need of assistance can take action to enable it to stabilize its condition and reduce the hazards to navigation, and to protect human life and the environment” and a ship in need of assistance “is a ship in a situation, apart from one requiring rescue of persons on board, that could give rise to loss of the vessel or an environmental or navigational hazard.”3 The literature on customary law points to theoretical and practical difficulties in the notion of custom as a source of international law.4 Customary norms which have not been authoritatively ascertained may be shrouded in uncertainty. State practice may not be uniformly consistent and the custom may be observed in general terms.5 While there should be a common understanding of the core content of a custom, there may be divergence of opinions regarding application in a particular situation and the import of its full consequences. The customary norm may interact with or even be in competition with other norms of international law. In such situations uncertainty arises with regards to normative hierarchy and prioritization of application. One issue that arises is whether, in the case of conflict between norms whose sources are in treaty and custom respectively, may be resolved by an argument of hierarchy between sources of international law. A second issue arises when the conflict is between substantive rules of the same source (e.g., treaty rules), whether the perceived conflict may be resolved through interpretation or some notion of hierarchy as London: 2010), 331; A.P. Morrison Places of Refuge for Ships in Distress: Problems and Methods for Resolution (Martinus Nijhoff Publishers, Leiden: 2012), 353–358. 3  Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2003, IMO Doc. A 23/Res.949, 5 March 2004 [hereafter IMO Refuge Guidelines], paras 1.18–1.19. 4  Several jurists have proposed a range of theories to explain how custom emerges and may be used as a source of law, e.g.: A. D’Amato The Concept of Custom in International Law (Cornell University Press, Ithaca N.Y.: 1971); H.W.A. Thirlway International Customary Law and Codification: An Examination of the Continuing Role of Custom in the Present Period of Codification of International Law (Sijthoff, Leiden: 1972); K. Wolfke Custom in Present International Law (Martinus Nijoff Publishers, Dordrecht: 1993); M.E. Villiger Customary International Law and Treaties: A Manual on the Theory and Practice of the Interrelation of Sources (2nd rev. ed.) (Kluwer: The Hague: 1997); B.D. Lepard, Customary International Law: A New Theory with Practical Applications (Cambridge University Press, Cambridge: 2010). 5  “The Court does not consider that, for a rule to be established as customary the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules the Court deems it sufficient that the conduct of states should, in general, be consistent with such rules . . .” Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits), ICJ Reports 1986, at para. 186.

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between substantive rules in the event that mutual accommodation is not possible. These are interesting questions with regard to places of refuge because a coastal State’s right to self-protection and prerogative to refuse refuge may contradict its duty to protect the marine environment. Outside codification, an authoritative exposition of the content of a custom is the realm of international adjudication,6 but to date no international court has had the opportunity to pronounce itself on the refuge custom.7 This chapter revisits the longstanding custom of granting refuge to ships in distress, today understood to encompass the broader scope of ships in need of assistance, ascertains its status as it appears to be practiced by States and comments on how States appear to be exercising jurisdiction within the powers conferred upon them by the United Nations Convention on the Law of the Sea, 1982 (UNCLOS).8 The chapter considers issues of normative hierarchy guiding State conduct and concludes with observations regarding the relationship between the refuge custom and UNCLOS.

6  For example: baseline delineation and historic waters: Fisheries Case (United Kingdom v. Norway), Judgment, ICJ Reports 1951; continental shelf, North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of German/Netherlands), Judgment, ICJ Reports 1969; EEZ: Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, ICJ Reports 1985. For discussion on international custom in international adjudication, see Wolfke, note 4 at 8–29. 7  There were opportunities to do so in the International Tribunal for the Law of the Sea. The Tribunal was seized of prompt release cases with regards to fishing and support vessels. In comparison, no flag State has ever stepped in to seek the release of a master of vessel flying its flag where the vessel became a casualty. For example, Captain Mangouras, master of The Bahamas-registered “Prestige” was subjected to prolonged detention. He was subsequently released on bail after a large security posted by the ship insurer. Captain Mangouras challenged the bail amount of 3 000 000 euros as excessive all the way to the European Court of Human Rights. A divided court ruled that his human rights were not violated. Case of Mangouras v. Spain (Application no. 12050/04), Judgment, 28 September 2010. In a different context, a Danish case appealed to the European Court of Justice, the Court had opportunity to consider the refuge custom, but refrained, leaving it for the national court concerned to determine the application of the custom in domestic law. Anklagemyndigheden v. Peter Michael Poulsen and Diva Navigation Corp, ECJ Judgment 24.11.1992, Case C-286/90. 8  United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 3 [hereafter UNCLOS].

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International Humanitarian Law at Sea Context

The origin of the refuge custom has its roots in the longstanding humanitarian practice of providing assistance to persons in distress when at sea and/or shipwrecked. Humanitarian considerations recognized a right of persons in distress at sea and shipwrecked on the shores of a foreign jurisdiction to request and receive assistance from others at sea and on land, and the counterpart duty of those in the vicinity, whether at sea or on land, to provide assistance. In essence, there was a right to request assistance and a duty to provide it.9 The custom has evolved in modern times into applications in several different situations, most of which have been codified in various instruments of international maritime law. Mariners have a duty to provide assistance to vessels in distress at sea, now codified in the International Convention on Safety of Life at Sea, 1974 (SOLAS),10 UNCLOS11 and International Salvage Convention, 1989 (Salvage Convention).12 Life salvage is a form of salvage together with property and environmental salvage, but is not subject to the same contractual rules for remuneration.13 States also have a legal duty to conduct search and rescue (SAR) when those in need of assistance at sea are within the vicinity of their coasts or in areas within their jurisdiction or area of SAR responsibility. This duty is set out in SOLAS, the International Convention on Maritime Search and Rescue, 1979 (SAR Convention) and other instruments.14 As mentioned 9  Chircop, note 2 at 222–228. 10  “The master of a ship at sea, on receiving a signal from any source that a ship or air craft or survival craft thereof is in distress, is bound to proceed with all speed to the assistance of the persons in distress informing them if possible that he is doing so.” International Convention for the Safety of Life at Sea, 1974, London, 1 November 1974, 1184 UNTS 2, Ch. I Art. 10(a) [hereafter SOLAS]. 11  UNCLOS Art. 98. This provision imposes a duty on States Parties to require the masters of ships flying their flags to render assistance to others at sea. 12  “Every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea.” International Convention on Salvage, London, 28 April 1989, ATS 1998 No. 2 [hereafter Salvage Convention], Art. 10(1). 13  National courts may re-open an agreement for an exorbitant life salvage fee extracted from rescued distressed passengers. The Medina 1877 2 PD 5. 14  “Each Contracting Government undertakes to ensure that necessary arrangements are made for distress communication and co-ordination in their area of responsibility and for the rescue of persons in distress at sea around its coasts. These arrangements shall include the establishment, operation and maintenance of such search and rescue facilities as are deemed practicable and necessary, having regard to the density of the seagoing traffic and the navigational dangers and shall, so far as possible, provide adequate

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earlier, the international law of the sea and international maritime law contain exceptions to the normal application of rules and standards in force majeure situations. These exceptions have the effect of providing valid defenses for distressed vessels and their crews.15 The focus of this chapter is on the right of distressed vessels to request and enter a temporary place of refuge to enable them to stabilize their condition before continuing their maritime adventure or proceeding to another destination. An underlying and longstanding belief is that the saving of the vessel betters the chances of saving the crew. In contemporary practice, there is a greater likelihood of the crew, or most of the crew being airlifted to safety while the master, a skeleton crew and the salvor attempt to stabilize the condition at sea before proceeding to a place of safety. The request may be made directly by the vessel in distress, if it is able to do so, or through the salvor providing assistance. The vessel and those on board interrupt their intended voyage out of necessity and call into an unscheduled port or safe haven. By doing so they may be in breach of local law, but are excused from the consequences of the breach and enjoy a valid defense for this purpose, at least historically. Instead, the distressed vessel and crew enjoy a measure of assistance and protection, as well as exemptions from certain normal requirements for visiting vessels.

The Refuge Custom

Origins and Evolution This author and others have traced early practices and explained the evolution of the refuge custom to modern times.16 As early as 1809 Lord Stowell articulated the custom as widely understood and practiced at the time and since then.17 By the end of the 19th century the custom was well-established and means of locating and rescuing such persons.” SOLAS, note 10 Ch. V Art. 7; “Parties shall ensure that necessary arrangements are made for the provision of adequate search and rescue services for persons in distress at sea round their coasts.” International Convention on Maritime Search and Rescue, London, 27 April 1979, 405 UNTS 97, Annex, Art. 2.1.1. See also: UNCLOS Art. 98; Convention on International Civil Aviation, Chicago, 7 December 1944, 15 UNTS 295, Art. 25. 15  For example in UNCLOS Art. 18(2) as an exception in innocent passage and Art. 39(1)(c) as a further exception in transit passage. 16  Chircop, note 2 at 163–229. van Hooydonk, note 2 at 74–94; Morrison, note 2 at 75–126. 17  “Now it must be an urgent distress; it must be something of a grave necessity; such as is spoken of in our books, when a ship is said to be driven in by stress of weather. It is not sufficient to say it was done to avoid a little bad weather, or in consequence of foul winds,

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appeared to be widely respected in state practice.18 The situation that justified the diversion and delay of the original voyage was one which threatened the vessel and the lives and property on board. In order to discharge the burden of proof, the claimant had to satisfy the objective test of real and irresistible distress, i.e., an actual or imminent situation of danger and not a condition which was self-induced. The dangers could relate to stress of weather (exceptionally bad weather beyond what was reasonably foreseeable and to be expected of the voyage at hand), exhaustion of key necessaries (e.g., water and food) as a result of unexpected protraction of the voyage, threats from belligerent activities, piracy or some other necessity due to unforeseen events. Refuge was usually requested of the closest coastal State or port authority as soon as the vessel was in safe waters. In a contemporary context the request is communicated in advance while the vessel is still at sea. The authority may have requested to review the ship’s documents, including the ship’s papers and voyage instructions, charts and log book. If the matter made it to court, in addition to the documents witnesses that attested to the events were called. Local authorities and courts were frequently wary of such requests. Early in the 19th century and subsequently Canadian and US case law evidenced numerous instances of fraud where claiming a place of refuge may have served the cause of contraband or other illegal activity, such as illicit fishing.19 the danger must be such as to cause apprehension in the mind of an honest and firm man. I do not mean to say that there must be an actual physical necessity existing at the moment; a moral necessity would justify the act, where, for instance, the ship had sustained previous damage, so as to render it dangerous to the lives of the persons on board to prosecute the voyage. Such a case, though there be no existing storm, would be viewed with tenderness; but there must be at least a moral necessity. Then again, it must not be a distress which he has created himself, by putting on board an insufficient quantity of water or of provisions for such a voyage, for there the distress is only a part of the mechanism of the fraud and cannot be set up in excuse for it; and in the next place the distress must be proved by the claimant in a clear and satisfactory manner. It is evidence which comes from himself, and from persons subject to his power, and probably involved in the fraud, if any fraud there be, and is, therefore, liable to be rigidly examined.” The Eleanor, Edwards 135, 165 Reprints 1058. 18  Chircop, note 2 at 191–192. 19  E.g.: Canadian cases: Judgement in the Case of the American Fishing Vessel Nabby, 18 August, 1818, Court of Vice Admiralty, Halifax (The Nabby), as reported in the Quebec Mercury, 10 November 1818, 356–357; Canada (Attorney-General) v. MacDonell (1883), 1 Ex. C.R. 99; Canada v. Valiant (The) (1914), 15 Ex. C.R. 392; May (The) v. Canada, [1931] S.C.R. 374; Queen City (The) v. Canada, [1931] S.C.R. 387; Canada (Attorney-General) v. Natalie S. (The), [1932] Ex. C.R. 155; Rex v. Flahaut, [1935] 2 D.L.R. 685; Cashin v. Canada. US cases: Schooner Exchange v. McFaddon 11 U.S. 115, 7 Cranch 116 (1812), at 141; Brig Concord

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The vessels that claimed refuge were any class of vessel, ship or boat, and in fact were far more diverse than contemporary practice so as to include commercial vessels, fishing vessels, warships and even privateers.20 Warships were required to notify local authorities and usually conditions were attached to refuge, such as the duration of the stay and number of ships, unless vessels beyond the quota remained at high risk, in which case they were also likely to enjoy refuge. This practice appears to remain the case in a contemporary setting.21 The places of refuge did not necessarily entail harbor or port entry and in fact a bay, creek or other area that served as haven from bad weather may have been the place of refuge. Once in the place of refuge, the coastal authorities were expected to provide protection and the vessel could undertake repairs at reasonable commercial rates and acquire fresh necessaries. The vessel was provided with a degree of immunity from the usual enforcement of customs and immigration laws.22 Generally, the vessel could not unload cargo, unless necessary, and certainly could not trade, unless it was essential that the master, in exercising a general average act, needed to sell part of the cargo to enable the vessel to make repairs, purchase necessaries and continue the maritime adventure.23 Permission from the local authorities was required as otherwise the master was in violation of customs regulations. Distressed vessels were not to be detained and could depart at any time. If the vessel was shipwrecked, the coastal authority had the duty to provide assistance to persons on board and to continue to provide protection over the ship, cargo and personal effects.24 Non-respect of the custom could and did trigger claims for compensation. For example Great Britain, which outlawed and suppressed slavery, had to pay compensation to owners for the slaves that were freed from vessels when taking refuge in a port under its control.25 In the 19th century the custom was so important in state practice that the right to refuge was equated in importance to the freedom of navigation, and perhaps was an integral part of that freedom. In 1886 the (The), 13 U.S. 387, 9 Cranch 387 (1815); New York (The), 16 U.S. 59, 3 Wheat. (1818); Aeolus (The), 16 U.S. 392 (1818); Nuestra Senora de Regla, 84 U.S. 29 (1872). 20  Chircop, note 2 at 191. 21  International Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge, Cambridge University Press, 1995), Art. 21. 22  Schooner Exchange v. McFaddon, note 19. 23  Chircop, note 2 at 191. 24  Chircop, ibid. at 192. 25  J.B. Moore, A Digest of International Law vol. II (Washington, Government Printing Office, 1906) 350–352.

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United States’ Secretary of State was of the view that “the right to navigate the ocean and seek shelter in case of distress . . . [was] . . . a right sanctioned by the law of nations . . . [and] no independent nation would submit to their violation,” so that the seizure of the “Rebecca” was considered a “violation of the law of nations as well as the law of humanity.”26 Since the 18th century the practice of the custom was captured in case law, national law, peace treaties, most favored nation clauses in bilateral trade agreements before the advent of multilateral trade negotiations, regional agreements, and in contemporary times through deliberations of international organizations. In many instances the reciprocal provision of refuge and assistance was an integral and vital provision of a peace treaty.27 There has been divergence at the margins of the custom, i.e., in terms of actual benefits provided after refuge was granted, but the clear common element in state practice was that the vessel in distress was to be assisted and deserved a measure of protection, including immunities and exemptions from the exercise of jurisdiction. There was a high degree of consistency in bilateral treaty practice, in great part because of the emergence and frequent replication of most favored nation clauses in treaties of friendship, commerce and navigation.28 While these bilateral treaties were primarily trade agreements, they included provisions to assist vessels of either party. The text provided for coastal State assistance to a ship in distress in a foreign port. The expectations of the vessel and those on board were set out and they had access to consular representation.29 Even with the advent of reciprocal port access under the Convention on the International Regime of Maritime Ports, 1923 (Maritime Ports Convention)30 and multilateral trade agreements references to places of refuge continued to appear in other types of bilateral and regional agreements, including with regard to maritime boundary delimitation treaties,31 fisheries,32 and marine 26  Ibid., 343–345. 27  For example the Jay Treaty, 1794, which helped settle outstanding issues between Great Britain and the United States in the aftermath of the Treaty of Paris, 1783. Chircop, note 2 at 179. 28  Chircop, ibid., 167. 29  Chircop, ibid., 192. 30  Convention on the International Regime of Maritime Ports, Geneva, 9 December 1923, 119 British and Foreign State Papers 568–581 (1924) [hereafter Maritime Ports Convention]. 31  Treaty of Peace and Friendship between Chile and Argentina, Vatican City, 29 November 1984, , Annex 2, Art. 3. 32  Convention concerning Fishing in the Black Sea, Varna, 7 July 1959, 377 UNTS 220 (1960), Arts. 2 and 3. See also Convention Concerning Cooperation for the Saving of Human Lives

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environmental protection.33 The advent of multilateral law-making at the end of the 19th century and emergence of international organizations after the First World War provided venues for continued development of international humanitarian law. Some conventions addressed assistance to or exceptions for ships in distress, but the core content of the refuge custom remained uncodified. There was recognition of its existence by inference or reference in particular treaty terms. At a minimum, the idea that a ship in distress should be assisted (not necessarily through refuge) and enjoy certain exemptions from local law was elevated to further exceptions from the application of particular international treaty rules. It is likely that the closest to a right to refuge in a multilateral treaty occurred in the law of armed conflict, developed in part by the Second International Peace Conference in The Hague in 1907, when Convention XIII provided for warships in distress to benefit from prolonged stays in neutral ports, to resupply and take bunkers to enable vessels to sail to the nearest home port.34 Prizes in distress could enter neutral ports, a rule reiterated in the Convention on Maritime Neutrality, 1928.35 Convention XI did not expressly exempt ships and Assistance to Vessels and Aircraft in Distress in the Black Sea, Moscow, 11 September 1956, 266 UNTS 234 (1957), Arts. 2–3. 33  Mediterranean States agreed to “. . . define national, subregional or regional strategies concerning reception in places of refuge, including ports, of ships in distress presenting a threat to the marine environment. They shall cooperate to this end and inform the Regional Centre of the measures they have adopted.” Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, combating Pollution of the Mediterranean Sea, Malta, 25 January 2002 (in force on 17 March 2004), Art. 16, online: ; Convention on the Protection of the Marine Environment of the Baltic Sea Area, Helsinki, 9 April 1992 (in force on 17 January 2000), online: , Annex IV, Art. 12; Bonn Counter Pollution Manual (Chap. 26), adopted within the framework of the Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil and Other Harmful Substances, Bonn, 13 September 1983, online: ; Arctic Marine Shipping Assessment 2009 Report (Iceland: Protection of the Arctic Marine Environment, 2009), available online: . 34  Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War, The Hague, 18 October 1907, , 5 May 2005, Arts. 14, 17 and 19. The normal stay was 24 hours. 35  Convention XIII, ibid., Art. 21; Convention on Maritime Neutrality, Havana, 20 February 1928, , 5 May 2005, Art. 17.

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in distress from capture as other vessels, such as postal, fishing and a limited range of other ships.36 Conventions on the law of the sea made no provision for port entry for distressed vessels. The Convention on the Territorial Sea and Contiguous Zone, 1958 provided an exception for distressed vessels or in force majeure when exercising innocent passage in the territorial sea, which is otherwise required to be continuous and expeditious, thus permitting no stoppage or anchoring in the territorial sea.37 This exception is replicated in UNCLOS with regard to a wider range of passages, including innocent passage through the territorial sea, archipelagic sealanes passage and transit passage through straits used for international navigation.38 Vessels assisting the distressed vessel, such as salvage vessels, also benefit from the exception.39 In international maritime law the Maritime Ports Convention,40 which established the principle of equal treatment in maritime ports, did not regulate refuge for ships. However, it extended the application of the Statute “to ports of refuge specially constructed for that purpose,”41 implicitly referring to the practice, leaving the definition of the content to custom. Other international maritime law conventions addressed force majeure situations without referring to places of refuge specifically. Force majeure situations justified exemptions from the application of particular rules. These include the International Convention on Load Lines, 1966,42 Convention on the Prevention of Dumping of Wastes and other Matter, 1972,43 SOLAS,44 and International Convention for

36  Convention (XI) relative to certain Restrictions with regard to the Exercise of the Right of Capture in Naval War, The Hague, 18 October 1907, , 5 May 2005. 37  Convention on the Territorial Sea and Contiguous Zone, Geneva, 29 April 1958, 516 UNTS 205, Art. 14(3). 38  UNCLOS Arts. 18(2), 39(1)(c), 45 and 52(1). 39  UNCLOS Art. 18(2) with regard to “rendering of assistance to persons, ships or aircraft in danger or distress.” 40  Maritime Ports Convention, note 30, Statute Art. 2. 41  Ibid., Art. 2, Protocol of Signature, para. 1. 42  International Convention on Load Lines, 1966, 5 April 1966, 640 UNTS 133, Art. 8. 43  Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 29 December 1972, 1046 UNTS 120 as amended by the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 7 November 1996, 36 ILM 1, Art. V(1). 44  SOLAS, note 10.

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the Prevention of Pollution from Ships, 1973.45 Exemptions tended to be implemented in national legislation.46 The instrument that came closest to addressing the refuge custom was the International Salvage Convention, 1989 but stopped short of doing so.47 In Article 11 the Convention stipulates a duty for the coastal State to take into account the need for cooperation among all the actors concerned to enable successful salvage. However, it did not establish a legal obligation to provide a place of refuge to enable the salvor bring the assisted vessel to a place of safety, as contracted in the salvage agreement. Successful salvage frequently requires admission of the salved vessel to a port or other temporary location. The provision reflects compromise text proposed by the Comité Maritime International (CMI) in the deliberations of the IMO’s Legal Committee. Although there were several delegations and accredited organizations that favored the introduction of an obligation to provide a place of refuge to remove uncertainty and perhaps even pre-designate places of refuge, it was felt by others that the nascent convention, as a private law instrument, was not an appropriate location for the introduction of a public law duty and that the interests of coastal States had to be taken into account.48 There was also concern that an instrument with such an obligation on coastal States, which significantly narrows the ability of a State to take protective measures, even if adopted, might not secure 45  International Convention for the Prevention of Pollution from Ships, London, 2 November 1973, 1340 UNTS 184, as amended by Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships of 1973, 17 February 1978, 1340 UNTS 61, Annex 1, Art. 11. 46  For example: In a 1977 law, Spain provided that the “penalties provided by this Act shall not apply to dumping in cases of force majeure, when the safety of human life or of a ship or aircraft is threatened.” Act No. 21/1977 of 1 April 1977 concerning the Imposition of Penalties in Cases of Marine Pollution by Dumping from Ships or Aircraft, s. 6, UNLS ST/ LEG/SER.B/19, 159. New Zealand created a special defense to dumping offences in a “case of force majeure caused by stress of weather, for the purpose of securing the safety of any ship or aircraft or offshore installation or fixed or floating platform, or any other artificial structure situated at sea or on the sea-bed.” Marine Pollution Act, 1974, s. 23(b), UNLS ST/ LEG/SER.B/19, 331. 47  “A State Party shall, whenever regulating or deciding upon matters relating to salvage operations such as admittance to ports of vessels in distress or the provision of facilities to salvors, take into account the need for cooperation between salvors, other interested parties and public authorities in order to ensure the efficient and successful performance of salvage operations for the purpose of saving life or property in danger as well as preventing damage to the environment in general.” Salvage Convention, note 12 Art 11. 48  The Travaux Preparatoires of the Salvage Convention, 1989 (CMI, Antwerp: 2003), 282–287.

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sufficient State Party subscription. Without understatement the drafting of Article 11 was considered “a most delicate matter.”49 Impact of Major Incidents The scope of understanding and application of the refuge custom has come under global and regional scrutiny because of the critical mass produced by the “Castor,” “Erika” and “Prestige” in 1999–2002.50 The concerns of coastal States pre-dated at least to 1967 when, and while not concerning the refuge custom, the “Torrey Canyon” casualty provided stark evidence of the threats posed by fully-laden supertankers, the dangers they posed to coastal State interests, the latter’s vulnerability to international shipping off its coasts and jurisdictional limitations when the vessel in distress is outside national jurisdiction. The casualty led to the important International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 (Intervention Convention)51 which significantly strengthened coastal State jurisdiction to enable it to take exceptional measures with regard to vessels in adjacent high seas areas that threatened its coastal interests in order to prevent, mitigate or eliminate grave and imminent danger of oil pollution,52 a provision also reiterated in UNCLOS.53 The taking of such measures is accompanied by the humanitarian duty to “afford persons in distress any assistance of which they may stand in need . . .”.54 The Intervention Convention served to underscore the territorial and extraterritorial significance of this extraordinary power in the arsenal of coastal States. “Erika”, “Castor” and “Prestige”, among others highlighted the problems that could arise if the measures taken by threatened coastal States, other than 49  Ibid., 283. 50  A. Chircop, O. Linden & D. Nielsen, ‘Characterizing the Problem of Places of Refuge for Ships,’ in A. Chircop & O. Linden (eds) Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom (Martinus Nijhoff Publishers, Leiden: 2006), 1–31. 51  International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Brussels, 29 November 1969, 9 ILM 25 [hereafter Intervention Convention], and Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil, 2 November 1973, 13 ILM 605. 52  “Parties to the present Convention may take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences.” Intervention Convention, note 51 Art. 1(1). 53  UNCLOS, Art. 221. 54  Intervention Convention, note 51 Art. 3(e).

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airlifting the crew, consisted of denial of shelter where the condition of the stricken vessel could be stabilized. Although the “Castor” was not a casualty, seven coastal States successively denied refuge and thereby prolonged the threat posed by a stricken vessel and potentially exposed other jurisdictions to the risk. “Erika” and “Prestige” were both casualties that ensued after refuge was denied. In both cases the vessels were lost and caused massive oil pollution on the shores of primarily France and Spain respectively, the refusing States. Both cases involved aging vessels. These incidents played a key role in propelling initiatives in the IMO and EU to address places of refuge. Even before these casualties some European courts appeared to be taking a more restrictive approach in the application of the custom, favouring the protection of coastal State interests. In an Irish case, the court held that no further duty was owed to the vessel after the humanitarian rescue of the crew was completed.55 A Dutch court went even farther by expressing the view that a casualty vessel does not enjoy the right of innocent passage through the territorial sea.56 Cognizant of the growing problem, initiatives were launched in the IMO aimed at addressing the institutional and management deficit in places of refuge decision-making.57 A series of non-prescriptive guidelines were adopted. The first two were adopted as Assembly resolutions. The first resolution concerned Maritime Assistance Services (IMO MAS Resolution) and recommended to Member States that they take steps to centralise maritime assistance services in one institution, to avoid the inefficiencies of multiple responsible institutions.58 A second Assembly resolution adopted the key Guidelines for Places of Refuge for Ships in Need of Assistance (IMO Refuge Guidelines).59 The guidelines provide a common framework to balance the prerogative of a ship in need of a place of refuge and the coastal State’s interest in protecting its coastline. They do not address the saving of persons at sea, as this humanitarian task is now covered by other instruments. Prepared in the form of a checklist for masters and salvors, on the one hand, and coastal State authorities on the other, the Guidelines provide a framework for risk 55  Ireland: ACT Shipping (OTE) Ltd. v. Minister for the Marine, Ireland and the AttorneyGeneral (The MV Toledo), [1995] 2 Irish Law Reports Monthly 30. 56  The Netherlands: Long Lin (Raad van State (The Netherlands), 10 April 1995, m/v Long Lin, Schip en schade, 1995, 391, no. 95. See van Hooydonk’s commentary, note 2 at 90–93. 57  Morrison, note 2 at 127–165. 58  Maritime Assistance Services, IMO Assembly Resolution A.950, Adopted on 5 December 2003, IMO Doc. A. 23/Res.950, 26 February 2004. 59  IMO Refuge Guidelines, note 3.

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assessment and communication of information to assist decision-making. Two situations are foreseen: the first is where the vessel needs external assistance without the need to evacuate the crew and the second when the vessel is in a state of actual distress and the crew is evacuated. Although the Guidelines have not been adopted as a mandatory code, and therefore do not establish a legal obligation to provide refuge or a right to refuse refuge, they establish an expectation of responsible albeit discretionary decision-making. They may be seen as a standard of due diligence in decision-making and, as this author has commented elsewhere “. . . the coastal state still owes duties towards other states. If the coastal state does not appear as having exercised due diligence in preventing damage or loss arising from its actions, it could open itself to potential international claims by neighbouring coastal states and the flag state. In that scenario, it is conceivable that non-compliance with the Guidelines may constitute additional evidentiary weight against a state that acts in a wrongful manner and thereby causes loss or damage to other states.”60 The third instrument was an MSC Circular setting out the Guidelines on the Control of Ships in an Emergency, 2007 (IMO Emergency Guidelines) aimed at Member States, shipmasters, companies, salvors and others engaged in a maritime emergency.61 These Guidelines complement the IMO MAS Resolution and Refuge Guidelines. They are aimed at providing a “framework of authority” in an emergency situation where safety of life is not involved and to be used together with the IMO Refuge Guidelines. The IMO Emergency Guidelines make provision for situations where more than one coastal State may be involved and thus requiring coordination between them.62 Concurrently with the IMO initiatives, a CMI International Working Group developed a new draft instrument which was approved by the organization’s conference in Athens in 2008 and submitted to the Legal Committee in 2009.63 The exercise was pursued despite an earlier decision of the IMO Legal Committee in 2005 stating that there was no need for a new convention.64 60  Chircop, note 2, at 37–38; van Hooydonk, note 2 at 175–176. 61  Guidelines on the Control of Ships in an Emergency, IMO Doc. MSC.1/Circ.1251, 19 October 2007. 62  Ibid., 5.3. 63  CMI Instrument, note 1. 64  “The Committee agreed that at this point in time, there was no need to draft a convention dedicated to places of refuge. It noted that the more urgent priority would be to implement all the existing liability and compensation conventions. A more informed decision as to whether a convention was necessary might best be taken in light of the experience acquired through their implementation.” Legal Committee, Report of the 90th Session, IMO Doc. LEG 90/15, 9 May 2005, pp. 47–49.

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The CMI had played a key role in the development of the Salvage Convention which produced a framework that balanced the interests of actors in salvage scenarios. Anticipating that provision of refuge to enable completion of salvage activities was likely to remain an issue, the CMI formulated an instrument with the intent to codify and further develop the central tenet of the refuge custom, i.e., provision of refuge by a coastal State, by creating a reverse burden, premised on the presumption that the coastal State had a legal obligation to provide a place of refuge and that the denial of the request had to be made on reasonable grounds. Various options of possible text for the central obligation were proposed and additional provisions were included concerning immunity from liability for the coastal State, possible liability towards third States, reasonable conduct, insurance guarantees, plans to accommodate vessels and identification of competent authority for decision-making.65 By undertaking this exercise, to the mind of this author the CMI effectively not only attempted to capture contemporary understanding of the custom but also to further develop the rules of the custom. In pursuing this approach, the CMI played a role not unlike the International Law Commission with regard to its functions for progressive development and codification of international law.66 An important difference is that the CMI performed this task within its larger mandate to promote uniformity in international maritime law and perhaps with the hope that the draft instrument might be of assistance to the IMO should the Organization revisit the issue in the future. The Legal Committee’s decision not to pursue the matter was premised on various factors, in particular the divided opinion on the central issue of codifying the central obligation of the refuge custom. Given the sensitivity of the matter and divisions among IMO Member States and the general feeling at the time of Legal Committee deliberations that there was sufficient conventional law to address the various issues at stake (e.g., civil liability conventions), the codification of the custom could have removed the inherent flexibility of the customary norm and possibly changed its scope of application. The Legal 65  CMI Instrument, note 1. 66   Statute of the International Law Commission, United Nations General Assembly Resolution 174 (II), 21 November 1947, Art. 1(1) states that the “Commission shall have for its object the promotion of the progressive development of international law and its codification”. The preparation of conventions is explained as progressive development of draft conventions on subjects not yet regulated by international law or where the law has not developed sufficiently in the practice of States (art. 15). Codification is defined as “the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine.” Ibid.

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Committee wisely left the door ajar by expressing preference for a broader subscription to the civil liability conventions and permitting the passage of time to determine whether the various IMO guidelines provided sufficient guidance for coastal State decision-making and related procedures. If subsequent practice would demonstrate that wider subscription to the civil liability conventions and general application of the Refuge Guidelines was not sufficient, the Legal Committee might not have much option but to revisit the matter. In this scenario, even while complemented by the liability conventions and IMO guidelines, the custom might be losing the strength of opinio needed to guide state practice and to justify a revisit by the Legal Committee. The IMO Refuge Guidelines appear to be in use in many jurisdictions, suggesting that States find them useful in the performance of their customary duty. The Guidelines have likely created the expectation on coastal States to employ a procedural standard for decision-making, although not necessarily resulting in the actual provision of refuge. Australia, Canada and United States expressly recognized or embraced the Guidelines in national planning for places of refuge for ships.67 In the case of Canada and the United States this endorsement of the Guidelines is particularly significant because both jurisdictions have longstanding judicial practice on the subject. Unlike Canada and the United States, the EU approach was to legislate the provision of places of refuge and referentially incorporated the IMO Refuge Guidelines within a larger approach to maritime safety regulation in European waters, known as the “Erika Packages”.68 A first directive prescribed the designation of places of refuge in all coastal State waters.69 Following expressions of concern with the text of the original directive and the political difficulties it entailed, the provision concerned was amended in a subsequent directive to expressly incorporate the IMO Guidelines.70 Separately from EU legislative initiatives, places of 67  Australia: Places of Refuge Guidelines—National Plan for Maritime Environmental Emergencies, available at https://www.amsa.gov.au/environment/legislation-andprevention/place-of-refuge-guidelines/; Canada: National Places of Refuge Contingency Plan (PORCP), TP 14707 available at ; United States: US Coast Guard Places of Refuge Policy, available at . 68  Morrison, note 2 at 271–276. 69  Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 Establishing a Community Vessel Traffic Monitoring and Information System and Repealing Council Directive 93/75/EEC, OJ L 208 (5 August 2002), 10–27. 70  Directive 2009/17/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system, OJ L 131/101.

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refuge were also considered in regional marine environmental regimes in the Baltic,71 North Sea72 and Mediterranean73 suggesting that the custom persists and that the management framework developed by the IMO assists in guiding State conduct. However, it appears that the Refuge Guidelines have not always been applied and salvors faced a quandary when the nearest place of safety was denied to them by the coastal State. There continues to be a disconnect between the private law framework of the Salvage Convention and the public law expectations of the custom, as evidenced by the denials of refuge in the recent incidents of the “MV Stolt Valor,”74 “MSC Flaminia”75 and “Maritime Maisie”.76 In the case of the “Maritime Maisie” it was reported that major maritime and coastal States Japan and South Korea did not follow the IMO Guidelines.77 These exceptionally difficult situations juxtapose competing norms and upset the carefully crafted balance of these principles in the law of the sea and maritime law. 71   Baltic Marine Environment Protection Commission (HELCOM), Mutual Plan for Places of Refuge in the Baltic Sea Area, 20 May 2010, available at . HELCOM has anticipated situations where a place of refuge in a neighboring jurisdiction could be more appropriate and would require cooperation among the States concerned, including regarding the sharing of costs. HELCOM Recommendation 31E/5, 20 May 2010, amended by HELCOM 35–2014, 6 March 2014, available at . 72  Morrison, note 2 at 278 describes provision of places of refuge in the Counter Pollution Manual of the Bonn Agreement for Cooperation in Dealing with Pollution of the North Sea, 9 June 1969, 704 UNTS 3. The provision aims at promoting a consistent approach to the handling of requests for refuge. 73  Protocol Concerning Cooperation in Preventing Pollution from Ships and in Cases of Emergency, Combating Pollution of the Mediterranean Sea, Art. 26, available at . 74  In 2012 the Liberian-flagged chemical tanker “MV Stolt Valor” caught fire in the Persian/ Arabian Gulf. The vessel was eventually given refuge in Bahrain after it met strict conditions. World Maritime News 27 July 2012, available at . 75  In 2012 the container vessel “MSC Flaminia” was on fire and suffered an explosion in the middle of the Atlantic. Three crew members died. The salvors made same day requests to Belgium, France, The Netherlands and United Kingdom. Other requests were made to Germany, Ireland, Portugal and Spain. Refuge was eventually provided by Germany. Lloyd’s List 26 November 2012. 76  The eleven-year old 44,404 dwt chemical tanker “Maritime Maisie” was under tow for three months after suffer damage and fire in a collision in the Sea of Japan in December 2013. It was in constant danger of breaking up before it was provided with a place of refuge. Japan and South Korea refused refuge, but eventually South Korea provided refuge in March 2014. Tradewinds 28 March 2014, available at . 77  Ibid.

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The Role of UNCLOS In most cases the request for a place of refuge is uncontentious and administered in a perfunctory manner by coastal States. In difficult distress cases which juxtapose the refuge custom against national interests or other expectations, decision-makers can be expected to look for options for decision-making and claim normative justification. This dilemma may arise even with the best of intentions and employment of good procedures in accordance with the IMO Refuge Guidelines. Difficult distress situations produce situations of normative conflict. In addition to the humanitarian norm, state practice is influenced by other norms of international law, in particular special powers of the coastal State on the high seas when a casualty threatens its coastal interests, rights in zones of national jurisdiction, the duty to protect the marine environment and duties towards neighboring States. Self-defense is entrenched in the United Nations Charter as an “inherent right” where an armed attack is concerned.78 In the law of the sea the application of the principle includes the taking of emergency measures to protect a broad range of interests, such as coastal communities, economy and environment.79 In customary law and UNCLOS coastal States have jurisdictions and powers to enable them assert and protect their “inherent” national interests along their coastal frontage and adjacent waters. In UNCLOS they enjoy sovereignty in the 12-nautical mile territorial sea and, among other, jurisdiction to protect and preserve the marine environment in the EEZ. However, these powers are not absolute and their exercise may be subject to specified tests. The right to exercise environmental jurisdiction is accompanied by the duty to protect and preserve the marine environment.80 Coastal States are expected to exercise their rights and duties in good faith and refrain from abuse of rights.81 They have to pay due regard to the rights of other States.82 All States have duties towards other States, including while exercising 78  Charter of the United Nations, San Francisco, 24 February 1945, 1 UNTS XVI, Art. 51. 79  For example as reflected in the Intervention Convention, note 51 Art. 1, stating the right of a State to take measures as may be necessary to eliminate grave and imminent dangers to their coastline or related interests from pollution or threat of oil pollution. Threatened related interests include: “(a) maritime coastal, port or estuarine activities, including fisheries activities, constituting an essential means of livelihood of the persons concerned; (b) tourist attractions of the area concerned; (c) the health of the coastal population and the well-being of the area concerned, including conservation of living marine resources and of wildlife.” Ibid., Art. 2(4) 80  UNCLOS Art. 192. 81  UNCLOS Art. 300. 82  E.g., with regard to establishment of sea lanes and traffic separation schemes (art. 22), exercising legislative duties with respect to innocent passage (art. 24), exercise of criminal

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freedoms of the high seas with due regard to the interests of other States (including coastal States)83 and their ships have a duty to respect the laws and regulations concerning innocent passage, transit passage and archipelagic sea lanes passage.84 Thus, while treaty norms support the exercise of coastal State jurisdiction, there are counterpart norm-based expectations regarding the exercise of rights by other States and ships registered under their flags. The less contentious normative conflict that may arise is where the humanitarian principle competes for application with a national interest of the coastal State. The saving of human life is such a fundamental duty in international humanitarian law that a coastal State can be expected to exercise best endeavors in search and rescue. In the “Prestige” case, Spain never questioned its humanitarian duty to save the crew of the vessel, even though its position was consistently and continuously against granting refuge to the vessel. In fact it rescued the master and crew while recognizing no further duty towards the stricken vessel. The earlier Irish court case of the MV Toledo supports the proposition that there is a duty to provide humanitarian assistance, which may consist of saving the crew, and following the discharge of which there is no further duty towards the ship and cargo, and that coastal State authorities may take whatever action is needed to protect its interests.85 The Court noted there must be “reasonable grounds”. jurisdiction on board ships in the territorial sea (art. 27(4)), exercise of rights in the EEZ (56(2)) and pollution prevention, reduction and control of pollution in ice-covered areas (art. 234). 83  UNCLOS Art. 87(2). 84  UNCLOS Arts. 21(2), 42(4) and 52(1). 85  Per Barr, J: “In summary, therefore, I am satisfied that the right of a foreign vessel in serious distress to the benefit of a safe haven in the waters of an adjacent state is primarily humanitarian rather than economic. It is not an absolute right. If safety of life is not a factor, then there is a widely recognised practice among maritime states to have proper regard to their own interests and those of their citizens in deciding whether or not to accede to any such request. Where in a particular case, such as the ‘Toledo’, there was no risk to life as the crew had abandoned the casualty before a request for refuge had been made, it seems to me that there can be no doubt that the coastal state, in the interest of defending its own interests and those of its citizens, may lawfully refuse refuge to such a casualty if there are reasonable grounds for believing that there is a significant risk of substantial harm to the state or its citizens if the casualty is given refuge and that such harm is potentially greater than that which would result if the vessel in distress and/ or her cargo were lost through refusal or shelter in the waters of the coastal state. The abandonment of a ship in distress before refuge is sought is an important ingredient in assessing whether or not the casualty should be granted refuge by the coastal state. There

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While generally complementary to each other, in difficult situations sovereign and jurisdictional rights on the one hand and the duty to protect the marine environment on the other hand may compete with each other, as well as with the refuge custom. When a request for refuge is made by a vessel in distress, it is possible the vessel has structural integrity issues as a result of stress of weather or other incident. The vessel may be carrying a hazardous, dangerous or polluting cargo, in addition to a large quantity of bunkers. The ship might also be an old vessel, but any vessel can suffer incidents at sea. Coastal States will likely weigh their options against rights and responsibilities in general international law, international law of the sea, international maritime law, international environmental law and domestic law. Several norms might be juxtaposed. Their legal options might be further limited by political, economic and social constraints. Both France and Spain denied refuge to the “Erika” and “Prestige” because of their concern with the threat posed to coastal interests and the marine environment. In the case of the MV Toledo the vessel was scuttled after no place of refuge could be secured.86 Ireland wanted to avoid the risk of a repeat incident of the “Tribulus” which was given refuge and subsequently caused damaging pollution in Bantry Bay. The United Kingdom also refused refuge. These jurisdictions and their courts had to weigh the customary practice of providing refuge to the distressed vessel against the potential risks to their coastal interests and pollution of the marine environment. It is unclear to what extent, if at all, they weighed their LOS Convention duty to protect the marine environment in declining refuge. They effectively resorted to self-help in preference to other norms. The Irish Court in the MV Toledo held that the authorities had no further duty towards the stricken vessel after the crew were rescued, suggesting that the humanitarian principle and jurisdictional rights were the only ones that mattered.87 That court did not consider or give weight to the duty to protect the marine environment. Three years later a New Zealand court held that a domestic port statute did not “override any

are two reasons why that is so; first, the absence of any risk to human life excludes the most compelling reason in support of an application for refuge. Secondly, abandonment of a ship carrying a substantial valuable cargo is patently an act which would be resorted to by an experienced master only in circumstances of major distress, and this in itself is cogent evidence that the casualty is seriously damaged and, therefore, may cause significant harm to the coastal state and/or its citizens.” MV Toledo, note 55 at 48–49. 86  MV Toledo, note 55. 87  MV Toledo, ibid. at 48–49.

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international obligations to provide a port of refuge where the circumstances so require.”88 Such scenarios raise the question regarding how States, in pursuing their national interests, weigh or should weigh multiple concurrently applicable norms in customary and conventional law. One view is that the ordering of sources of international law in Article 38 of the Statute of the International Court of Justice reflected the practice of the Permanent Court of International Justice’s jurisprudence, in effect providing for a treaty to prevail over a customary rule.89 An alternative view considers treaty and custom to have “intrinsic force” and therefore fundamentally constitute equal sources, and at the most in applying Article 38 of the Statute a Court is tasked with sequential, but not hierarchical consideration of sources.90 The author of this chapter is of a similar view as otherwise the relegation of a customary rule to a lower level of importance than a conventional rule would logically, and undesirably, result in different levels of authority for the same institutions as between State Parties and non-Parties to UNCLOS. There is nothing in UNCLOS to suggest that it ousts application of customary law. It would be absurd to conclude that the United States (which holds that much of UNCLOS is customary law)91 is guided by rules, albeit from a customary source, of lesser authority than UNCLOS. Following this line of argument, the refuge custom, as an uncodified norm, cannot be given lower importance than any provision in UNCLOS because customary and treaty norms are fundamentally equal norms and the Convention does not expressly or implicitly abrogate the application of the refuge custom as between State Parties.92 Therefore, if there is hierarchy between the refuge 88  De Nationale Investeringsbank NV v. The Ship Queeny Margreth (1997) 11 Procedure Reports of New Zealand 454. 89  M. Sorenson, cited by M. Bos, A Methodology of International Law (North-Holland, Amsterdam: 1984) at 99. Sorenson’s view is shared by Akehurst although this author observes that the instances of treaty prevailing over custom concerned treaties that were more specific or later in time. He further stated that there must be clear evidence that the treaty in question intended to abrogate the custom. Michael Akehurst, “The Hierarchy of the Sources of International Law,” (1974–75) 47 British Yearbook of International Law 281–285, 275–276. 90  R. Quadri, “Cours general de droit international public,” Recueil des Cours, Académie de Droit International, 1964-II, 344–345. 91  J.L. Malone, “The United States and the Law of the Sea,” (1983–1984) 24 Virginia Journal of International Law 785–815, at 801–810. 92  “Consequently the two sets of rules exist independently of each other, and, with respect, it cannot be said that such customary law has a weaker, or hierarchically lower (or, for that matter, higher) position vis-à-vis the conventional law.” Villiger, note 4 at 161–162.

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custom and other provisions in UNCLOS, it is not to be explained by reference to legal sources, but through some other explanation. Legal doctrine has developed criteria for the interpretation of treaties that are useful to determine hierarchy or exceptions.93 In addition, in considering hierarchy between rules criteria regarding origin, purport and age may prove useful.94 For example, the exceptions created in UNCLOS in favor of vessels in force majeure or distress during innocent passage and transit passage, with the effect that they are exempted from the general rule regarding continuous and expeditious passage.95 The negotiators of UNCLOS saw fit to prioritize the extraordinary right to take preventive measures vis-à-vis casualties over Part XII.96 The exercise of this power is subject to a proportionality and reasonableness test. The measures must be proportionate to the actual or threatened damage and the casualty “may reasonably be expected to result in major harmful consequences.” These caveats suggest that while on the one hand the coastal State enjoys an extraordinary power, its use should be on an exceptional basis and subject to the general fundamental duty to protect and preserve the marine environment. Its exercise is subject to the duty of good faith and doctrine of abuse of rights.97 State of the Custom In summary, the humanitarian duty to provide assistance to vessels and persons in distress at sea continues to survive in international law, despite the stress. The discourse on places of refuge has not diminished the essential humanitarian principle at the heart of the norm, but has affected the scope of measures that may be employed in assisting the distressed vessel after the crew is airlifted to safety and has introduced a standard for decision-making by the coastal State and communications between the distressed vessel and the coastal State. This author takes the view that the coastal State does not have an absolute duty to provide a place of refuge if by doing so, and after saving the crew and others on board, it faces a serious threat to its interests after employing the decision-making standard. In contemporary international law, the coastal State has a basic right to protect its interests in a proportionate 93  E.g.: lex specialis derogat generalis, lex posteriori derogat priori and lex posteriori generalis non derogat priori. These criteria can help determine when a custom ranks ahead of a treaty rule or vice versa. Quadri, note 90 at 339. 94  Bos, note 89 at 96. Bos includes decisions of international organizations as a source. 95  UNCLOS Arts. 18(2) and 39(1)(c). 96  UNCLOS Art. 221. 97  UNCLOS Art. 300.

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and reasonable manner and using due diligence. There is a requirement to employ procedures, undertake a risk assessment process, conduct expert analysis and have an information system in place. Although the refuge custom also concerns the saving of property, the actual saving of property per se is not determinative of a coastal State’s humanitarian duty. A corollary, undecided and more difficult issue in a contemporary context is the extent to which, if at all, a coastal State that unjustifiably denies refuge with the consequence that the loss of the vessel and its cargo causes harm to the marine environment and interests of neighbouring States, is responsible for an international wrong answerable in damages. This is an issue which the CMI Instrument attempted to address.98 Although potential liability is hypothetical and a separate matter from the humanitarian core principle of the custom, it is a potential consequence of irresponsible decision-making. UNCLOS stipulates a duty not to transfer damage or hazards from one area to another, which could be another jurisdiction.99 The CMI Instrument provides novel text on this matter by attempting to pin liability on the unreasonable coastal State.100 The granting of a place of refuge in a contemporary context can be conditional. Conditions and benefits may be explicit and implicit. Explicit conditions may include provision of insurance cover and financial security, specified duration in port, presentation of maritime and other documents on request, restrictions on movement and restrictions on trading. Implicit conditions include good faith and compliance with local law. There may be other conditions imposed prior to entry into a port. For example, when the “MV Kitano”, which had a fire on board while navigating in the Northwest Atlantic requested assistance from Canadian authorities, it was provided with a sheltered location away from habitation to enable the crew to extinguish the fire before entering the port of Halifax.101 Benefits, which tend to be implicit, include humanitarian assistance when needed, acquisition of necessaries and certain exemptions from local requirements, such as customs.

98  CMI Instrument, note 1 Art. 5. 99  UNCLOS Art. 195. 100  C MI Instrument, note 1 Art. 5. The instrument includes provision for reasonable conduct as a defense (Art. 4). 101  Transportation Safety Board of Canada, Marine Investigation Report, Container Fire: Container Vessel Kitano Off Chebucto Head, Nova Scotia, 22 March 2001, Report Number M01M0017, available at .

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Conclusion In the contemporary international law context, the ancient custom of places of refuge for ships no longer operates exclusively within humanitarian law and maritime law. It has a more complex legal habitat. It is a custom that continues to evolve as a result of state practice and in relationship to multilateral conventions. Its normative persistence is evidence of continue need and relevance. While the core of the custom remains uncodified its consequences are frequently recognized as exceptions to general rules in UNCLOS and several instruments of international maritime and environmental law. Accordingly, while the refuge custom is a norm operating in parallel with conventional norms, it has a two-way relationship with those instruments. Today UNCLOS provides the broad legal framework for the balancing of rights between coastal, flag and port States and the consequential exercise of legislative and enforcement jurisdiction. Instruments of international maritime law and marine environmental law, together with uncodified customary law, serve to nourish the exercise of those jurisdictions. The custom grafts a humanitarian law principle into the law of the sea and by doing so creates conditions for the exercise of the coastal State’s maritime jurisdiction in certain situations. At the same time, UNCLOS has regimes which circumscribe the application of the custom in particular settings, such as where the vessel requesting refuge poses a serious threat to the coastal State. In those instances, the rules of coastal State maritime jurisdiction may serve to limit, modify and possibly even deny the application of the custom. There is no indication that the IMO will consider codifying the custom in the near future and therefore the refuge custom can be expected to continue to evolve in response to state practice.

Part 3 Coastal States

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CHAPTER 7

Excessive Coastal State Jurisdiction: Shipboard Armed Security Personnel James Kraska Introduction This chapter focuses on the boundaries of coastal state prescriptive and enforcement jurisdiction over ship-based measures to enhance maritime security, principally the deployment of privately contracted armed security personnel (PCASP) in the territorial sea and the exclusive economic zone (EEZ). The presence of private armed security on board ships in the Western Indian Ocean has produced a precipitous fall in the incidence of maritime piracy, but the increase in the number of ships using PCASP has gained the attention of coastal states, which have moved to regulate and generally restrict the practice. The trend is for coastal states to assert greater jurisdiction over security measures and security personnel on board ships that are either transiting the territorial sea in innocent passage or exercising high seas freedoms in the EEZ. The issue of armed security onboard ships sets up a classic collision between exclusive flag state jurisdiction and coastal state authority. The battle over these contending visions has great implication for vessels safety and security and for the balance of power between flag and coastal state authority in the international law of the sea. The exercise of coastal state jurisdiction over shipboard security in a manner that exceeds its legal competence illustrates the problem of excessive maritime claims. Coastal state efforts to regulate PCASP in ways that go beyond what is permitted in international law produce not only legal injury to the rights of seafarers and flag states, but also encourage ships to operate without private security and thus expose the vessels to greater risk to successful piracy attack. Excessive maritime claims are those that are inconsistent with

* Professor, Stockton Center for the Study of International Law, United States Naval War College.

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c­ ustomary international law or the rules set forth in the United Nations Convention on the Law of the Sea (UNCLOS).1 Since World War II, more than 85 coastal states have asserted maritime claims that are inconsistent with international law.2 Such claims reside within the contours of virtually every type of otherwise legitimate coastal state authority. This chapter, however, focuses on claims to coastal state prescriptive and enforcement jurisdiction over armed shipboard security personnel in the territorial sea and EEZ. Individually, coastal states do not appear pernicious, and may even be reasonable. Collectively, they threaten to upend the architecture of the rule of law and good order at sea that is the bedrock of international stability in the global commons. The problem is exacerbated because coastal state claims must be examined individually against the backdrop of ambiguous provisions of the international law of the sea, many of which are codified in UNCLOS. The Convention reflects “sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge” in the maritime space.3 The rise of private maritime security on board commercial ships has generated a wave of coastal state responses. Unlike a number of excessive coastal state claims that have declined in number in recent decades, such as claims over the territorial sea in excess of 12 nm, excessive coastal state claims to jurisdiction over shipboard security functions of foreign-flagged commercial ships are a relatively new competence claimed by coastal states, and such claims are on the ascent.

Distribution of Authority in the Law of the Sea

Flag states exercise what is essentially plenary authority over vessels that fly their flag. As reflections of flag state sovereignty, ships transit the globe. Just as flag states are imbued with broad prescriptive and enforcement jurisdiction over their ships, coastal states are afforded the right to exercise sovereignty, sovereign rights, or jurisdiction in the ocean adjacent to their coasts. The traditional jurisdictional maritime zones recognized in UNCLOS include: the territorial sea, contiguous zone, continental shelf, and the high seas. The treaty 1  United Nations Convention on the Law of the Sea, Montego Bay Dec. 10, 1982, UN Doc. A/CONF.62/122, 21 ILM 1621–1354 (1982), 1833 UNTS 397 [Hereinafter UNCLOS]. 2  J.A. Roach and R.W. Smith Excessive Maritime Claims 3rd (Brill, Boston: 2012) 17–18. 3  S.D. Krasner “Structural Causes and Regime Consequences: Regimes as Intervening Variables” (1982) 36 International Organization 185.

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also established new maritime zones: the EEZ, archipelagic waters and the deep seabed. Each zone is governed by a legal regime that carefully balances the equities of flag states and coastal states. These formulae reflect a deliberate distribution and balance of freedoms and rights and corresponding duties and obligations among coastal states, flag states, and port states. States’ party to UNCLOS have a legal commitment to comply with these formulae, most of which have entered into customary international law and therefore are binding on all states. Coastal states, by nature, occupy a strong position over littoral seas and superjacent airspace relative to the interests of other users of the sea. Port states enjoy broad authority over ships that voluntarily enter into their ports, roadsteads, or harbor works, although port state authority is not unlimited and accommodates exceptions, such as force majeure. While flag states enjoy virtually plenary authority over vessels that fly their flag, it is difficult to envision how they easily can exceed their jurisdiction. One example: flag states might purport to authorize ships flying their flag to conduct activities inconsistent with the navigational regimes in the treaty, such as purposefully acting in a manner that is not compatible with innocent passage. Even so, the injury is to one coastal state and occurs at a single instance, but the rights of other states are unaffected. Coastal states, on the other hand, undermine the rights of all nations to use the global commons if they prevent vessels from any flag state to use the oceans freely. While flag states and port states may exceed jurisdiction set forth in UNCLOS, the most sweeping and egregious claims of excessive jurisdiction are made by coastal states. This experience is a result of the spatial, cultural, and nationalist inclinations of governments and people to broaden their sphere of influence and security. Generally, carriage of PCASP, firearms and security-related equipment is subject to flag state legislation and policy.4 International guidelines state that ships carrying firearms and PCASP should comply with “applicable national laws relating to the procurement, carriage including export and import licensing, storage, use and disposal of firearms and security related equipment.”5 This rule, however, tends to beg the question, as flag states, coastal states, and port 4  Revised Interim Recommendations for Flag States Regarding the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area, MSC.1/Circ. 1406/Rev.1, Sept. 16, 2011, Annex, 2. 5  Int’l Org. for Standardization Publicly Available Specification (ISO/PAS) 28007, Ships and Marine Technology—Guidelines for Private Maritime Security Companies providing Privately Contracted Armed Security Personnel (PCASP) on Board Ships, 2012–12–15, 5.2.1(a) (ISO/PAS 28007:2012(E)), 4.2.4(b)(3).

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states have adopted a kaleidoscope of inconsistent national legislations and policies, which sometimes differ as much from one part of a state to another as they do among nations.6 Exclusive Flag State Jurisdiction The point of departure for analysis of excessive coastal state claims begins with an appreciation of the rules governing flag states. The relationship between a state and the ships that fly its flag is set forth in UNCLOS. Ships may sail under the flag of only one state.7 In principle, the flag state has exclusive jurisdiction over ships that fly its flag.8 The master of the ship retains, at all times “ultimate responsibility for the safe navigation and overall command of the vessel.”9 International guidelines also stipulate that the “Master remains in command and is the overriding authority on board” the ship.10 Exclusive flag state jurisdiction and the classic doctrine of freedom of the seas are in pari materia; they are so closely associated that they must be construed with reference to each other. The doctrine of in pari materia promotes uniformity and predictability in the law. The purpose of recognition of flag state jurisdiction as an adjunct to the principle of freedom of the seas is to avoid chaos at sea that would be caused by competing jurisdictional claims over ships. Ships of all nations sail on the high seas under the jurisdiction of their flag state, and therefore are free from the exercise of jurisdiction by other states. The general rule of free seas prevails, subject to a handful of caveats. In its 1956 draft articles, for example, the International Law Commission stated that 6   IMO Doc. MSC.1/Circ. 1405/Rev. 2, May 25, 2012, 1.2 (The absence of applicable regulation and industry self-regulation coupled with complex legal requirements governing the legitimate transport, carriage and use of firearms gives cause for concern). See also Revised Interim Recommendations for Port and Coastal States Regarding the Use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area, IMO Doc. MSC.1/Circ. 1408/Rev. 1, May 25, 2012. 7   UNCLOS Article 92(1). 8   Ibid. 9    Baltic and International Maritime Council (BIMCO), Standard Contract for the Employment of Security Guards on Vessels (GUARDCON) (2012). BIMCO is the world’s largest shipping industry association. The master’s authority is defined in SOLAS XI-2 Reg. 8(1), which states: “The master shall not be constrained by the Company, the charterer or any other person from taking or executing any decision which, in the professional judgment of the master, is necessary to maintain the safety and security of the ship. This includes denial of access to persons (except those identified as duly authorized by a Contracting Government) or their effects or refusal to load cargo, including containers or other closed cargo transport unit.” See also Annex I, European Union Regulation No. 725/2004 (EC), OJ 2004 L129/6. 10  ISO/PAS 28007, 5.2.1(a).

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“Ships shall sail under the flag of one State only and, save in exceptional circumstances . . . shall be subject to its jurisdiction on the high seas.”11 Along with the “perfect equality and entire independence” of states, all nations have an “equal right to uninterrupted use of the unappropriated parts of the ocean for their navigation.”12 In 1817, for example, the Lord Stowell of the English Admiralty court held that the exercise of jurisdiction over a ship flying the flag of another state was permitted only in case of naval warfare: In places where no local authority exists, where the subjects of all States meet upon a footing of entire equality and independence, no one State, or any of its subjects, has a right to assume or exercise authority over the subjects of another. No nation can exercise a right of visitation and search upon the common and unappropriated parts of the sea save only on the belligerent claim.13 Similarly, during World War II, the concept of free seas assumed a philosophical and existential importance that was greater than the sum of its parts. President Roosevelt explained to the United States: “. . . all freedom—meaning freedom to live . . . depends on freedom of the seas. All of American history— North, Central, and South American history—has been inevitably tied up with those words, ‘freedom of the seas.’ ”14 Since 1799 . . . when our infant Navy made the West Indies and the Caribbean and the Gulf of Mexico safe for American ships; since 1804 and 1805 when we made all peaceful commerce safe from the depredations of the Barbary pirates; since the War of 1812, which was fought for the preservation of sailors’ rights; since 1867, when our sea power made it possible for the Mexicans to expel the French Army of Louis Napoleon, we have striven and fought in defense of freedom of the seas—for our 11  Report of the International Law Commission covering the work of its eighth session (A/3159), Article 30, Commentary, para(1), reprinted in II 1956 Yearbook of the International Law Commission 253, 260 (1957). 12  The Rights of Nations (Resolution of the American Institute of International Law), 1 The World Court 427, 428 (August 1915). 13  Judgment delivered by the Judge of the High Court of Admiralty in the case of the French Ship Le Louis, December 15, 1817, reprinted in 76 Journals of the House of Commons, Great Britain House of Commons, Sess. 1821 at pp. 730–31 (1821). 14  Franklin Delano Roosevelt, Proclaiming National Emergency, May 27, 1941, R.D. Buhite, D.W. Levy, (eds.), FDR’s Fireside Chats 174, 180 (University of Oklahoma Press, Norman: 1992).

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own shipping, for the commerce of our sister republics, for the right of all nations to use the highways of world trade—and for our own safety.15 Exclusive flag state jurisdiction is tempered by recent and growing recognition that port states may exercise a great degree of jurisdiction over vessels as a condition of port entry, the greatest exception being that port states may not exercise jurisdiction over sovereign immune vessels—even in internal waters.16 Port states, however, base their authority on condition of port entry. Coastal states, on the other hand, have fairly limited authority over vessels transiting offshore that are not bound for their port. In such case, coastal states may exercise jurisdiction over events on board the ship that have an impact on the territory, and the coastal state has a legal right to insist that ships sail in innocent passage while in the territorial sea. It is sometimes difficult to determine where to draw the line, however, between activities on the ship that purely concern the vessel and the flag state, and those activities that implicate coastal state safety or security. The use of armed security on board vessels in innocent passage is at the forefront of this debate. Coastal State Jurisdiction States generally seek to maximize their jurisdiction or authority over offshore areas in order broaden their political standing among neighboring states and distant water nations, bolster national security, promote economic prosperity, ensure the resilience of their cultural geography and sense of tribal or ethnic space, or enhance their authority to conserve living and non-living resources and preserve the natural marine environment. Coastal states operationalize these choices or preferences through efforts to expand their sovereignty, sovereign rights, and jurisdiction into the adjacent ocean. Generally, these efforts extrapolate from the governing principle of oceans law—la terre domine la mer—“the land dominates the sea.” The International Court of Justice, for example, has held “It is the land which confers upon the coastal State a right to the waters off its coasts.”17

15  Ibid. 16  See International Decision: “ARA Libertad” (Argentina v. Ghana). ITLOS Case No. 20, Provisional Measures, December 15, 2012, 107 American Journal of International Law 404 (Apr. 2013). 17  Anglo-Norwegian Fisheries Judgment, ICJ Rep. 1951, 133. See also North Sea Continental Shelf Judgment, ICJ Rep. 1969, 31, 43, 51, 95–96. The 1909 Norway v. Sweden Grisbadarna Maritime Frontier Award, 4 American Journal of International Law 186, 226 (1910), determined that “the maritime territory is essentially an appurtenance of a land territory.”

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Greater coastal state jurisdiction provides states situated along the coast with a greater sense of control over the world around them. In other words, in international relations, the phenomenon of excessive coastal state jurisdiction is a function of the security dilemma. The areas offshore offer a sense of political and cultural extension to strengthen national political identity, achieve greater strategic depth and maneuver space against potential foes, as well as harvest the promise of economic benefits, such as fisheries, and oil and gas. Thus, coastal states may assert legal claims to areas offshore in order to internalize entitlements, rights, or privileges in regard to the global commons as against the community of nations. Being just another manifestation of the security dilemma, however, means that coastal state action intended to heighten its security or buttress its economic or political position often leads other states to respond in kind, producing tension that can lead to conflict.18 Before adoption of UNCLOS in 1982, states held widely divergent views on horizontal and vertical offshore jurisdiction of coastal states. The Geneva Conventions on the law of the sea that were adopted in 1958, for example, did not defuse disputes over the breadth of the territorial sea or the appropriate extent of coastal state jurisdiction over fisheries.19 These disagreements lingered, and in the ensuing years ignited clashes between coastal states and maritime states over fishing20 and naval operations21 in littoral waters. After 18  R. Jervis “Cooperation under the Security Dilemma” (1978) 30 World Politics 167–174 and R. Jervis Perception and Misperception in International Politics (Princeton University Press, Princeton: 1976) 66–75. 19  See Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 516 UNTS 206; Convention on the High Seas, Apr. 29, 1958, 450 UNTS 82; Convention on Fishing and Conservation of the Living Resources of the High Seas, Apr. 29, 1958, 559 UNTS 285; and, Convention on the Continental Shelf, Apr. 29, 1958, 499 UNTS 312. 20  Historically, the most prominent fisheries disputes were the so-called “Cod Wars” in the North Atlantic and the “Tuna Wars” in the Eastern Pacific. See B. Mitchell, “Politics, Fish, and International Resource Management: The British-Icelandic Cod War”, 66 Geographical Review, 127, 128 (April 1976) (1952, 1958 and 1972 extension of Icelandic fisheries jurisdiction resulted in conflict with German and British fishermen), V. Ingimundarson, “A Western Cold War: The Crisis in Iceland’s Relations with Britain, the United States, and NATO”, 1971–74, 14 Diplomacy & Statecraft 94 (December 2003) and D.C. Loring, “The United States-Peruvian Fisheries Disputes”, 23 Stanford Law Review 391 (1970–71), Welles, U.S.-Ecuador tuna Dispute, Christian Science Monitor, Mar. 13, 1975, at p. 6, cols. 5–6, Hagen, Latin American-U.S. Fishing Rights Controversy, 1972 Hearings on Fishing Rights & U.S. Latin American Relations before the Subcomm. on Inter-American Affairs of the House Committee on Foreign Affairs, 92d Cong., 2d sess. 39–129 (App 3–4) (1972), and T. Meron, “The Fishermen’s Protective Act”, 69 American Journal of International Law 290 (1975). 21  G.H. Aldrich “Questions of International Law Raised by the Seizure of the USS Pueblo” 63 American Society for International Law Proceedings 2 (1969) and R.J. Hanyok “Skunks,

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UNCLOS was adopted in 1982, clearer boundaries on coastal state jurisdiction emerged. Furthermore, as that treaty has gained the status, at least in most respects, of customary international law, it established a global template for coastal state jurisdiction.22 The cardinal principle of oceans governance is that sovereignty inures to the coastal state within the territorial sea, and the international community enjoys an easement for innocent passage therein, whereas beyond the territorial sea the formula is reversed and the international community retains plenary rights in the oceans, and the coastal state is limited to only a handful of resource-related rights. This grand bargain drove UNCLOS to the status of the “constitution” for the world’s oceans—a talisman of sorts for global oceans law and policy, as well as the point of departure to address conflicts at sea.23 Since UNCLOS entered into force in 1994 it has become “the legal framework within which all activities in the oceans and seas must be carried out.”24 Territorial “sovereignty” involves “the exclusive right to display the activities of a state. This right has as a corollary duty: the obligation to protect within the territory the rights of other states, in particular their right to integrity and inviolability in peace and war, together with the rights [that] each state may claim for its nationals in foreign territory.”25 “Jurisdiction,” on the other hand, refers to the competence conferred on coastal states by treaty or customary international law.26 For example, in the law of the sea, coastal states enjoy sovereignty Bogies, Silent Hounds, and the Flying Fish: The Gulf of Tonkin Mystery 2–4 August 1964” (2000/2001) 19/20 Cryptologic Quarterly. 22  Malta-Libya Continental Shelf case (1985) ICJ Rep. 15 (EEZ has become customary international law). The United States, as a non-party to UNCLOS, has been particularly insistent that its terms reflect customary international law. See Statement on U.S. Oceans Policy, March 10, 1983, I Public Papers of the Presidents: Ronald Reagan 1983, at 378–379, 22 ILM 464; 77 American Journal of International Law 619 (1983); Department of State Bulletin, June 1983, at 70–71 and Union of Soviet Socialist Republics-United States: Joint Statement with attached Uniform Interpretation of Rules of International Law Governing Innocent Passage, Jackson Hole, Wyoming, Sept. 23, 1989, 28 ILM 1444 (1989) (Soviet Union and United States agree UNCLOS is part of customary international law). 23  “A Constitution for the Oceans”, Statement by Tommy T. B. Koh, United Nations Convention on the Law of the Sea 1982: A Commentary vol. I 11–16 (Myron H. Nordquist, ed.) (Dodrecht: Martinus Nijhoff, 1985). 24  UN Doc. A/68/PV.63, Oceans and the Law of the Sea, December 9, 2013. 25  Island of Palmas Case (Netherlands v. United States), Arbitral Award of 4 April 1928, at 8–9, reprinted in 2 RIAA (1949), 829, 838. See also, Ph.C. Jessup, “The Palmas Island Arbitration”, 22 American Journal of International Law 735–752 (Oct., 1928) and R. Wolfrum (ed.), XI The Max Planck Encyclopedia of Public International Law 2d ed. 2013, 366–391, 26  B.A. Garner (eds) Black’s Law Dictionary 9th (2009) 927.

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over a 12 nm territorial sea, including the airspace above it. Coastal states also may exercise sovereign rights and jurisdiction within an EEZ. Coastal state authority may be described as either “horizontal” or “vertical” in nature. “Horizontal” claims relate to the geographic or spatial area over which the coastal state exercises some type of jurisdiction, whereas “vertical” claims describe the nature of the rule, its normative force in international law, and the competence of the coastal state to implement or enforce such provisions in accordance with principles of customary international law and the international law of the sea. To further complicate matters, coastal states often mix excessive horizontal and vertical claims of prescriptive and enforcement jurisdiction, and buttress them with a rich tapestry of rationale based in history, culture, science and cartography, national security, environmental protection, economics, politics, and even psychology.27 There exist a number of articles on the subject of excessive maritime claims,28 as well as studies that capture U.S. diplomatic responses to such claims,29 and analysis of their geo-strategic implications.30 In order to avoid overlap with those fine works, or going over ground well tilled, this chapter focuses on a rather recent problem with excessive coastal state jurisdiction—carriage of firearms in the territorial sea and the EEZ.

27   K. Booth, “Naval Strategy and the Spread of Psycho-legal Boundaries at Sea”, 38 International Journal 373, 375(1983) and L. Alexander, “The Ocean Enclosure Movement: Inventory and Prospect”, 20 San Diego Law Review 561 (1983). 28  See E.J. Molenaar Coastal State Jurisdiction over Vessel-Source Pollution (The Hague: Kluwer Law International, 1998), E. Franckx Coastal State Jurisdiction with Respect to Marine Pollution—Some Recent Developments and Changes 10 International Journal of Marine and Coastal Law 253 (1999), E. Franckx, “The 200-mile Limit: Between Creeping Jurisdiction and Creeping Common Heritage?”, 48 German Yearbook of International Law 117 (2005), A. Bardin, “Coastal State’s Jurisdiction over Foreign Vessels”, 14 Pace International Law Review 27 (Spring, 2002), R. Pedrozo, “Encroachment on Navigational Freedoms”, 84 International Law Studies (U.S. Naval War College 2008), R. Pedrozo, “Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone”, 9 Chinese Journal of International Law 9 (March 2010) and R. Pedrozo, Responding to Ms. Zhang’s Talking Points, 10 Chinese Journal of Internatiuonal Law 207 (March 2011), J. Kraska, “Sovereignty at Sea”, 51 Survival 13 (June–July 2009). 29  Roach and Smith, note 2. 30  J. Kraska Maritime Power and Law of the Sea (Oxford University Press, Oxford: 2011).

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Armed Security Aboard Ships in the Territorial Sea

The International Maritime Bureau reports that in 2006, there were 20 incidents of piracy in the Somali Basin and Gulf of Aden; that figure jumped to 44 in 2007, 111 in 2008, and 194 in 2009 and 192 in 2010. During this period, the international community responded by establishing three major counterpiracy naval task forces in the region—one operating on behalf of the European Union, another sent by NATO, and the third reporting to the commander of the U.S. Fifth Fleet in Bahrain. Despite coordinated patrols by warships from twodozen countries, Somali piracy persisted, spreading from the Somali Basin and the Gulf of Aden to the Red Sea and Arabian Sea, and virtually to the shores of India. The international commercial shipping industry implemented a series of Best Management Practices (BMP) against piracy, which includes recommendations such as running concertina wire along the lifelines of the ship to deter pirates from boarding. Yet, Somali pirates kept coming: nothing seemed to work. In 2011, there were 237 pirate attacks in the Red Sea, Somali Basin, and Gulf of Aden. Then, in 2012, the number of attacks in these areas plummeted to 75. In 2013, remarkably, there were only 13 incidents—and Somali pirates did not successfully seize a single ship, although two vessels were held for less than a day before they were freed by naval action. By January 2014, the Chief of the India Navy reported that there had not been a successful piracy attack within 450 nm of India in over two years.31 This precipitous decline is almost entirely attributable to PCASP. The Fourth edition of the shipping industry Best Management Practices or BMP4 states that the carriage of firearms and PCASP are a matter for ship operators to determine, in accordance with their voyage risk assessment and approval of the flag state. On the other hand, coastal states appear to embellish their jurisdiction over vessels in innocent passage to regulate the carriage of firearms. Coastal State Jurisdiction over Ships in Innocent Passage Based on the proximity of a shoreline, coastal states are entitled to exercise sovereignty over a 12 nm territorial sea.32 The original theory of the territorial sea was that the area was akin to property, assimilated with coastal state land territory.33 31  S. Das Mohapatra “Our Enthusiasm is 100 per cent, the Industry has to Respond: Navy Chief on Self-Reliance”, 2014 January SP’s Naval Forces. 32  UNCLOS, Article 2. 33  K. Hakapää, “Innocent Passage” 2012 Max Planck Encyclopedia of Public International Law. See also D.P. O’Connell “The Juridical Nature of the Territorial Sea” 1971 45 British Yearbook of International Law 303–83.

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The traditional right of innocent passage enjoyed by ships of other nations in the territorial sea is preserved in UNCLOS.34 This right extends to commercial vessels, warships, and submarines that operate on the surface and show their flag. Coastal states may adopt laws and regulations relating to innocent passage through their territorial sea in respect to safety of navigation and regulation of maritime traffic; protection of navigational aids and facilities; protection of cables and pipelines; conservation of living resources; prevention of infringement of fisheries laws and regulations; marine scientific research and hydrographic surveys; and prevention of infringement of customs, fiscal, immigration or sanitary laws and regulations.35 Coastal states also have competence to adopt and enforce laws for the preservation of the marine environment and reduction and control of pollution.36 Excessive coastal state jurisdiction over the transit of commercial ships in the territorial sea typically manifests as interference with the regime of innocent passage due to overzealous efforts to regulate vessel source pollution.37 Protection of the marine environment has become the major maritime focus of numerous states. The United States, for example, develops its national oceans policy at the Council on Environmental Quality in the Executive Office of the President.38 The environment terms of UNCLOS are rather vague, and therefore invite coastal states to act beyond their competence. In cases where there are “clear grounds” for believing that a vessel in the territorial sea has violated national laws that reflect international standards for prevention, reduction, or control of vessel-source pollution, the coastal state may conduct a physical inspection of the ship.39 If evidence so warrants, the coastal state may institute proceedings, including detention of the vessel, but subject to the provisions of prompt release upon posting of a reasonable bond or other surety.40 In such case, the text of UNCLOS is unclear about the scope of physical inspection that may be conducted. Coastal states also may require nuclear-powered ships and ships carrying nuclear or other inherently

34  UNCLOS Article 17. 35  UNCLOS Article 21. 36  UNCLOS Article 21. 37  K. Hakapää, E.J. Molenaar “Innocent passage—Past and Present”, 23 Marine Policy March 1999, 131–145 and D.R. Rothwell “Coastal State Sovereignty and Innocent Passage: The Voyage of the Lusitania Expresso”, 16 Marine Policy September 1992, 427. 38  See President Barack Obama, Executive Order 13547—“Stewardship of the Ocean, Our Coasts, and the Great Lakes”, July 19, 2010. 39  UNCLOS Article 220(2). 40  UNCLOS Article 220(2).

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dangerous or noxious substances or materials to use certain designated sea lanes and traffic separation schemes, as well as carry documents and observe special precautionary measures established by international agreements, but it may not prohibit transits of such ships.41 Such laws and regulations, however, cannot apply to design, construction, manning or equipment of foreign ships unless they are consistent with generally accepted international rules and standards, and these rules typically are adopted by the IMO. Therefore, prohibition of transits based on the type of propulsion system or cargo on board is inconsistent with international law. Moreover, coastal state laws and regulations may not impose requirements on foreign ships that have the practical effect of denying, impairing or hampering the right of innocent passage.42 States exceed their authority over the territorial sea and purport to impose conditions on the right of innocent passage that are inconsistent with the regime set forth in UNCLOS. These restrictions vary among states, and may apply to either civil or naval vessels, or both, and include requirement for prior notice and/or consent before warships may enter the territorial sea; limits on the number or type of foreign warships that may be present in the territorial sea; and prohibition on transits of certain types of ships, or by nuclearpowered ships, or ships carrying hazardous or dangerous cargoes. Nearly one quarter of states parties to UNCLOS purport to condition innocent passage of warships on prior notice and/or consent.43 China, for example, requires foreign warships and other government vessels operated for non-commercial purposes to obtain prior “permission” before engaging in innocent passage through the territorial sea.44 Articles 17 and 19 of UNCLOS, however, provide that ships of all nations, including warships, enjoy the right of innocent passage. Any requirement for prior permission is inconsistent with Article 30 of UNCLOS, which allows the coastal state to require a warship to leave its territorial sea immediately if the warship is engaged in activities that are inconsistent with innocent passage or if it fails to comply with coastal state laws enacted pursuant to international standards.45 41  UNCLOS Articles 22 and 23. 42  UNCLOS Article 24. 43  Maritime Claims Reference Manual (MCRM), DOD 2005.1-M, June 2008, available at . 44  Law of the Territorial Sea and the Contiguous Zone of 25 Feb. 1992, Art. 6, available at . 45  UNCLOS Article 21. Efforts during the UNCLOS negotiations to include a prior notification and/or authorization requirement in Article 21 failed to achieve a majority vote. Near the end of the negotiations, proponents of a requirement for prior notice or consent agreed not to try to amend Article 21. S.N. Nandan and S. Rosenne (eds) United Nations

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There are a number of nations that also claim the authority to regulate security-related matters in the contiguous zone. These countries include: Bangladesh, Burma (Myanmar), Cambodia, China, Egypt, Haiti, India, Iran, Pakistan, Saudi Arabia, Sri Lanka, Sudan, Syria, United Arab Emirates, Venezuela, Vietnam and Yemen.46 Coastal State Practice The international law of the sea is silent on whether ships may carry weapons or use force in self-defense while in innocent passage. After a significant increase in the number of ship operators employing PCASP in the High Risk Area of the Western Indian Ocean, the member states of the International Maritime Organization met in London to develop guidance to companies and recommendations to flag states. In May 2012, the member states of the International Maritime Organization released supplementary guidance to the private maritime security companies that employ private security personnel on board ships in the High Risk Area.47 The 2012 guidance states that PMSC “should acknowledge the possible existence of legal responsibilities” promulgated by flag states, the nations where the PMSC are registered, and countries through which PCASP may transit.48 In Convention on the Law of the Sea 1982: A Commentary Vol. II (Martinus Nijhoff, Dordrecht: 1993) 195–199. This point was confirmed shortly before the conclusion of the Conference by Ambassador Tommy Koh, the Conference President, when he stated, “the Convention is quite clear on this point. Warships do, like other ships, have a right of innocent passage through the territorial sea, and there is no need for warships to acquire the prior consent or even notification of the coastal State.” J. Kraska and R. Pedrozo, International Maritime Security Law (Brill, Boston: 2013) 254. See also B.H. Oxman, “The Regime of Warships Under the United Nations Convention on the Law of the Sea”, 24 Virginia Journal of International Law 809, 854 (1984). 46  Department of Defense, Maritime Claims Reference Manual, DOD 2005.1-M, June 2008. 47  IMO Doc. MSC.1/Circ.1443, Interim Guidance to Private Maritime Security Companies Providing Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area,” May 25, 2012, Annex. Circular 1443 supplements and should be read in conjunction with earlier guidance, including, interim guidance set out in IMO Doc. MSC.1/Circ.1405/ Rev.2 on Revised interim guidance to shipowners, ship operators and shipmasters on the use of privately contracted armed security personnel on board ships in the High Risk Area; IMO Doc. MSC.1/Circ.1406/Rev.2 on Revised interim recommendations for flag States regarding the use of privately contracted armed security personnel on board ships in the High Risk Area; and IMO Doc. MSC.1/Circ.1408/Rev.1 on Revised interim recommendations for port and coastal States regarding the use of privately contracted armed security personnel on board ships in the High Risk Area. 48  IMO Doc. MSC.1/Circ. 1443, Annex, 1.3.

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particular, PMSC should “have awareness and understanding” of national laws concerning the transport, carriage, storage, and use of firearms, and therefore, have “access to competent maritime legal advice on a 24/7 basis. . . .”49 This chapter suggests that carriage of firearms by PCASP is consistent with innocent passage so long as the weapons and personnel are used solely for the purpose of self-defense against threats to the ship while in transit. Coastal states may not assert criminal jurisdiction over ships in innocent passage except, inter alia, if the actions on the ship constitute a crime, the consequences of which “extend to the coastal State,” or “if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea.”50 Presupposing that even if simple carriage of firearms constitutes a crime in the coastal state, mere innocent passage with armed security forces on board a ship does not create a condition that “extends to” the coastal state or “disturbs the peace” or good order in the territorial sea. This view, however, appears to be a minority perspective. In 2011, an IMO circular contained a questionnaire on port and coastal state requirements related to PCASP on board ships transiting near the state or entering port.51 In particular, the IMO’s Facilitation Committee (FAL) recommended that coastal states bordering the Indian Ocean, Arabian Sea, Gulf of Aden and Red Sea, distribute information on their national legislation, procedures and best practices relating to the carriage, embarkation and disembarkation of firearms and security-related equipment through their territory and, as appropriate, rules concerning the movement of privately contracted armed security personnel:52 The use of privately contracted armed security personnel on board ships may lead to an escalation of violence. The carriage of such personnel and their weapons is subject to flag State legislation and policies and is a matter for flag States to determine in consultation with ship owners, companies, and ship operators, if and under which conditions this will be allowed. Flag States should take into account the possible escalation of

49  Ibid., 3.3.1 and 3.3.2. 50  UNCLOS Article 27. 51  IMO Doc. MSC/MSPWG 1/4/3, Development of Guidance on the Use of Privately Contracted Security Personnel on Board Ships, Sept. 12, 2011, Annex, IMO Doc. MSC-FAL/ Circ.[2], Draft Questionnaire on Information on Port and Coastal State Requirements related to PCASP on Board Ships. 52  Ibid., Annex, 5.

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violence, which could result from carriage of armed personnel on board merchant ships, when deciding on its policy.53 Similarly, IMO Resolution 1044(27) urged coastal states to: “decide on their policy on the embarkation, disembarkation and carriage of privately contracted armed security personnel and of the firearms, ammunition and security-related equipment [author’s italics].”54 The 90th Session of the IMO’s Maritime Safety Committee also concluded that “ships entering the territorial sea and/or ports of a State are subject to that State’s legislation.”55 This blanket assertion, however, goes too far. While port states indeed may set conditions for entry, UNCLOS protects the rights of foreign-flagged states to exercise their right of innocent passage in the territorial sea. In such case, the coastal state may not regulate carriage of weapons during transit in innocent passage. In order to determine the direction of coastal state practice on the regulation of the carriage of firearms by foreign commercial ships during innocent passage, the Facilitation Committee (FAL) of the IMO solicited information from a range of states. The responses to the FAL Questionnaire illustrate divergent practices among states on the issue of regulation of firearms in innocent passage. States were asked to report: What requirements, if any, do you have in place for ships carrying firearms and/or the security-related equipment for use by the PCASP or of PCASP when transiting through your territorial seas and/or contiguous zones before arrival in or after departure from your ports, anchorages, roadstead or offshore terminals?56 While every state surveyed had some requirement for providing notification by ships of the presence of defensive armaments to be made upon entry into port or while getting underway from port, there was a mixed set of rules pertaining to innocent passage. Australia was somewhat circumspect in its reply to FAL, stating: 53  IMO Doc. MSC.1/Circ.1333, Recommendation to Governments for preventing and suppressing piracy and armed robbery against ships, June 26, 2009, Annex, para. 7. 54  Ibid., at 8(c)–(d). 55  IMO Doc. MSC 90, Report of the Maritime Safety Committee on its Ninetieth Session May 31, 2012, para. 20.11. 56  IMO Doc. MSC-FAL/Circ.2, Questionnaire on information on port and coastal State requirements related to privately contracted armed security personnel on board ships, Nov. 17, 2011, para. 1.6.

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Obligations (for example, for notification, authorization or storage) may be imposed by a number of Australian Government agencies, including the Australian Customs and Border Protection Service and the Defense Export Control Office. Notification is often required in advance, and should be provided directly to the relevant agency.57 Brazil was more straightforward, and indicated that ships in innocent passage that carry firearms for use by PCASP must alert public authorities before arrival in the territorial sea.58 Likewise, Denmark considers a transit of the territorial sea to be an “import” of armaments under the Weapons and Explosives Act. A license of authorization is required from the Ministry of Justice merely to transit the territorial sea in innocent passage.59 Hong Kong, China has no regulation of firearms aboard ships exercising innocent passage, although vessels entering port must declare the presence of firearms to the Customs and Excise Department 24 hours in advance of arrival. Israel also does not have any requirement for ship reporting of PCASP or the presence of weapons on board a vessel conducting innocent passage. Egypt has rules similar to Denmark. For passage through the Suez Canal, shipping agencies are required only to present a report from the merchant vessel detailing the armaments and ammunition on board, which shall remain inside a locked box under authority of the shipmaster until the vessel is clear of Egyptian territory. The locked box shall be presented to Port Security to be inspected, and then delivered back to the vessel as it departs the port. Failure to declare or present the weapons, even if a ship is exercising innocent passage, may result in criminal prosecution under law no. 394 of 1954.60 France has adopted a more liberal view of the carriage of firearms in innocent passage. Ships transiting French territorial waters are accorded the benefit of Article L.5211–1 of the Transport Code of France, which recognizes the right of innocent passage, provided that “no armed person is visible and that no weapon, individual or collective, is handled or is visible on the exterior of the ship.”61 The ship must keep weapons and ammunition in separate lockers or locked spaces, or in the alternative, hand them over to a government service 57  IMO Doc. MSC-FAL/Circ.2 (Australia), para. 1.6. 58  IMO Doc. MSC-FAL/Circ.2 (Brazil), para. 1.6. 59  IMO Doc. MSC-FAL/Circ.2 (Denmark), para. 1.2 and 1.6. 60  Information on Port and Coastal Requirements Related to Privately Contracted Armed Security Personnel on board ships, Maritime Transport Sector, Government of Egypt, November 1, 2012. 61  IMO Doc. MSC-FAL/Circ.2 (France), para. 1.6.

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for the duration of the transit. The latter option is chargeable at a market cost. Finally, once the ship departs the territorial sea, it must notify French authorities by VHF. India claims that the deployment of armed security guards on merchant ships “change[s] the very paradigm of a merchant ship which is granted a liberty to transit the territorial waters of any state under the concept of ‘innocent passage’.”62 India’s guidelines state in full: Deployment of armed security guards on merchant ships does change the very paradigm of a merchant ship, which is granted a liberty to transit the territorial waters of any state under the concept of “innocent passage.” Further, a merchant ship arriving with weapons on board, in a commercial port of a coastal state, would also invoke concern for customs, police and other security agencies tasked with law enforcement and coastal security. India’s law regulation recognizes that armed security is perhaps the only effective deterrent against maritime piracy. As Somali piracy has pushed eastward into the Arabian Sea, traffic routes have shifted to escape danger, resulting in a “quantum jump” in the number of merchant vessels transiting Indian territorial seas and EEZ.63 All foreign ships visiting Indian ports are required to secure their firearms and ammunition in a locked space prior to arrival in the territorial sea.64 Indian regulations also state that the right of innocent passage cannot be “summarily withdrawn,” so it is imperative that ships are notified about standards for carriage of weapons in the territorial sea, EEZ, and the Indian Search and Rescue Region.65 Transit through any of these areas with armed personnel or ammunition on board requires compliance with the same rules for entry into port: ships must provide the regional coast guard (and the port authority and customs, if applicable), a 96-hour pre-arrival notification for security (PANS) that includes the names, addresses, and details of identification of the security personnel, information on the number and type of weapons (including Make, Model, bore, caliber, serial number etc.), and information on the licenses and registration of the PMSC.66 62  See IMO Doc. MSC-FAL/Circ.2 (India), para. 1.2 and Government of India, Ministry of Shipping, Notification No. vide F. SR‐13020/6/2009‐MG(pt.), August 29, 2011. 63  Ministry of Shipping, Notification No. vide F. SR‐13020/6/2009‐MG(pt.), 1.7. 64  Ibid. 7.5. 65  Ibid. 7.2. 66  Ibid. 7.3, 7.5.3 and 7.2.

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In October 2013, India seized the MV Seaman Guard Ohio, a U.S.-owned, Sierra-Leone-flagged armory ship, and arrested 35 persons on board for “failing to produce papers authorizing the vessel to carry weapons and ammunitions in Indian waters.”67 The ship is owned and operated by U.S. private maritime security company “AdvanFort.”68 The master of the vessel claims he was duped into leaving the EEZ and entering the territorial sea of India when the ship was warned by Indian Coast Guard officials that it was in danger of an impending cyclone.69 India claimed that once inside Indian territory, the ship was no longer protected by the doctrine of freedom of navigation and exclusive flag state jurisdiction under international law. Therefore, having weapons aboard the vessel without proper documents violated Indian law. The ship argued that it may have drifted into the territorial sea due to winds, and that in any case, it should have been treated as a lawful entry force majeure. Mindful that the November 26, 2008 terrorists that struck Mumbai’s financial district entered the country by sea, India fears that floating armories could serve as staging platforms for terrorists from neighboring Pakistan.70 Jordan permits weapons to be carried on board a ship in innocent passage if the voyage through the territorial sea is less than 24 hours in length. If the transit exceeds 24 hours, the ship is required to transfer all weapons and ammunition to the Royal Jordanian Naval Force Base during the period of the transit.71 Liberia is a special case. The country maintains a strict embargo on armaments aboard ships entering Liberian territorial waters pursuant to the total

67  Anti-Piracy Bill to provide strong legal support to Navy’s efforts: Navy Chief, Asian News International, 3 December 2013. The detained vessel had 10 crew members, including two Ukrainians and eight Indians, as well as 25 security guards, of which six were British, 14 Estonian, one Ukrainian and four from India. Id. 68  The company describes itself as: “a global provider of security solutions for commercial shipping on land, sea and air, as well as for government, private port and terminal operations, with over 200 contractors and 100 employees. It was founded in 2009 in Washington, D.C. The company has a certification from the International Maritime Law Enforcement Academy (IMLEA), and is an International Code of Conduct (ICoC) signatory for Pirate Security Providers.” Seehttp://www.advanfort.com/. 69  “MMP protests treatment of Seaman Guard” 35, MarineLog, 25 February 2014. (MMP is the International Organization of Masters, Mates & Pilots. The organization claims that the Seaman Guard personnel are subjected to inhumane conditions in a Chennai prison where they lack appropriate food, bathing facilities, and medical treatment. They have also been denied bail three times by the court. Id. 70  G.V. Bhatnagar, “Unverified armed guards a threat: Navy Chief”, The Hindu, December 4, 2013. 71  IMO Doc. MSC-FAL/Circ.2 (Jordan), ¶ 1.6.

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arms embargo imposed upon the nation by United Nations Security Council resolution 788.72 Mauritius requires that weapons and ammunition be properly stowed under lock while a ship is conducting innocent passage, in accordance with the Ship Security Plan. If the vessel is boarded by Mauritius Police Forces, all armed security guards are to be mustered unarmed at a designated location on the ship.73 Nigeria, on the other hand, does not permit PMSCs in its territorial sea.74 Spain does not impose any special requirement on vessels in innocent passage that carry armed security personnel, weapons, or ammunition.75 Spanish authorities, however, require reports of the use of firearms while ships are in the territorial sea. The United Kingdom does not prohibit the carriage of firearms by foreign ships conducting innocent passage. The United Kingdom Guidance states that when ships are carrying firearms while in foreign territorial seas, “it is essential that the laws of [the] coastal State are respected and complied with.”76 Although the United Kingdom references the right of innocent passage in accordance with UNCLOS in cases in which passage is “not prejudicial to the peace, good order or security” of the coastal state, it also acknowledges that any “exercise or practice with weapons” during innocent passage may not be consistent with the regime. Guidance by the Government of the United Kingdom states that armed guards should only be used on board a ship while transiting in the High Risk Area, although they may be embarked and disembarked at the “soonest safe, convenient, and lawful opportunity” outside the HRA.77 Therefore, shipping companies are directed to “take legal advice on the legal requirements” of coastal states whose territorial seas they transit, “even if firearms on board are security stored and comply with any requirements put in place by that State.”78 The United Kingdom responded to the inquiry from FAL by stating: It is considered that the U.K. is not within or neighboring a Piracy High Threat Area. The presence of firearms on board shipping transiting U.K. 72  IMO Doc. MSC-FAL/Circ.2 (Liberia), para. 1.6 and S/RES/788 (1992) (Nov. 19, 1992), para. 8. 73  IMO Doc. MSC-FAL/Circ.2 (Mauritius), para. 1.6. 74  Oceans Beyond Piracy, Maritime Security/PMSC Regulation in Nigeria. 75  IMO Doc. MSC-FAL/Circ.2 (Spain), para. 1.6. 76  UK Guidance, para. 6.8. 77  UK Guidance, para. 6.7. 78  UK Guidance, para. 6.9.

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waters should be considered a highly exceptional circumstance. In those exceptional circumstances whereby firearms cannot be removed from the vessel prior to arrival in U.K. waters, all firearms and ammunition should be secured and stowed in a safe condition under direct control of the Master. All such firearms and ammunition will be subject to declaration upon arrival in U.K. Port or, in the case of boarding by U.K. enforcement authorities in territorial waters, will be declared to those proper agencies. It should be noted that U.K. flag vessels are further subject to the full provisions of the U.K. Firearms Acts 1968–97.79 Finally, the United States entirely dodged the question posed by FAL, reporting only that “[T]his authority falls within the responsibility of the U.S. Coast Guard, the Department of State, the Department of Homeland Security, Coast Guard [sic], Customs and Border Protection, Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives, and Other U.S. Government Agencies.”80 Singapore also appears to outlaw possession of armaments or ammunition for ships that are in innocent passage. Under Singapore Legislation on Arms Offenses, unlawful possession of firearms or ammunition carries a mandatory prison term of five years, and punishment by caning of “not less than 6 strokes.”81 Use or attempted use of firearms carries punishment of death.82 The Legislation on Arms Offenses applies within the Republic of Singapore “and all territorial waters adjacent thereto.”83

Armed Security Aboard Ships in the EEZ

With the expansion of the territorial sea to 12 nm, and the simultaneous creation of the EEZ, UNCLOS broadened and solidified the sovereignty, sovereign rights, and jurisdiction of coastal states over offshore areas. About 40 percent of the world’s oceans were brought under some type of coastal state control. Excessive coastal state maritime claims over the EEZ have proved especially

79  IMO Doc. MSC-FAL/Circ.2 (United Kingdom), para. 1.6. 80  IMO Doc. MSC-FAL/Circ.2 (United States), para. 1.6. 81  Sec. 3, Singapore Legislation on Arms Offences, Arms Offences Act (Chapter 14), Act 61 of 1973, Revised Edition 2008 (31 March 2008). 82  Ibid., Sec. 4. 83  Interpretation Act (Chapter 1), Act 10 of 1965, Revised Edition 2002 (31 December 2002).

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vexing.84 This new zone was created for the sole purpose of granting coastal states greater control over the resources of the seabed and water column adjacent to their coasts out to 200 nm.85 Although the EEZ was carved from the high seas in order to provide coastal states certain enumerated offshore sovereign rights and jurisdiction, the frontier of coastal state competence over the EEZ is routinely tested. While the normative strength of the EEZ has been relatively effective in constraining excessive spatial or geographical EEZ claims, coastal states increasingly assert excessive regulatory competence or jurisdiction in the zone. This section focuses on how the latter type of claim is asserted and enforced in the EEZ.86 Coastal states have been particularly active in asserting and enforcing regulatory jurisdiction over vessel-source pollution as well as military and security activities in a manner that exceeds the scope of their competence in UNCLOS. The tendency to want to regulate military activities in the EEZ has naturally gravitated toward an expression of broad security interests in the zone, which now includes attempts to regulate the carriage of weapons on board ships operating in the zone. Coastal State Jurisdiction over Ships Exercising High Seas Freedoms The EZZ is sui generis zone over which the coastal state may exercise sovereign rights and jurisdiction relating principally to natural resources.87 Coastal states enjoy broad subject matter88 or prescriptive jurisdiction in the EEZ, as well as a more limited level of enforcement jurisdiction. At the same time, high seas freedoms and other internationally lawful uses of the EEZ are preserved for all states.89 Article 56 provides that coastal states have sovereign rights for the purpose of exploring, exploiting, conserving and managing the natural resources of the zone and with regard to other activities for the economic exploitation and exploration of the zone. The term “sovereign rights” was deliberately chosen to make a clear distinction between coastal state rights and jurisdiction in the 84  UN Doc. A/68/PV.63, Oceans and the Law of the Sea, 9 December 2013. 85  Nandan & Rosenne, note 45 at 491–821. 86  Those interested in analysis of coastal state jurisdiction claims that are excessive in their geographic reach should refer to the masterpiece on the subject, Roach & Smith, note 2, and the Department of Defense, Maritime Claims Reference Manual (MCRM), DOD 2005.1-M, June 2008, . 87  UNCLOS Articles 55 and 56. 88  Restatement (Third) of the Foreign Relations Law of the United States § 401 & cmt. (1987). 89  UNCLOS Articles 58 and 86 and Nandan & Rosenne, note 45 at 60–71.

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EEZ and coastal state authority in the territorial sea, where coastal states enjoy a much broader and more comprehensive right of “sovereignty.”90 The coastal state also has limited resource-related jurisdiction in the EEZ with regard to the establishment and use of artificial islands, installations and structures, marine scientific research (MSR), and the protection and preservation of the marine environment. The use of the term “MSR” was deliberate in order to distinguish MSR from other types of marine data collection that are not resource-related, such as hydrographic surveys and military oceanographic surveys.91 For example, “research or survey activities” for ships engaged in innocent passage.92 Article 40 applies a similar restriction to ships engage in transit passage—“marine scientific research and hydrographic survey ships may not carry out any research or survey activities” without prior authorization of the states boarding the strait. The same restrictions apply to ships engaged in archipelagic sea lanes passage (Article 54) or ships transiting archipelagic waters in innocent passage (Article 52). Article 56 and Part XIII of the Convention, on the other hand, only refer to MSR, and not to other “survey” activities.93 Although Article 56 of UNCLOS grants the coastal state jurisdiction in the EEZ over the protection and preservation of the marine environment, it also provides that any laws or regulations adopted by the coastal state for the prevention, reduction and control of pollution form vessels must conform and give effect to “generally accepted international rules and standards established through the competent international organization or general diplomatic conference.”94 The coastal state has a greater authority to act against foreign-flagged ships where there is “clear objective evidence” that a ship “navigating” in the territorial sea or EEZ discharges pollution “causing major environmental damage or threat of major damage to the coastline or related interests of the coastal state or to any resources of its territorial sea or EEZ. . . .”95 This provision also contains the problem of chronological scope. Furthermore, if the coastal state may act “provided that the evidence so warrants.” Certainly, the flag state, the vessel, and the coastal state are likely to disagree on the weight of the evidence, yet the objective test of the evidence in UNCLOS seems to tilt in practice toward 90  UNCLOS Article 2; see also Nandan & Rosenne, note 45 at 531–544. 91  UNCLOS Articles 19(2)(j), 40, 54, 87(1)(f) and Part XIII. 92  UNCLOS Article 19(2)(j). 93  UNCLOS Article 87(1)(f) also only refers to scientific research. 94  UNCLOS Article 211(5). 95  Ibid., Article 220(6).

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the coastal state to make the determination.96 In such case and armed with evidence, the coastal state may “institute proceedings, including detention of the vessel, in accordance with its laws.”97 Coastal states have jurisdiction in the EEZ with regard to “protection and preservation of the marine environment.”98 All states shall adopt laws and regulations to reduce pollution in the marine environment from land-based sources,99 activities on the seabed in areas within and beyond national jurisdiction,100 pollution by dumping,101 vessel-source pollution,102 and pollution from the atmosphere.103 This broad prescriptive mandate requires that states adopt internationally accepted standards, such as the International Convention for the Prevention of Pollution from Ships (MARPOL), the Safety of Life at Sea Convention (SOLAS), the International Convention on Standards of Training, Certification and Watchkeeping (STCW) and the International Convention on Oil Pollution Preparedness, Response, and Cooperation (OPRC). Generally, flag states and port states have a stronger hand than coastal states in enforcement of these international environmental standards.104 In the territorial sea or EEZ, coastal states may undertake physical inspection in cases where there are “clear grounds” for believing that a violation of national laws that reflect international standards has occurred, and that are “resulting in a substantial discharge causing or threatening significant pollution of the marine environment.”105 This test is as vague as the checklist that applies to ships “navigating” in the territorial sea. In particular, the temporal or chronological elements are unclear because of the “ing” verbs—may the coastal state act only if the violation is currently or actively resulting or causing or threatening pollution, or may it act much later, such as after the ship already has departed the EEZ and the threat is no longer unfolding? In either case, the authority of the coastal state to conduct a physical inspection is qualified in that it is done “if the vessel has refused to give information or if the information supplied by the vessel is manifestly at variance with the evident factual situation and if the circumstances of the case justify such 96  Ibid., Article 220(6). 97  Ibid., Article 220(6). 98  Ibid., Article 56(1)(b)(iii). 99  Ibid., Articles 207 and 213. 100  Ibid., Articles 208–209 and 214–215. 101  Ibid., Articles 210 and 216. 102  Ibid., Article 211. 103  Ibid., Article 212. 104  Ibid., Articles 217–218. 105  Ibid., Article 220(5).

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inspection.” This provision along introduces three more decision points for the coastal state: (1) has the ship refused to provide information?; (2) is the information inconsistent with evident facts?; and (3) do the circumstances justify an inspection? Given the subjective nature of the test, reasonable interpretations that are in conflict may be applied in good faith. Coastal State Practice India has extended jurisdiction over armed security on commercial ship into the EEZ. The country is concerned that there are some 18 floating armories operating on the high seas of the India Ocean, and these craft possess about 7,000 weapons. India requires ships to report to the Indian Navy and Indian Coast Guard any incident in which PCASP use force against pirates or suspected pirates in the EEZ.106 Several high-profile incidents have in recent years sensitized India to the risks posed by under-regulated PMSCs operating in the vicinity of the shoreline. On February 15, 2012, for example, two Italian Marines that served as a Vessel Protection Detachment on board the oil tanker Enrica Lexie, shot and killed two fishermen off the coast of India—apparently mistaking them for pirates.107 Eighteen months later, on October 12, 2013, the Sierra Leone-flagged vessel Seaman Guard Ohio was intercepted by the Indian Coast Guard about 15 nm off the coast of Tuticorin, also known as Thoothukudi.108 The ship had a crew of ten, plus 25 security guards from a variety of states.109 The ship is managed by U.S. security firm AdvanFort to serve as a platform for PCASP between commercial vessel transits through the high risk area of the Indian Ocean. Thirty-five assault rifles and 5,680 rounds of ammunition were seized 106  Questionnaire on Information on Port and Coastal State Requirements Related to Privately Contracted Armed Security Personnel on Board Ship, Government of India submission to IMO pursuant to IMO Doc. MSC-FAL.1/Circ.2, Questionnaire on Information on Port and Coastal State Requirements Related to Privately Contracted Armed Security Personnel on Board Ship, 22 September 2011, available at . 107  See “Italian Vessel Erred in Judgment” 2012 February 18 The Hindu and T. Ramavarman & Ajay Kanth “Fishermen killing: Two Italian naval guards taken into custody” 2012 February 19 The Times of India. The ship was lured back into port by officials, who detained the Marines. The incident and detention of active duty troops from Italy ignited an international row that simmers through the end of 2014. 108  Anti-Piracy Bill to provide strong legal support to Navy’s efforts: Navy Chief, Asian News International, 3 December 2013. 109  There were six British, 14 Estonians, one Ukranian and four Indian security guards on the ship. IMO Doc. MSC 94/14/2, 19 August 2014, 2, 3.1 and 3.2.

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by police.110 The ship was arrested and the crew was detained because the ship failed to produce documentation that authorized it to carry weapons or ammunition in “Indian waters.”111 All 35 men were imprisoned in India; bail application was denied on January 7, 2014, but eventually all but two of the men were released on bail in March 2014. On 11 July 2014, the India High Court dropped all charges related to the weapons offenses.112 India has a large, exposed coastline, and has experienced terrorism from the sea, so the very existence of floating armories in proximity to the shore is unsettling. On 12 March 1991, for example a huge cache of weapons and explosives landed at points in Gujarat and Maharashtra, on the west coast of India. The armaments were used in explosions in Bombay that killed 257 persons and injured another 700 individuals. Similarly, on 26 November 2011, 10 Lashkar-eTaiba (LeT) terrorists attacked Mumbai in an assault that came via the sea. The terrorists used a vessel named Al Hussaini, which they employed to capture the Indian-flagged fishing vessel Kuber before infiltrating the shore of Mumbai. In that attack, 175 people were murdered and 291 persons injured.113 India has proposed at IMO that both private maritime security contractors and members of the armed forces providing security or protection on board merchant ships transiting in a coastal state’s EEZ be required to report “details” of their presence on the ship to coastal state authorities.114 The Maritime Safety Committee, however, did not accept India’s proposal.115 The Chief of Naval Staff stated that there are 140 PMSC operating in the Indian Ocean, and “scores of ships” used as floating armories.116 India reiterated its concern, at the subsequent August 2014 meeting of the Maritime Safety Committee, stating: India is of the firm view that a coastal State has the inherent right to protect its marine environment up to the limits of its EEZ and to that extent, it becomes imperative that within the larger canvas of maritime 110  I MO Doc. MSC 94/14/2, 19 August 2014, 3.1 and 3.2. 111  Anti-Piracy Bill to provide strong legal support to Navy’s efforts: Navy Chief, Asian News International, 3 December 2013. 112  India drops arms charges against British crew of MV Seaman Guard Ohio, BBC News (U.K.), 11 July 2014. See also AdvanFort Media Release, “Charges against MV Seaman Guard Ohio Crew & Guards Quashed by Indian HC”, 11 July 2014. 113  I MO Doc. MSC 94/14/2, 19 August 2014, paras. 3.1 and 3.2. See also IMO Doc. MSC 94/14/2, 19 August 2014, para. 7. 114  I MO Doc. MSC 90/20/16, 27 March 2012. 115  I MO Doc. MSC 90/28, 31 May 2012, para. 20.7 116  Anti-Piracy Bill to provide strong legal support to Navy’s efforts: Navy Chief, Asian News International, 3 December 2013.

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domain awareness, the details of privately contracted armed guards on ships that sail through the EEZ of a State and the details of the ‘floating armories’ that transit or operate within such waters, are mandatorily shared with the concerned coastal State authorities so that coastal States are fully informed about merchant ships that carry weapons on board in their waters.117 Conclusion Most flag states have had a rather muted response to excessive coastal state jurisdiction generally. There have been no protests by other states, for example, about India’s expansive approach to the issue. India appears to be successful in asserting jurisdiction over PCASP and private maritime security firms. Because firearms can raise such emotion and genuine security concerns, there are no discernible efforts by other states to challenge the assertion of coastal state jurisdiction. At the same time, shipowners and ship operators have resigned to accept the rules. The London law firm Holman Fenwick Willan, LLP, noted in a publication to its clients in the shipping industry that the Seaman Guard Ohio incident indicates that when security teams and floating armories operate in a coastal state’s territorial sea, and even EEZ, “there is no guarantee that a coastal State will not take steps to try and close [it down].”118 As more security firms enter the market, there is a greater chance that another company will bump against laws that exceed coastal state authority set forth in UNCLOS. The risk of criminalization of PMSCs should concern the private security industry, but the trend is unlikely to change the trajectory of the law. The Security Association of the Maritime Industry (SAMI), a group that represents maritime security firms and security interests among international shipping industry, expressed dismay at the “worrying trend” among some governments to criminalize maritime security operatives.119 The maritime security industry is in a dynamic state, with increased competition driving costs down 30 percent,

117  I MO Doc. MSC 94/14/2, 19 August 2014, para. 8. 118  S. Buckley and W. Maclachlan, Holman Fenwick Willan, LLP, India Bulletin, (March 2014), p. 4. 119  “SAMI Slams Criminalisation of Maritime Security Operatives”, March 31, 2014 available at .

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which has made profit margins very tight.120 The additional risk of criminal law and civil law exposure in coastal states will complicate operations and raise costs even further. The benefits of shipboard security are great, however, so tighter regulation is unlikely to compel the shipping industry to turn away from PMSCs. The costs and complexities of adhering to numerous coastal state requirements may drive some of the smaller or less competitive players from the market. Meanwhile, the authority of flag states is diluted and even usurped when they acquiesce to greater coastal state control over ships flying their flag.

120  “Balancing Security Costs & Quality”, November 12, 2014 available at .

CHAPTER 8

The “New” Arctic Passages and the “Old” Law of the Sea Erik Franckx Introduction With respect to the Arctic, the negotiations leading up to the adoption of the United Nations Convention on the Law of the Sea1 were characterized by the drive of the Canadian government to try to obtain international recognition for a unilateral measure adopted in 1970, i.e. the Arctic Waters Pollution Prevention Act.2 Enacted in the wake of the Manhattan crisis of 1969, when the largest American oil tanker in operation had been strengthened with an ice bow and sent through the Canadian archipelago in order to test the feasibility of oil tanker navigation through the Northwest Passage, this avant garde piece of legislation tried to enhance coastal state powers with respect to this fragile environment by enhancing coastal state competence in these icecovered waters. The fact that Canada adjusted its declaration recognizing the * Research professor, President of the Department of International and European Law, and Vice-dean for Internationalization, Faculty of Law and Criminology, Vrije Universiteit Brussel (V.U.B.). He holds teaching assignments at Vesalius College (V.U.B.); Université Libre de Bruxelles; Brussels School of International Studies (University of Kent); Institute of European Studies (V.U.B.); Université Paris-Sorbonne Abou Dhabi, United Arab Emirates; and University of Akureyri, Iceland. He is appointed by Belgium as expert in maritime boundary delimitation to the International Hydrographic Organization (2005–); member of the Permanent Court of Arbitration (2006–); arbitrator under the United Nations Convention on the Law of the Sea (2014–); and member of the national Belgian Commission for the Reform of Private and Public Maritime Law (2012–). The status iuris of this contribution is June 2014. The strong devaluation of the Russian ruble at the end of 2014 and the adoption in November 2014 of the International Code for Ships Operating in Polar Waters, the so-called Polar Code, by the International Maritime Organization, have consequently not been taken into consideration. 1  United Nations Convention on the Law of the Sea, 10 December 1982, United Nations Treaty Series, vol. 1833, 1982, 397–581 available at . Hereinafter UNCLOS. 2  Arctic Waters Pollution Prevention Act 1970, as reprinted in (1970) 9 International Legal Materials 543–552. Hereinafter AWPPA.

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jurisdiction of the International Court of Justice as compulsory at the same time in order to prevent others from challenging the international legal validity of this new kind of coastal state jurisdiction over offshore waters,3 indicates that at that time this country itself had some doubts on whether the AWPPA formed part and parcel of international law as it existed in the late 1960s, early 1970s. This was confirmed by the good number of diplomatic notes Canada received in the aftermath of its enactment, all protesting the legal validity of the AWPPA. Direct negotiations between the three protagonists at that time, namely Canada, the Soviet Union and the United States,4 enabled the introduction in a document, which was later to become the Constitution for the Oceans, of an article that allowed the coastal state in ice-covered areas to exercise enhanced competence over navigation.5 The inclusion of this socalled “Arctic” article in UNCLOS “notwithstanding its geographical scope— limited in reality to the ice-covered polar regions, principally of the Northern 3  Canadian Declaration Concerning the Compulsory Jurisdiction of the International Court of Justice, as reprinted in (1970) 9 International Legal Materials 598–599. Excluded by virtue of point 2 (b) were: “disputes arising out of or concerning jurisdiction or rights claimed or exercised by Canada in respect of . . . the prevention or control of pollution or contamination of the marine environment in marine areas adjacent to the coast of Canada”. The present Canadian declaration no longer contains such a clause (available at ). 4  Anon “Article 234” S. Rosenne and A. Yankov (eds) United Nations Convention on the Law of the Sea 1982: A Commentary Vol. 4 (Martinus Nijhoff, Dordrecht: 1989) 392, 393. Hereinafter 1982 Virginia Commentary. The fact that the three protagonists directly negotiated this article between themselves has been confirmed by American and Canadian authors forming part of their respective official delegations to the Third United Nations Conference on the Law of the Sea (hereinafter UNCLOS III) and writing either at the time of the negotiations, or shortly thereafter. See for example: B.H. Oxman From Cooperation to Conflict: The Soviet Union and the United States at the Third U.N. Conference on the Law of the Sea (Donald L. McKernan Lectures in Marine Affairs, 15 May 1984) (Institute of Marine Studies, University of Washington, Seattle: 1985) 14–15 [treating this issue under the heading “The Arctic”], and A.L.C. de Mestral and L.H.J. Legault, “Multilateral negotiation—Canada and the law of the Sea Conference” (1979) 35 International Journal 47, 67 [calling the issue the “Arctic exception”], respectively. 5  U NCLOS, article 234, which reads: “Coastal States have the right to adopt and enforce nondiscriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.”

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Hemisphere—emphasizes the global character of the whole Convention, which applies to all the seas and oceans of the world.”6 It is therefore somewhat odd to note that some Russian authors claim, in general, that the legal regime of the Arctic is mainly to be found outside that document7 and, more particularly, that the legal regime of navigation in the Arctic can be treated without any reference to article 234.8 This stands in sharp contrast with other Russian authors, who rather state in this respect that “[i]t needs to be stressed in particular that it is precisely on the basis of the provision of article 234 that the Rules of Navigation on the Seaways of the Northern Sea Route, which entered into force in 1991,9 were elaborated and adopted”.10 This view is also substantiated by the Soviet version of the Virginia Commentary, i.e. a five volume treatise covering more than 1.200 pages and written by Soviet and other East bloc academics and practitioners alike, many of which had participated in the UNCLOS III negotiations. When describing article 234, the remark is made that given the particular wording used “[i]t is crystal clear that in this case it concerns the Arctic seas”.11 The same 6   1982 Virginia Commentary, note 4 at 393. 7   A.N. Vylegzhanin “Pravovoi rezhim Arktiki” (The Legal Regime of the Arctic) in A.N. Vylegzhanin (ed) Mezhdunarodnoe pravo [2nd edition] (Iurait, Moskva: 2012) 179, 179– 203. The argument that UNCLOS is not applicable to the Arctic was further developed by Vylegzhanin during the discussions following his intervention, entitled “The Arctic Zone of the Russian Federation and International Law”, at a workshop organized by the K.B. Jebsen Centre for the Law of the Sea of the University of Tromsø in St. Petersburg on 8 October 2013, to which the present author also participated (more details on this conference and summaries of the presentations made are available at ). This inspired the present author when he was invited to speak in a panel on the law of the sea organized at the occasion of the Arctic Circle Assembly later that month to present a paper on 12 October 2013 entitled: “Is the Law of the Sea Applicable to the Arctic?” (more details available at ). 8   Vylegzhanin, note 7 at 189–192. 9   See note 25. 10  A.L. Kolodkin and I.N. Mikhina “Mezhdunarodno-pravovye aspekty sudokhodstva v morskikh prostranstvakh Rossiiskoi Arktiki” (International Legal Issues Concerning Shipping in the Sea Areas of the Russian Arctic) (2002) (issue 3) Transportnoe pravo 2, 4 (own translation). Kolodkin was the first Russian judge to sit on the bench of the International Tribunal for the Law of the Sea (1996–2008). For the opinion of his successor to this post, namely V. Golitsyn, who is at present President of that Tribunal, on this particular issue, see note 85. 11  V.A. Kiselev “Zashchita i sokhranenie morskoi sredi ot zagriazneniia s sudov” (The Protection and Preservation of the Marine Environment from Vessels) in A.P. Movchan

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commentary also qualifies the Russian implementing legislation “On the Economic Zone of the USSR” where a similar12 provision could be found, as an example of a piece of national legislation adopted in accordance with the provisions of UNCLOS contrary to others rather contradicting UNCLOS.13 The authoritative International Law Course in Seven Volumes, of which volume three was published around the same time period, also directly links article 234 to the Arctic Ocean.14 In view of these findings the submission that UNCLOS does not apply to the Arctic seems to constitute some form of hineininterpretierung. If UNCLOS consequently does apply to the Arctic, it needs to be acknowledged that as far as navigation is concerned, that document only contains a single article that specifically applies there.15 In view of the particular history of this provision, it seems that the UNCLOS III negotiations held between 1973 and 1982 were concerned with giving an international imprimatur to something that had already been on the international agenda for some years. Canada had spared no effort indeed to get its AWPPA accepted on the international level.16 But no matter how progressive the codification of article 234 might have been at that time, the negotiators at UNCLOS III could have hardly envisaged the profound changes that were looming behind the horizon. Indeed, global and A. Iankov (eds) Mirovoi okean i mezhdunarodnoe pravo: Zashchita i sokhranenie morskoi sredy Vol. 4 (Nauka, Moskva: 1990) 116, 138 (own translation). In this case the author did not himself participate in the UNCLOS III negotiations, but both editors-in-chief did. 12  Indeed, certain differences had to be noted in this Edict of 11 April 1984. See E. Franckx, “The New U.S.S.R. Legislation on Pollution Prevention in the Exclusive Economic Zone” (1986) 1 (issue 2) International Journal of Estuarine and Coastal Law 155, 163–164. 13  L.V. Skalova “Iskliuchitel’naia ekonomicheskaia zona: Zakonodatel’naia praktika pribrezhnykh gosudarstv v otnoshenii 200-mil’nykh ekonomicheskoi zony” (The Exclusive Economic Zone: Legal Practice of the Coastal States Concerning the 200-mile Economic Zones) in A.P. Movchan and A. Iankov (eds) Mirovoi okean i mezhdunarodnoe pravo: Pravovoi rezhim morskikh pribrezhnykh prostranstv Vol. 2 (Nauka, Moskva: 1987) 124, 138–139. A similar remark concerning participation in UNCLOS III applies as the one made in note 11 in fine. 14  B.M. Klemenko, Territoriia i mezhdunarodnoe pravo (Territory and International Law) in N.A. Ushakov (ed) Kurs mezhdunarodnogo prava: Osnovnye instituty mezhdunarodnogo prava Vol. 3 (Nauka, Moskva: 1990) 5, 7. 15  Article 234 is the only article that specifically deals with ice-covered waters in the entire UNCLOS. 16  According to Canada, article 234 “validated” the AWPPA. See Canada, Legislative Summary (LS-629E), Bill C-3: An Act to Amend the Arctic Waters Pollution Prevention Act, 8 (available at ). Hereinafter Bill C-3. This also helps to explain why Canada does no longer exclude such matter from its optional clause as already mentioned above (note 3).

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warming has caused the Arctic ice not only to retract considerably in surface area, but at the same time scientists have noted that the remaining ice is thinning. If the average ice thickness in the Arctic was about three meters when the present author was writing his PhD in the late 1980s, early 1990,17 at present this average is believed to be less than two meters, i.e. a decrease of more than one meter in 20 years’ time.18 It stands to reason that such significant changes to the ice characteristics in the Arctic have had a direct impact on the feasibility of using the region for navigation. In the past it had primarily been the Soviet Union that had developed, at great expense, yearly navigation along its northern coastline. This was partly related to military considerations, but most certainly also to economic ones as the Northern Sea Route, as the Soviet Union and today Russia prefer to designate the Northeast Passage,19 was the only manner to tap the vast natural resources to be found in that area. Because all major rivers in this unhospitable area empty into the Arctic Ocean, the Northern Sea Route became not only the logical, but also the sole transport route to ship these resources out of the region.20 Today, it is still Russia that is leading the dance as far as the development of navigation in the Arctic is concerned. This has to do with the uneven distribution of ice in the region. Because of the Arctic gyre, most ice is pushed towards the northern islands of the Canadian archipelago. Moreover, if the Northeast Passage mostly covers the vast waters of the Kara, Laptev, East Siberian and 17  E. Franckx Maritime Claims in the Arctic: Canadian and Russian Perspectives (Martinus Nijhoff Publishers, Dordrecht: 1993) 6. 18  R. Kwok and D.A. Rothrock, “Decline in Arctic Sea Ice Thickness from Submarine and ICES at Records: 1958–2008” (2009) 36 (issue 15 (L15501)) Geophysical Research Letters 1–5. Based on submarine records until the year 2000 and satellite data for the period thereafter, these authors calculated that between 1980 and 2008 the Arctic ice thickness declined by 1.75 meters (ibid., 1). 19  Russian authors usually stress the importance of the difference between these two notions, but when trying to explain their distinguishing features the picture often becomes rather hazy. See for instance N.D. Koroleva, V.I. Markov and A.P. Ushakov Pravovoi rezhim sudochodstva v Rossiiskoi Arktike (Legal Regime of Navigation in the Russian Arctic) (Soiuzmorniiproekt, Moscow: 1995) 48–49 and 98–99. Because recent legislative initiatives and state practice, discussed below in the present contribution, seem to shed some light on the question, this particular point will be addressed in some further detail in the conclusions. 20  As duly remarked by a number of early career scholars, only the ports in the Barents Sea, including the White Sea, have railway connections to the southern markets. The ports along the Northern Sea Route by implication do not. A. Buixadé Farré et al., “Commercial Arctic Shipping Through the Northeast Passage: Routes, Resources, Governance, Technology, and Infrastructure” (2014) 37 (issue 4) Polar Geography 298, 313.

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Chukchi Seas with islands in between, certainly, but no such features lying on their northern extremities, the Northwest Passage passes through the constricted waters of the Canadian archipelago where hazards to navigation will still remain present for a much longer period of time even if the present tendency were to persist.21 On the other hand, the Northeast Passage was the first to open up completely in summer time. As predicted, it was Russia that started to take the lead in adapting itself to these new climatological circumstances by overhauling its legal framework dating back to the 1990s, when the Northern Sea Route was almost exclusively destined for national use. Gorbachev, it should be recalled, had suggested in his Murmansk speech of 1 October 198722 to open up the Northern Sea Route under certain conditions, but just like a similar offer made long before in 1967, at the heyday of the Cold War, this 1987 proposal did not make much headway either, this time because Gorbachev’s reign was too short-lived for his offer to bear fruit. This newly elaborated legislative framework became applicable since the shipping season 2013–2014. The timing as a consequence seems right for a first assessment. For all these reasons, the present chapter will focus on the Northeast Passage for it is there that the changes are not only taking place in the legislative field, but are also being applied in practice at present. Now that twenty years have passed since the entry into force of UNCLOS, this moment is ideal for assessing whether article 234 has stood the test of time. This contribution will first look in turn at the past and present legislative frameworks. Before drawing some conclusions, the recent Russian state practice will be highlighted.

The Past23

As indicated before, when transit shipping north of the Eurasian continent linking the Atlantic and the Pacific Ocean started to materialize from 2010 21  Arctic Council Arctic Marine Shipping Assessment 2009 Report (Second Printing) (Arctic Council, sine loco: 2009) 112–114. Hereinafter AMSA Report. The first finding on the Northwest Passage reads: “The Northwest Passage is not expected to become a viable trans-Arctic route through 2020 due to seasonality, ice conditions, a complex archipelago, draft restrictions, chokepoints, lack of adequate charts, insurance limitations and other costs, which diminish the likelihood of regularly scheduled services from the Pacific to the Atlantic” (ibid., 114). 22  Izvestiia, 2 October 1987, p. 1, col. 7. 23  This part is based on E. Franckx “The Legal Regime of Navigation in the Russian Arctic” (2010) 18 Journal of Transnational Law and Policy 327–342 available at , of which the fundamental elements

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onwards,24 the legal framework of the Northern Sea Route proved totally out of touch with the new realities. This rudimentary legal system, which had been worked out in the 1990s, no longer reflected the new ideas of development the government had conceived in view of the changing climatic circumstances. International navigation formed an inherent part of this new vision, either to trade directly with Russian ports or to transit goods from the Atlantic to the Pacific Ocean region. The 1990 legislative system was primarily based on four documents, namely the 1990 Regulations for Navigation on the Seaways of the Northern Sea Route25 and three secondary pieces of legislation,26 namely first, the Guide to Navigating Through the Northern Sea Route,27 second, the Regulations for

are reflected in the AMSA Report, note 21 at 67, to which the present author contributed (ibid., 188). 24  A number of non-Russian flagged vessels had sailed on the Northern Sea Route before, but none of them had used the route for international commercial purposes, i.e. a transit passage without calling on a Russian port en cours de route there. For a more detailed analysis sustaining this particular point, see E. Franckx and L. Boone “New Developments in the Arctic: Protecting the Marine Environment from Increased Shipping” in M.H. Nordquist, J.N. Moore, A.H. Soons and H.-S. Kim (eds.) The Law of the Sea Convention: US Accession and Globalization (Martinus Nijhoff Publishers, Leiden: 2012) 178, 187–192. 25  1990 Regulations for Navigation on the Seaways of the Northern Sea Route, approved on 14 September 1990, (18 June 1991) 29 Izveshcheniia Moreplavateliam [Notices to Mariners], as reprinted in N.D. Koroleva, V.I. Markov and A.P. Ushakov Pravovoi rezhim sudochodstva v Rossiiskoi Arktike (Legal Regime of Navigation in the Russian Arctic) (Soiuzmorniiproekt, Moscow: 1995) 133–139, where besides the Russian text also an English translation is to be found. English translations are also available at or in Franckx, note 17 at 315–318. Hereinafter 1990 Regulations. 26  The Russian texts of these subsidiary pieces of legislation are no longer to be found on the website of the Ministry of Transport of the Russian Federation, Federal Agency for Sea and Inland Water Transport. Their webpage on the Northern Sea Route (available at ) today only refers back to the website of the newly established Administration of the Northern Sea Route (available at ), as discussed in the next section. The latter only publishes the legislative framework applicable at present. 27  1996 Guide to Navigating through the Northern Sea Route, translated in Head Department of Navigation and Oceanography of the Ministry of Defense of the Russian Federation Notice of Mariners 81–84 (13 July 1996). Copy kindly obtained from R. Douglas Brubaker. Hereinafter 1996 Guide to Navigating.

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Icebreaker and Pilot Guiding of Vessels Through the Northern Sea Route,28 and third, the Requirements for the Design, Equipment and Supplies of Vessels Navigating the Northern Sea Route.29 The problem was that the foundation of this legislative framework dated back to the Soviet period, when the Administration of the Northern Sea Route still enjoyed a certain autonomy. The Administration started out in 1932 as an institution with far-reaching powers, including for instance its own hydrographic service. In 1951 it became part of the USSR Ministry of Merchant Marine. Soon after the dissolution of the Soviet Union, however, the Administration, together with its specialized hydrographic service, became a simple part of the Ministry of Transport of the Russian Federation, Federal Agency for Sea and Inland Water Transport as it is called today.30 As will be explained in the next section, it proved ill-adapted to the new conditions created by climate change.

The Present

On 28 July 2012 President Putin signed the Federal Law “On the Introduction of Changes to Certain Legislative Acts of the Russian Federation Related to the Governmental Regulation of Merchant Shipping in the Water Areas of the Northern Sea Route”.31 Instead of an expected new law on the Northern Sea Route, the 2012 Federal Law on the NSR amended three pieces of existing 28  1996 Regulations for Icebreaker and Pilot Guiding of Vessels through the Northern Sea Route, ibid., 84–89. English translation also available at . 29  1996 Requirements for the Design, Equipment and Supplies of Vessels Navigating the Northern Sea Route, 1996 Guide to Navigating, note 27 at 317–323. English translation also available at . 30  Or Rosmorrechflot according to its Russian acronym. For a description of the wide powers granted to the Administration at the time of its establishment, see M.Y. Zinger Osnovnye zakony po krayinemy Severy (Basic Laws for the Extreme North) (Izdetel’stvo glavnogo upravlenii Severnogo morskogo puti, Leningrad: 1935) 14–16 (for a description) and 86–88 (for the legislative framework). For a brief overview of its later evolution, see A.S. Skaridov Morskoe pravo (Law of the Sea) (Iurait, Moskva: 2014) 576–577. 31  Available at . Hereinafter Federal Law on the NSR. For a detailed analysis of the travaux préparatoires of this law, see J.J. Solski, ”New Developments in Russian Regulation of Navigation on the Northern Sea Route” (2013) 4 (issue 1) Arctic Review on Law and Politics 90, 104–115.

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legislation, namely the Federal Law on Natural Monopolies,32 the Federal Law on the Internal Waters, the Territorial Sea and the Contiguous Zone of the Russian Federation,33 and the Merchant Shipping Code of the Russian Federation.34 This law first of all upgraded the status of the Administration of the Northern Sea Route to that of a federal agency. After the disappearance of the Soviet Union from the political map of the world, the maintenance of the mighty fleet of nuclear icebreakers became an unbearable financial burden for the Russian Federation. Around the turn of the century, the financial subsidies from the central state budget were terminated and the company exploiting these icebreakers had to continue its activities on a “khozrachot”-basis, meaning that all economic activities should be self-supporting. Because of the monopoly position occupied by the Federal State Unitary Enterprise “Atomflot”, located in Murmansk, this however resulted in a drastic increase of fees to be paid for the Russian icebreaker assistance, which in turn was required by law. As this system lacked moreover basic transparency, Russian companies with a longterm business plan in the area started to plan major investments themselves in order to acquire their own icebreakers. Such important investments apparently proved more economically viable than having to rely on the goodwill and discretion of Atomflot. If the government wanted to promote an orderly development, as evidenced by the concrete decisions taken to fund necessary infrastructure works of the Northern Sea Route from the state budget,35 it needed to be able to control this uncertain factor, which in the past had been the major stumbling block for Western companies to start making more intensive use of this route. The answer was an upgrade in the status of the Administration of the Northern Sea Route, as it was to be able to decide on the determination of the dues to be paid for services rendered, not only to ensure the safety of navigation and the protection of the marine environment, but also to enhance the attractiveness of this route for foreign as well as national shipping companies. The basic principle incorporated in the Federal Law on the NSR was that the rates needed to correspond with the services actually rendered.36 32  17 August 1995, as later amended. 33  31 July 1998, as later amended. 34  30 April 1999, as later amended. 35  These investments concerned hydrography, icebreaker construction, and search and rescue operations. 36  Federal Law on the NSR, note 31, article 3. In view of a number contradictory court decision rendered in this respect during the period 1997–2010, this constituted an important clarification. Indeed, some courts had stated that fees constituted a means to

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In preparation of the shipping season 2013,37 new Rules of Navigation in the Water Area of the Northern Sea Route were adopted.38 These were much more comprehensive than its 1990 predecessor.39 An essential element from a foreigner’s point of view is certainly the increased transparency of the procedure to be granted access to the Northern Sea Route.40 First of all, a streamlined procedure is provided, with strict deadlines for the Administration of the Northern Sea Route to respond as well as an obligation to indicate the reasons for refusal of a particular permission.41 This flowchart increases transparency as well as accessibility and is further improved by the obligation for the Administration of the Northern Sea Route to host a website where potential clients can easily find all relevant information, with the express obligation to provide an English translation of the 2013 Rules of Navigation.42 In practice, it is to be noted that the whole website is bilingual, Russian-English, with all information in Russian also available in English.43 It now has been specifically provided that icebreakers need to fly the Russian flag.44 When a Swedish class 10 icebreaker, recover operational costs of the Northern Sea Route even if no services had been rendered to a particular vessel, whereas others rather required fees to reflect services rendered. As described in A. Chircop, I.V. Bunik, M.L. McConnell and K. Svendsen, “Course Convergence?: Comparative Perspectives on the Governance of Navigation and Shipping in Canadian and Russian Arctic Waters” (2014) 28 Ocean Yearbook 291, 323–324 and Solski, note 31 at 114. 37  Federal Law on the NSR, note 31, article 4. 38  Approved by Order of the Ministry of Transport of the Russian Federation, 17 January 2013, available at . Hereinafter 2013 Rules of Navigation. 39  This enactment contains at present 67 articles and two annexes, describing the required information on ship and voyage on the one hand, and the detailed criteria of admission of ships to the Northern Sea Route in compliance with the category of their ice strengthening on the other. A previous version of these 2013 Rules of Navigation posted on the website of the Ministry of Transport of the Russian Federation, Federal Agency for Sea and Inland Water Transport, even contained 74 articles. The 1990 Regulations, note 25, only contained 12 articles. 40  See 2013 Rules of Navigation, note 38, Part II, articles 2–5. 41  Ibid., article 11. 42  Ibid., article 66, paragraph 2. 43  This had not always been the case, namely when the Administration of the Northern Sea Route still formed part of Rosmorrechflot, and their website formed an integral part of the website of that federal agency. As far as refusals are concerned, for instance, it must be admitted that these are today only in Russian if the vessel is a Russian flagged vessel, but contain an English translation if they concern foreign flagged vessels. 44  2013 Rules of Navigation, note 38, article 21.

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the Tor Viking II, made the passage in 2010, for instance, a Russian icebreaker accompanied it all along the Northern Sea Route.45 Similarly, when a Western company in 2008 attempted to make use of the Northern Sea Route without reliance on Russian icebreakers or other assistance, since doing so would “wipe out any benefits” in the eyes of the company concerned, no permission was granted.46 In view of the latter example, a major deficiency of these 2013 Rules of Navigation remained that, notwithstanding a whole section on icebreaker assistance,47 the provision on fees only stated the general principles to be applied but remained indecisive as to the exact manner of calculation.48 These general principles were confirmed and further refined by the enactment of the Rules of the Application of Tariffs for the Icebreaker Escorting of Ships in the Water Area of the Northern Sea Route.49 These rules first restate that the tariffs applied depend “on the differentiation by ship’s capacity, ice class of ship, distance of escorting and period of navigation”.50 They further define how to determine the gross tonnage, the ice class, the distance,51 and navigation period.52 Contrary to an indication of icebreaker fees released in 2011 by the Administration of the Northern Sea Route,53 the nature of the 45  A. Rohlen, “Tor Viking—A Late Return from Alaska to Europe—A New Possibility to Link Atlantic and Beaufort Sea Basins for the Offshore Industry?”, Arctic Passion Seminar, Helsinki, 3 March 2011, PowerPoint presentation, slide 22 (on file with the author). 46  Statement by Niels Stolberg, President and CEO of the Beluga Group, as quoted by G. Garfield, “Trailblazer Beluga: A German Player is Planning to Send a Ship Through the Northeast Passage—Without Assistance”, 18 Trade Winds, 5 September 2008 available at . 47  2013 Rules of Navigation, note 38, Part III, articles 21–30. 48  Ibid., article 24, which reads: “In compliance with item 5 of article 5 of the C[ode of] C[ommercial ]N[avigation of the Russian Federation] the fee rate of the icebreaker assistance of ship in the water area of the Northern Sea Route is determined according to the legislation of the Russian Federation about natural monopolies taking into account the capacity of ship, ice class of ship, distance of the escorting and period of navigation.” 49   4 March 2014 available at . Hereinafter 2014 Tariff Rules. 50  Ibid., article 3. See also 2013 Rules of Navigation, note 38, article 24, as reprinted in note 48. 51  2014 Tariff Rules, note 49, article 6. This is determined by the number of zones navigated. The latter is defined as the crossing of the boundary of a zone irrespective of the distance sailed or the time spent in that zone. The Kara, Laptev, East Siberian Sea all are divided in two zones whereas the Chukchi Sea constitutes a single zone. 52  Ibid., article 7, according to which the summer-autumn period runs from 1 July to 30 November, the winter spring period from 1 December until 30 June. 53  The Tariffs for Icebreaker Support Along the Northern Sea Route for the Transport of Goods (in Russian), 7 June 2011, as it appeared on the website of the Ministry of Transport

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goods transported is no longer a criterion to be taken into consideration. But once again, no concrete figures were advanced to calculate the actual fees. The latter were finally revealed the same day in a separate Order about the Approval of Tariffs for the Icebreaker Escorting of Ships Rendered by FSUE “Atomflot” in the Water Area of the Northern Sea Route.54 This Order contains concrete maximum tariffs that can be charged by Atomflot for the icebreaker services rendered. A differentiation is made as to tonnage (smaller vessels more expensive than larger ones), ice class (lower ice class vessels more expensive than higher ones), distance (greater number of zones more expensive than less zones), and navigation period (winter-spring navigation more expensive than summer-autumn navigation). These fees today range between RUB 131,37 (EUR 2,86) per unit of gross tonnage for a ship with a gross tonnage exceeding 100.000 and an Arctic 6–9 classification navigating one zone during the summer-autumn period and RUB 2.234,21 (EUR 48,65) per unit of gross tonnage for a ship with a gross tonnage up to 5.000 and an Arctic 4 classification navigating 6 or 7 zones during the winter-spring period.55 Despite this very detailed breakdown of the costs, it should be noted that this table only concerns the Federal State Unitary Enterprise “Atomflot”. Besides Atomflot, however, five other organizations exist that are allowed to provide icebreaker assistance, namely one more federal state unitary enterprise, i.e. Rosmorport, as well as three joint stock companies, namely the Far Eastern Shipping Company, the Murmansk Shipping Company, and Lukoil Oil Company, and finally an open joint stock company, i.e. the Mining and Metallurgical Company Norilsk Nickel.56

The Practice

According to the lists compiled by the Northern Sea Route Information Office, a body providing practical information on shipping and logistics along the

of the Russian Federation, Federal Agency for Sea and Inland Water Transport at that time (on file with the author). 54  4 March 2014 available at . 55  As indicated at the outset, these monetary conversions reflect rates applicable in June 2014. 56  Information about Organizations which Provide Icebreaker Assistance available at .

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Northern Sea Route,57 the first season under the new Russian legislative system was certainly a success if the number of transits is taken as point of reference. When the figures for the shipping seasons 2011, 2012 and 2013 are compared, namely 41, 46 and 71 respectively,58 it becomes obvious that a marked increase in movements across the Northern Sea Route can be noted. If one moreover compares the 2012 and 2013 figures as far as the transits from the Atlantic to the Pacific Ocean, or vice-versa, are concerned, a similar increase in numbers needs to be acknowledged. With seven vessels in 201259 this number doubled to 14 with respect to the latest shipping season. This apparent positive impact of the new legislative framework on the use made by foreign companies and vessels of the Northern Sea Route as a transit route between the Atlantic and Pacific Ocean needs however to be put somewhat in perspective. First, despite the marked increase in the absolute number of vessels having used the Northern Sea Route in 2013, the cargo transported almost remained the same.60 According to the data compiled by the Northern Sea Route Information Office, the volume of cargo transported in 2012 and 2013 amounted to 1.261.545 and 1.355.897 tons respectively.61 Second, this only represents 0.08 % of the number of ships and 0.14 % of the tonnage that passed through the Suez canal in 2013. The increase in transparency concerning the procedure for obtaining permission to navigate the Northern Sea Route certainly has to be lauded for it provides some certainty in a system that in the past had only too often been characterized by opaque decision-making. The fact that reasons have to be given for a refusal even makes it possible, in theory, for the applicant to add the missing information to his or her file.

57  This office, with headquarters in Kirkenes, Norway, and one additional office in Murmansk, was established in June 2011 as the result of a joint initiative of the Centre for High North Logistics (hereinafter CHNL) and Rosatomflot, with additional support coming from the Norwegian Barents Secretariat. The Northern Sea Route information Office is owned and operated by the CHNL. 58  Available at . 59  E. Franckx “Global Warming and Its Impact on Arctic Navigation: The Northern Sea Route Shipping Season 2012” in A. Weintrit (ed) Marine Navigation and Safety of Sea Transportation: Navigational Problems (CRC Press (Taylor & Francis Group), Leiden: 2013) 173–179. 60  T. Petters “Fifty Percent Increase on Northern Sea Route” BarentsObserver 3 December 2013 available at . 61  Available at .

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However, the case of the Arctic Sunrise throws a somewhat different light on this issue.62 Here we have an international non-governmental organization asking for permission at the beginning of the 2013 navigational season to enter the Kara Sea. A first application was refused for a “lack of information about annual surveys for vessels in the classification certificate for this year”.63 The same day the authorization was refused, Greenpeace submitted the missing information but this was to no avail, as a new application had to be made. That application was again refused on the basis that there was a “lack of information about the ice strengthening of the vessel in the classification certificate”.64 According to Greenpeace this second application did include a classification certificate by Det Norske Veritas testifying that the Arctic Sunrise was a 1A1 icebreaker. A third application finally was rejected on the ground that there was a “lack of information about the ice belt breadth of the vessel”,65 a fact contested by Greenpeace, raising questions moreover as to why this deficiency could not have been mentioned at the time of one of the previous rejections. The Arctic Sunrise subsequently defied Russian national legislation by entering the Kara Sea following a route north of Cape Zhelaniia, the northernmost point of Novaia Zemlia. After having crossed meridian 68°35’ E north of Cape 62  See the letter addressed on 19 August 2013 by D. Simons, Legal Counsel Campaigns & Actions of Greenpeace International to A. Olshevskiy, Head of the Northern Sea Route Administration, available at . 63  Ministry of Transport of the Russian Federation, Federal Agency for Sea and Inland Water Transport, Northern Sea Route Administration, Notification No. 38, 5 July 2013 (based on the application of 14 June 2013), available at . 64  Ministry of Transport of the Russian Federation, Federal Agency for Sea and Inland Water Transport, Northern Sea Route Administration, Notification No. 53, 25 July 2013 (based on the application of 10 July 2013), available at . 65  Ministry of Transport of the Russian Federation, Federal Agency for Sea and Inland Water Transport, Northern Sea Route Administration, Notification No. 67, 16 August 2013 (based on the application of 2 August 2013), available at .

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Zhelaniia, the ship entered the Northern Sea Route without having received permission to do so on 24 August 2013.66 But before they could stage a protest targeting the seismic exploration ship, the Geolog Dmitri Nalivkin, operating in the area, the Russian coast guard came on board without permission, shortly after the Arctic Sunrise had launched inflatable boats and refused to leave the site, threatening to use force, including opening fire, if the ship were to remain in the area.67 They were moreover informed that an exclusion zone of four nautical miles had been declared around the Geolog Dmitri Nalivkin.68 The ship decided to leave the Kara Sea on 26 August 201369 and effectively left the Northern Sea Route on 27 August 2013.70 When the Arctic Sunrise made another application to sail the Northern Sea Route in early September that same year, the Administration of the Northern Sea Route justified its fourth refusal in a row that year on the following grounds: Violation of the Rules of navigation in the water area of the Northern Sea Route, adopted and enforced by the Russian Federation in accordance with the article 234 of the United Nations Convention on the Law of the Sea, 1982,—navigation in the water area of the Northern Sea Route from 24.08.2013 to 27.08.2013 without permission of the Northern Sea Route Administration, as well as taken actions in this[sic] ­creating

66  Greenpeace Defies Russian Attempt to Prevent Arctic Oil Protest, Enters Kara Sea, Greenpeace International Press Release, 24 August 2013, available at . 67  Russians Force Greenpeace Ship to Leave Kara Sea, Environment News Service, 26 August 2013, available at ; R. Milne, Greenpeace Icebreaker Leaves Arctic Waters, Financial Times, 26 August 2013, available at . 68  Russia Moves to Restrict Greenpeace Arctic Oil Drilling Protest, The Sidney Morning Herald, 26 August 2013, available at . 69   Greenpeace Ship to Leave Kara Sea Under Threat of Force from Russian Coast Guard, Greenpeace International Press Release, 26 August 2013, available at . 70  Russians Force Greenpeace Ship to Leave Kara Sea, 27 August 2013, available at .

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potentially[sic] threat of marine pollution in the water area of the Northern Sea Route, ice-covered for most part of the year.71 As both the Russian authorities and Greenpeace appealed to the flag state, i.e. the Netherlands, to secure the protection of their respective rights, it is interesting to note the official position of the Netherlands government in this respect as expressed by the Dutch Minister of Foreign Affairs. In response to a set of parliamentary questions, Minister Timmermans first of all addressed the question whether the repeated refusals to allow an icebreaker to sail the Kara Sea because of alleged deficiencies relating to its ice capabilities, at a time of year that no ice is present in the area, are contrary to the freedom of navigation: On the basis of article 234 of the [LOS] Convention concerning icecovered areas Russia has adopted “Rules of navigation on the water area of the Northern Sea Route”. They inter alia subject navigation through the Northern Sea Route to a system of mandatory prior notification and authorization and oblige the ship and the crew to comply with certain (technical) requirements. These rules have been drafted to secure that ships operating in this area comply with safety and environmental requirements. I would stress the fact that article 58, paragraph 3 read together with article 234 of the [LOS] Convention is no licence to inhibit the freedom of navigation without restrictions. Russia did not grant permission to the Greenpeace Ship Artic[sic] Sunrise to sail the Northern Sea Route because Greenpeace apparently provided incomplete information concerning the technical requirements of the ship. The Artic[sic] Sunrise has the second highest ice class, which is more than sufficient for the intended journey and there are no reasons to doubt the physical condition of ship.72 71  Ministry of Transport of the Russian Federation, Federal Agency for Sea and Inland Water Transport, Northern Sea Route Administration, Notification No.77, 20 September 2013 (based on the application of 5 September 2013), available at . 72   Own translation of Handelingen, Tweede Kamer der Staten-Generaal, Vergadering 2013–2014, Aanhangsel 136, 2 October 2013, Vragen van de leden Van Tongeren en Van Ojik (beiden GroenLinks) aan de Ministers van Buitenlandse Zaken en van Infrastructuur en Milieu over de dreigementen van de Russische kustwacht aan het adres van het Greenpeace-schip Arctic Sunrise (ingezonden 28 augustus 2013). Antwoord van Minister Timmermans (Buitenlandse Zaken) mede namens de Minister van Infrastructuur en Milieu (ontvangen 2 oktober 2013) [Questions of members Van Tongeren and Van Ojik (both members of “GroenLinks”) to the Ministers of Foreign Affairs and the Minister

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As to the question whether the Dutch government intended to raise this issue with Russia, Minister Timmermans responded at that same occasion: On 27 August this year the Russian embassy was summoned in order to obtain clarifications concerning the inspection of the Artic [sic] Sunrise conducted by Russia. First of all the threat of the use of force was denounced and at the same time it was emphasized that Russia should have asked permission from the Netherlands prior to the conduct of the inspection because the ship was flying the Dutch flag. The sending, as soon as possible, of the findings was insisted upon in accordance with the [LOS] Convention. Furthermore, additional explanations were requested concerning the stated reasons (“technical insufficiencies”) for not granting the ship free passage. It was emphasized in this respect that the special measures concerning the Northern Sea Route cannot result in an unbridled restriction of the freedom of navigation. Finally, an inquiry was made concerning the safety zone of 4 nautical miles (about 7,4 km) apparently established around the Russian exploratory vessel “Geolog Dmitry Nalivkin”. The excessive nature of such zone has been pointed out, because it deprives Greenpeace of the right to protest peacefully, as a granted by the ECHR, and also because the [LOS] Convention uses zones of 500 meters as a standard.73 Conclusions At the end of this study, a number of interesting conclusions can be drawn. First, the new legislative framework applicable to the Northern Sea Route since the 2013 navigational season seems to have definitively shelved the issue of the exact field of application of this notion. Even though the 1990 Regulations already contained a provision defining the geographical scope of the Northern

of Infrastructure and the Environment, concerning threats expressed by the Russian Coast Guard with respect to the Greenpeace ship Arctic Sunrise (submitted on 28 August 2013). Answer of Minister Timmermans (Foreign Affairs), also in name of the Minister of Infrastructure and the Environment (received on 2 October 2013)], available at . Hereinafter Answer of Minister Timmermans. 73  Ibid.

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Sea Route,74 the problem with this definition was twofold:75 First, the addition of the wording “and includes seaways suitable for leading ships in ice”76 raised the issue whether such route outside of the exclusive economic zone could be included;77 second, with respect to the lateral boundaries a tendency could be discerned in the Russian literature to widen the field of application to the ice covered eastern waters of the Barents Sea and northern waters of the

74  1990 Regulations, note 25, article 1 (2), defined the Northern Sea Route as “the essential national transport line of the USSR that is situated within its inland seas, territorial sea (territorial waters), or exclusive economic zone adjacent to the USSR Northern Coast and includes seaways suitable for leading ships in ice, the extreme points of which are limited in the west by the western entrances of the Novaia Zemlia Straits and the meridian running north through Cape Zhelaniia, and in the east in the Bering Strait by 66° N and 168°58’37” W” (own translation). 75  For further details, see E. Franckx and L. Boone “The Northeast Passage and the Northern Sea Route: Unity in Division?” in S. Choo (ed.) The 18th International Seminar on Sea Names: Asian and European Perspectives (7–9 March 2012, Brussels, Belgium) (2012) 63, 65–66, available at . 76  As reprinted in note 74. 77  This fine distinction was well understood by the Soviet legislator at that time and could fall back on a similar distinction made a few months earlier. When the Decree of the Council of Ministers of the USSR was adopted on 1 June 1990, On measures for Securing the Implementation of the Edict of the Presidium of the USSR Supreme Soviet of 26 November 1984 “On Intensifying Nature Protection in Areas of the Extreme North and Marine Areas Adjacent to the Northern Coast of the USSR ((1990) 16 Sobranie Postanovlenii Pravitel’stva SSSR (Collected Decrees of the USSR Government) 87; for an unofficial translation by the present author see E. Franckx, “Nature Protection in the Arctic: New Soviet Legislative Initiative” (1991) 6 (issue 4) International Journal of Estuarine and Coastal Law 377, 379–383), article 12 provided: “To enter into effect from 1 June 1990: the provisions of the Edict of the Presidium of the USSR Supreme Soviet of 26 November 1984 “On Intensifying Nature Protection in Areas of the Extreme North and Marine Areas Adjacent to the Northern Coast of the USSR” as applied to marine areas adjacent to the northern coast of the USSR, within the economic zone of the USSR: the provisions of article 3 of the Edict as applied to the Northern Sea Route and adjacent areas (ibid., 383; our emphasis). This article 3 specifically addressed the maritime areas along the northern coast of the USSR where severe climatic circumstances and the presence of ice constitute an impediment or increased risk for navigation. In this area the competent Soviet organs were allowed, inter alia, to establish special rules for navigation relating to construction, manning and equipment as well as pilotage. For a partial English translation by the present author of this article 3, see Franckx, note 17 at 180. On the importance of this distinction, see E. Franckx “Nature Protection in the Arctic: Recent Soviet Legislation” (1992) 41 (issue 2) International and Comparative Law Quarterly 366, 381–382.

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Bering Sea.78 Today, the definition of the Northern Sea Route has found a more prominent place in the Merchant Shipping Code, of which article 5(1) now reads: The area of the Northern Sea Route means a water area adjoining the northern coast of the Russian Federation, including internal sea waters, territorial sea, contiguous zone and exclusive economic zone of the Russian Federation, and limited in the East by the line delimitating the sea areas with the United States of America and by the parallel of the Dezhnev Cape in the Bering Strait; in the West, by the meridian of the Cape Zhelanie to the Novaya Zemlya archipelago, by the east coastal line of the Novaya Zemlya archipelago and the western limits of the Matochkin Shar, Kara Gates, Yugorski Shar Straits.79 This definition does not allow for any extension either beyond the exclusive economic zone or to the adjacent parts of the Barents Sea or Bering Sea.80 This is today also borne out by state practice. First of all, the map shown on the official website of the Administration of the Northern Sea Route81 is much sharper in this respect, clearly depicting the western, northern and eastern borders of the Northern Sea Route, than those previously found in the Russian specialised literature.82 The saga of the Arctic Sunrise also confirms beyond the shadow of

78  Franckx and Boone, note 75 at 65–66. 79  Federal Law on the NSR, note 31, article 5(1). 80  Especially the latter was on the table when this particular amendment to the Merchant Shipping Code was being discussed in parliament. Solski, note 31 at 111. It should moreover be stressed that the competence of the Administration of the Northern Sea Route, when it was first established in 1932, started at the White Sea, i.e. a southern inlet of the Barents Sea, until the Bering Strait. Ob organizatsii pri SNK SSSR Glavnogo upravleniia Severnogo morskogo puti (On the Organisation by the Council of the People’s Commissars of the USSR of the Head Administration of the Northern Sea Route), Postanovlenie SNK SSSR ot 17 dekabria 1932, N° 1873 (Decree of the Council of the People’s Commissars of the USSR of 17 December 1932, N° 1873), Art. 1, as reprinted in M.Y. Zinger Osnovnye zakony po krayinemy Severy (Basic Laws for the Extreme North) (Izdetel’stvo glavnogo upravlenii Severnogo morskogo puti, Leningrad: 1935) 86. 81  Available at . 82  See for instance Koroleva, Markov and Ushakov, note 19 at 50 and 100, where a map is found, entitled Scheme of the Northern Sea Route’s Seaways, depicting different kinds of possible routes some of which clearly reach beyond the 200-mile limit.

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a doubt that the eastern waters of the Barents Sea are not considered by the Russian authorities to form part of the Northern Sea Route.83 Second, recent Russian state practice surrounding the Arctic Sunrise clearly confirms that UNCLOS in general, and its article 234 in particular, do apply to the Arctic. The fact that the fourth and latest refusal to sail the Northern Sea Route during the shipping season 2013 found it necessary to explicitly state that the Russian rules of navigation in the Northern Sea Route are in accordance with UNCLOS article 23484 is ample proof of this.85 At the same time these events indicate that the Russian authorities have become less tolerant of vessels sailing in the exclusive economic zone of the Northern Sea Route without permission. In 2013 threats to use force were made to compel the Arctic Sunrise to leave the Northern Sea Route. In 1992, another Greenpeace ship, the Solo, was only physically harassed in the Kara Sea, which the ship had even entered through the Kara Strait, when it wanted to enter the territorial sea on the eastern coast of Novaia Zemlia and started to take water samples in the area.86 At that time only a lukewarm letter of the head of the Administration of 83  It was only when the ship entered the Kara Sea that this issue was raised (see note 71 and the text accompanying this note). At no time during the multiple actions undertaken by the Arctic Sunrise during that same summer in the eastern Barents Sea, which finally resulted in the seizure of the vessel and the imprisonment of the whole crew, was such argument made. From a legal point of view, it is therefore somewhat troubling to see that a recent western study defines the Northern Sea Route region as including the eastern part of the Barents Sea beyond 40° E and the northern part of the Bering Sea above 65.66° N. See S.R. Stephenson, L.W. Brigham and L.C. Smith, “Marine Accessibility along Russia’s Northern Sea Route” (2014) 37 (issue 2) Polar Geography 111, 117. From the same point of view, also the map on page 115 is rather confusing. 84  As reprinted in the text accompanying note 71. 85  In this respect it might be relevant to underline that also Canada has recently relied on article 234 to support an Arctic legislative initiative. Bill C-3, note 16 at 8. As duly stressed in the literature, this was the first time that Canada had directly relied on article 234 in this respect. See T.L. McDorman “Canada, the United States and International Law of the Sea in the Arctic Ocean” in T. Stephens and D.L. VanderZwaag (eds) Polar Oceans Governance in an Era of Environmental Change (Edward Elgar, Cheltenham: 2014) 253, 263. Or as summarized by V. Golitsyn “The Legal Regime of the Arctic” in D.J. Attard, M. Fitzmaurice and N.A.M. Gutiérrez (eds) The IMLI Manual on International Maritime Law, Volume I, The Law of the Sea (Oxford University Press, Oxford: 2014) 462, 467: “Article 234 has been used by Canada and the Russian Federation as a basis for the establishment of a special regulatory regime for the protection of the marine environment within their respective 200-nm zones in the Arctic”. 86  E. Franckx “De reis van het Greenpeace schip, de MV Solo, naar Novaia Zemlia en het internationaal recht: enkele bemerkingen” (The Journey of the Greenpeace Ship MV Solo

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the Northern Sea Route was addressed to the captain of the Solo after the ship had already been arrested, referring to the 1990 Regulations and concluding that “it could be demanded to pay penalty”.87 Third, the crux of the matter as it becomes apparent from the abovedescribed state practice is to know where to draw the line between coastal state competence and international navigational interests. The coastal state competence is certainly very extensive as it does not require any approval of the International Maritime Organization,88 but the particular negotiating history of article 234 also implies that the “due regard to navigation” notion it contains does put some limits on the former.89 This was apparently also the point of view of Minister Timmermans expressed in the aftermath of the unsuccessful attempts of the Arctic Sunrise to obtain permission to sail the Northern Sea Route in 2013.90 In this respect, the attempt at present to create a Polar Code for navigation might be of relevance. Starting from a patchwork set of domestic rules, not compatible inter se, the international community started since the 1990s to work on what some have called a “harmonisation process” in order to come to a unified system of standards and rules applicable to ships

to Novaia Zemlia and International Law: Some Comments) in C. Eliaerts, M. Flamée and P. Colle (eds) Liber Amicorum Paul De Vroede (Kluwer Rechtswetenschappen België, Diegem: 1994) 803–836. Here a detailed description and analysis can be found of the factual and legal aspects involved. The ship was fired upon before boarding and towed back to Murmansk before being released. 87  Letter kindly obtained from the captain of the Solo, Mr. A. Kuiken (ibid., at 823, note 120; on file with the author). A copy of this letter, obtained this time from the Administration of the Northern Sea Route, later appeared in the specialized literature. See L. Timtchenko, “The Russian Arctic Sectoral Concept: Past and Present” (1997) 50 (issue 1) Arctic 29, 33. During the two days that the Solo had been sailing in the exclusive economic zone of the Kara Sea prior to the boarding, however, no incidents worth mentioning had occurred (Franckx, note 86 at 824). An order to stop had been given when the ship was already more than halfway through the Kara Strait, but once outside the territorial sea in the Kara Sea, the Solo was allowed to sail for two days without being ordered to stop (ibid., at 822–823). 88  Hereinafter IMO. 89  As duly stressed in Conclusion No. 14 of the Committee on Coastal State Jurisdiction Relating to Marine Pollution of the International Law Association after ten years work. Reprinted in E. Franckx (ed) Vessel-source Pollution and Coastal State Jurisdiction: The Work of the ILA Committee on Coastal State Jurisdiction Relating to Marine Pollution (1991– 2000) (Kluwer Law International, The Hague: 2001) 131–132. 90  Answer of Minister Timmermans, notes 72–73 and the text accompanying these notes.

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sailing ice covered waters.91 What its exact impact will be on the issue here at hand is open to conjecture. Indeed some have argued that it will limit the ability of the coastal state to go beyond the rules and standards contained by the Polar Code once operational,92 whereas others are of the opinion that an international regime can only constitute such a limit if framed in a compulsory document containing an explicit link to article 23493 or have even outright contested such possible impact of the Polar Code.94 In other words, the question revolves around whether the Polar Code will have to be considered as a mandatory maximum or rather minimum norm.95 Given the chequered history of the Polar Code so far, which started out as Guidelines, taking the form of a committee document, applicable only to the Arctic,96 later extended to the Antarctic by means of an IMO assembly resolution,97 and now being cast in a mandatory code applicable to both the Arctic and the Antarctic in the form of amendments to existing IMO conventions,98 it is submitted that one will have 91  L.W. Brigham “The Emerging International Polar Navigation Code: Bi-polar Relevance?” in D. Vidas (ed) Protecting the Polar Marine Environment: Law and Policy for Pollution Prevention (Cambridge University Press, Cambridge: 2000) 244, 248. 92  Taking Norway as a point of reference, see O.K. Fauchald “Regulatory Framework for Maritime Transport in the Arctic: Will a Polar Code Contribute to Resolve Conflicting Interests?” in J. Grue and R.H. Gabrielsen (eds) Marine Transport in the High North (Novus, Oslo: 2010) 73, 83 and 88. 93  K. Bartenstein, “The ‘Arctic Exception’ in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?” (2011) 42 (issue 1) Ocean Development and International Law 22, 44. 94  A. Scassola “An International Polar Code of Navigation: Consequences and Opportunities for the Arctic” (2013) 5 Yearbook of Polar Law 271, 286 and 297. 95  Opting for the latter possibility, see for instance W. Østreng, K.M. Eger, B. Fløistad, A. Jørgensen-Dahl, L. Lothe, M. Mejlænder-Larsen and T. Wergeland Shipping in Arctic Waters: A Comparison of the Northeast, Northwest and Trans Polar Passages (Springer, Berlin: 2013) 245–246. 96  Guidelines for Ships Operating in Arctic Ice-Covered Waters, IMO Doc. MSC/Circ.1056MEPC/Circ.399, 23 December 2002, available at . 97  Guidelines for Ships Operating in Polar Waters, IMO Res. A.1024 (adopted on 2 December 2009), 18 January 2010, available at . 98  For other recent accounts, see for instance in alphabetical order: Anderson, Harry Edwin III, “Polar Shipping, the Forthcoming Polar Code and Implications for the Polar Environments” (2012) 43 (issue 1 January) Journal of Maritime Law and Commerce 59–83; I.G. Brosnan, “The Diminishing Age Gap Between Polar Cruisers and Their Ships: A New Reason to Codify the IMO Guidelines for Ships Operating in Polar Waters and Make Them Mandatory?” (2011) 35 (issue 2) Marine Policy 261–265; P. Kikkert, “Promoting

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to await its final adoption before any relevant conclusions can be drawn in this respect. In conclusion it can be submitted that UNCLOS did take the Arctic into account as an integral part of the Constitution for the Oceans. During the UNCLOS III negotiations the three directly involved countries, i.e. Canada and the former Soviet Union as gatekeepers of the northwest and northeast passages respectively and the United States as staunch supporter of the navigational interests, reached a compromise among themselves, which was later accepted by the other delegations without much discussion. The Cold War and extremely limited usage of these northern waters by other countries in those days were mainly responsible for the lack of interest by others. Climate change has however thoroughly reshuffled the cards in the meantime, and the Northeast Passage has been the first to attract international shipping companies as a transit route between the Atlantic and the Pacific Ocean. Transit navigation in the area started in 2010 and has increased steadfastly since then, urging Russia to take legal action while at the same time arousing the interest of outsiders on both sides of the route like the European Union or Asian countries to an extent that the UNCLOS III negotiators could hardly have envisaged. The balance established by the three protagonists during the 1970s and codified in UNCLOS is at present being tested in practice. It is therefore no coincidence that a Polar Code is being worked out. Its possible influence, if successful,99 on the further evolution of this legal regime in the Arctic, and the specific stakes that different countries have been putting out so far, as indicated above, will be an interesting development to follow.

National Interests and Fostering Cooperation: Canada and the Development of a Polar Code” (2012) 43 (issue 3 July) Journal of Maritime Law and Commerce 319–334; and R. Rayfuse “Coastal State Jurisdiction and the Polar Code: A Test Case for Arctic Oceans Governance?” in T. Stephens and D.L. VanderZwaag (eds) Polar Oceans Governance in an Era of Environmental Change (Edward Elgar, Cheltenham: 2014) 235–252. 99  Even though Canada and Russia seem to have similar interests, their positions on the Polar Code are not necessarily identical. If Canada focusses on unescorted passages as a general rule, Russia rather starts from navigation escorted by ice-breakers, resulting in different positions taken. As remarked by K. Bartenstein “Navigating the Arctic: The Canadian NORDREG, the International Polar Code and Regional Cooperation” (2011) 54 German Yearbook of International Law 77–124.

CHAPTER 9

Safeguards against Excessive Enforcement Measures in the Exclusive Economic Zone— Law and Practice James Harrison Introduction One of the major outcomes of the Third United Nations Conference on the Law of the Sea (UNCLOS III) was the extension of coastal state jurisdiction. Delegates agreed to the creation of a number of new maritime zones, one of the most significant of which was the exclusive economic zone (EEZ). According to this new doctrine, coastal states were granted sovereign rights and exclusive jurisdiction over a range of issues in waters up to 200 nautical miles from their coast. Within the EEZ, a coastal state has sovereign rights over living and non-living resources, as well as “other activities for the economic exploitation and ­exploration of the zone.”1 Coastal states also have sovereign jurisdiction over the establishment and use of artificial islands, installations and structures, marine scientific research, and the protection and preservation of the marine environment.2 At the same time, the interests of other states were protected and they continued to enjoy, “subject to the relevant provisions of [the] Convention”, certain fundamental freedoms, including the freedom of navigation.3 Thus, in interpreting and applying the Convention, it is necessary to bear in mind the balance between these different interests. One way in which this balance has been achieved is through the attachment of certain conditions to the manner in which the new enforcement powers of the coastal state may be exercised. The arrest and detention of foreign vessels was considered to be “a particularly sensitive matter”4 during the negotiation * Senior Lecturer in International Law, University of Edinburgh. 1  1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3 (“UNCLOS”), Art. 56(1)(a). 2  Ibid., Art. 56(1)(b). 3  Ibid., Art. 58(1). 4  B.H. Oxman, “Observations on Vessel Release under the United Nations Convention on the Law of the Sea” (1996) 11 International Journal of Marine and Coastal Law 201–215, 202.

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of the Convention. Maritime states, defending their interest in navigational freedom, were not willing to confer comprehensive powers of enforcement on coastal states in this new zone. Thus, an important part of the compromise negotiated at UNCLOS III was the imposition of certain safeguards associated with the exercise of these new competences. It is the nature and scope of these safeguards that will be the focus of this paper. There is no single set of safeguards that apply to all of the enforcement powers conferred on the coastal state. Rather, the safeguard provisions are to be found scattered throughout the Convention text. The paper will explore the range of safeguards that are applied to enforcement powers in the EEZ, discussing their nature and what they tell us about the balance between coastal state jurisdiction and freedom of navigation. Many of these safeguards employ terms such as ‘necessary’, ‘reasonable’ or appropriate’ in order to delineate this balance. As noted by Franckx, the use of such drafting techniques postpones the decision as to the precise balance between coastal state and flag state interests.5 In the first instance, it is up to the coastal state to strike this balance. However, the existence of international rules means that decisions of coastal states can be the subject of scrutiny by other states. Moreover, the existence of compulsory dispute settlement procedures also means that it is the courts and tribunals charged with deciding disputes under the Convention who may be asked to determine whether a correct balance has been struck. How courts and tribunals interpret and apply these safeguards is therefore crucial. The analysis provides an opportunity to reflect upon the jurisprudence that has emerged since the entry into force of the Convention and to assess whether it provides satisfactory guidance on this important topic.

Powers of Arrest in the EEZ and Applicable Safeguards

The Convention does not have a single provision on the ability of a coastal state to arrest vessels suspected of violating its laws and regulations in the EEZ. Rather, the issue is addressed in relation to each individual competence. In some cases, the Convention is explicit in detailing the enforcement powers of the coastal state. In other cases, no enforcement powers are expressly conferred on the coastal state and therefore one must first enquire whether such powers exist, before asking what limits may apply thereto.

5  E. Franckx, “‘Reasonable Bond’ in the Practice of the International Tribunal for the Law of the Sea” (2001–2002) 32 California Western International Law Journal 303–342, 309.

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Powers of Arrest and Specific Safeguards in Relation to Fisheries Offences One of the driving forces behind the establishment of the EEZ was the demand by many coastal states for stronger rights to the living resources in their adjacent waters. The issue had been raised at previous law of the sea conferences, yet it had not been possible to reach a settlement.6 Nevertheless, the issue continued to cause problems.7 Finally, a compromise was reached whereby coastal states were granted ‘sovereign rights’ for the purposes of conserving and managing fish stocks within 200 nautical miles of the territory.8 Foreign fishing vessels were only permitted access to those living resources with the agreement of the coastal state.9 The power of a coastal state to exercise enforcement powers over foreign fishing vessels is explicitly addressed in Article 73 of the Convention.10 Coastal states can exercise enforcement powers both against vessels which are not authorized to fish in their EEZs, as well as to ensure compliance with laws and regulations by those vessels which are authorized to fish therein. Amongst the enforcement measures explicitly listed in Article 73(1) are “boarding, inspection, arrest and judicial proceedings.” Thus, there is no doubt that the officials of the coastal state may stop and search a suspect vessel and, if there is

6   The issue had been dealt with in Articles 6–7 of the 1958 Convention on Fishing and Conservation on the High Seas, 559 UNTS 285, but many states remained unsatisfied with this solution and the treaty received very little support. Coastal state rights over fish stocks was thus one of the questions that was submitted to the Second United Nations Conference on the Law of the Sea (“UNCLOS II”), but this conference was also unable to come to a satisfactory compromise. Conference Resolution II simply noted that “the development of international law affecting fishing may lead to changes in practices and requirements of many states.” 7   Notably, a major dispute over the rights of a coastal state to regulate fisheries in its coastal waters was brought to the International Court of Justice a few years before the commencement of negotiations at UNCLOS III: see Fisheries Jurisdiction cases (1974) ICJ Reports 3 and 175. 8   UNCLOS, note 1 Art. 56(1)(b). 9   This paper only addresses the enforcement of conservation and management measures for fisheries within the EEZ. There are debates about the prescriptive jurisdiction of coastal states over fishing vessels whilst in transit which will not be addressed; see W.T. Burke, Fisheries Regulations under the Extended Jurisdiction and International Law: FAO Fisheries Technical Paper 223 (Food and Agriculture Organization, 1982). 10  See also UNCLOS, note 1 Art. 62(4)(k), which lists ‘enforcement procedures’ amongst the matters that may be regulated by the coastal state in relation to nationals of other states fishing in the EEZ.

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evidence of a violation, they may bring the vessel to port and start criminal proceedings in national courts. However, this power is also subject to certain safeguards, designed to ensure that the coastal state does not encroach upon the legitimate rights and interests of other states when exercising these powers. First and foremost, Article 73(1) requires that enforcement measures taken by the coastal state must be ‘necessary.’ This necessity standard is central to determining the balance between coastal state rights and the interests of other states. The inclusion of this phrase means that the enforcement actions of the coastal state are subject to some scrutiny by an international court or tribunal. As explained by Judge Paik in his separate opinion in the M/V Virginia G case, “the notion of necessity attempts to balance two conflicting interests at play: namely, preserving the freedom of a state to achieve the objective it seeks through means of its choosing, and restraining the state from choosing means that would unduly infringe the protected rights or interests of another entity, be it an individual or a state. The notion of necessity understood this way can be characterized essentially as a ‘balancing test.’”11 The question is what standard of review should a court or tribunal adopt when interpreting this provision and determining whether an appropriate balance has been struck. In the M/V Virginia G case, the Tribunal simply noted that “neither the boarding and inspection nor the arrest of the M/V Virginia G violated article 73, paragraph 1, of the Convention”,12 without any explanation of its finding. Thus they did not clarify how this standard should be interpreted in the context of enforcement measures.13 Given the importance of this provision in defining the balance between coastal state interests and flag state interests, it arguably deserves more attention. At the outset, it must be remarked that the term ‘necessary’ is open-ended. As noted by the WTO Appellate Body, the term can have a range of meanings from ‘indispensable’ to ‘making a contribution to.’14 The meaning to be given 11  M/V Virginia G case, International Tribunal for the Law of the Sea (ITLOS) Judgment of 14 April 2014, ITLOS Reports 2014 (to be published), text of the Judgment available also at , Separate Opinion of Judge Paik, para. 9. See also para. 24: “In the balancing test, the relative importance of those interests to the respective state or states is an important factor to be considered in assessing whether a measure in question is necessary.” 12  M/V Virginia G case, note 11, para. 265. 13  The Tribunal did interpret and apply the test in Article 73(1) in the context of sanctions applied by the coastal state, as discussed below. 14  Korea—Various Measures on Beef, World Trade Organization (WTO) Appellate Body Report of 11 December 2000, WT/DS161/AB/R, WT/DS169/AB/R, para. 161.

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to the provision will therefore depend upon an examination of its context and object and purpose. It is suggested that the fact that the coastal state is exercising sovereign rights should have an important bearing on how this standard is interpreted. The notion of sovereign rights suggests that the coastal state should have a broad margin of appreciation in exercising its enforcement powers. This view has been expressed in a slightly different context by Vice President Hoffman and Judges Rao, Marotta Rangel, Kateka, Gao, and Bouguetaia, who argued in the M/V Virginia G case that “[t]he term ‘sovereign rights’ ought to carry with it a degree of deference to the coastal state in its exercise of those rights, unless such deference is denied by the Convention itself.”15 It follows that courts and tribunals should only overrule the decisions of the coastal state in extreme circumstances. In other words, coastal states should not be found in violation of Article 73(1) unless their actions can be shown to be arbitrary or patently unreasonable or exercised in bad faith. Whether or not an enforcement measure is necessary will also depend upon the facts of the particular case and the nature of the enforcement action being exercised. In relation to the inspection of vessels engaged in fishing the EEZ, the coastal state should arguably have very broad discretion. Indeed, the exercise of this power would appear to be necessary for the coastal state to ensure that its national laws and regulations are being followed by fishing vessels and, according to one author, the coastal state may inspect fishing vessels ‘as a matter of right.’16 However, the more intrusive the powers exercised by the coastal state, the more justification they may require. For example, the decision to arrest a vessel may not always be necessary unless there is some evidence of an offence. In other words, Article 73(1) would appear to contain an implicit evidential threshold for the exercise of enforcement powers, requiring there to be reasonable grounds for believing that an offence has taken place,17 for example that the vessel had not stowed its fishing equipment.18 Similarly, if a foreign fishing vessel is merely navigating through the EEZ, it is arguable that a coastal state should have to show some evidence that an offence has been 15  M/V Virginia G case, note 11, Joint Dissenting Opinion of Vice President Hoffman and Judges Rao, Marotta Rangel, Kateka, Gao, and Bouguetaia, para. 49. 16  D. Anderson, “Investigation, Detention and Release of Foreign Vessels under the UN Convention on the law of the Sea of 1982 and Other International Agreements” (1996) 11 International Journal of Marine and Coastal Law 165–177, 171. 17  Compare the explicit evidential threshold in relation to pollution offences, below. 18  Indeed, some countries require fishing vessels to stow their fishing equipment whilst they are navigating through the EEZ; see Burke, note 9 at 223.

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committed before exercising any enforcement powers over that vessel. This would be the case even in the case of an inspection of the vessel, as inspection itself amounts to an interference with the freedom of navigation being exercised by the vessel. In this context, it is also appropriate to impose a minimum evidential threshold on the coastal state to prevent it from abusing its enforcement powers. Yet, in both situations, the evidential threshold should not be set too high. Doing so, would undermine the sovereign rights of the coastal state. We will return to this issue when discussing the necessity of penalties below.

Powers of Arrest and Specific Safeguards in Relation to Environmental Offences Article 56 of the Convention confers on the coastal state “jurisdiction as provided for in the relevant provisions of this Convention with regard to . . . the protection and preservation of the marine environment.”19 The precise powers of the coastal state in this regard are elaborated in Part XII of the Convention, which permits the coastal state to regulate dumping20 and pollution by ships.21 The coastal state has a broad power to regulate dumping within the EEZ and the Convention makes clear that “dumping . . . shall not be carried out without the express prior approval of the coastal state.”22 Indeed, the coastal state is required to ensure that its national laws are at least as effective as global rules and standards on dumping, emphasizing that this is a matter that should be strictly controlled.23 To this end, Article 216 explicitly confers a power on the coastal state to enforce laws and regulations for the prevention, reduction and control of pollution of the marine environment by dumping in its EEZ.24 This provision does not explicitly define the enforcement powers to be exercised by the coastal state, although it is reasonable to assume that it includes the inspection, arrest and initiation of proceedings against a vessel suspected of having violated relevant laws and regulations. However, some safeguards do apply to the exercise of these enforcement powers. Firstly, the Convention explicitly provides that enforcement activities must be carried out by a vessel that is identifiable as being on government service.25 Secondly, any inspection

19  UNCLOS, note 1 Art. 56(1)(b)(iii). 20  Ibid., Art. 210(5). 21  Ibid., Art. 211(5)–(6). 22  Ibid., Art. 210(5). 23  Ibid., Art. 210(6). 24  Ibid., Art. 216(1)(b). 25  Ibid., Art. 224.

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must not delay the vessel any longer than is necessary.26 The provision would equally apply to a situation where an inspection is carried out in a manner that causes unduly delays the ships, as well as the situation where there was no evidence for an inspection in the first place. As in the case of fisheries enforcement, it is suggested that the necessity of inspection and arrest will depend upon there being some evidence of an offence, albeit with a low threshold. Unlike fisheries enforcement, in the case of environmental offences, states are also required to provide a national remedy for any damage or loss that may be attributable to measures which exceed those which are reasonably required.27 Less discretion is given to coastal states in relation to other environmental offences by foreign vessels. The legislative jurisdiction of the coastal state over pollution from ships is limited by reference to ‘generally accepted international rules and standards.’28 This limitation ensures that coastal states cannot hamper freedom of navigation by the prescription of overly restrictive unilateral standards. Coastal states are also granted an explicit power of detention and instituting proceedings against the vessel.29 However, this power is subject to stringent conditions and the precise enforcement measures that may be taken by the coastal state will depend upon a number of factors.30 Where there are clear grounds for believing that a vessel has committed a pollution offence in the EEZ, the coastal state may “require the vessel to give information regarding its identity and port of registry, its last and next port of call and other relevant information required to establish whether a violation has occurred.”31 It is clear from this provision that it is intended to allow the coastal state to gather relevant information which may be passed on to another state (port state or flag state) to initiate proceedings in accordance with the Convention. However, it falls short of empowering the coastal state to take enforcement action itself. It is only in the situation where there are clear grounds for believing that a vessel has committed an offence “resulting in a substantial discharge causing or threatening significant pollution of the marine environment” that a coastal state may even contemplate the inspection of a vessel at sea.32 Furthermore, 26  Ibid., Art. 226(1)(a). 27  Ibid., Art. 232. 28  Ibid., Art. 211(5). 29  Ibid., Art. 220(6). 30  Anderson, note 16 at 174: “Paragraphs 3 to 7 lay down graduated responses to cases where there are clear grounds for believing that violations of international rules and standards for the prevention of pollution in the exclusive economic zone have been committed.” 31  UNCLOS, note 1, Art. 220(3). 32  Ibid., Art. 220(5).

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such investigations must be carried out in a way that does not delay the vessel any longer than is necessary33 and, as in the case of dumping, it must allow claims in its national law for any damage or loss that may be attributable to measures which exceed those which are reasonably required.34 Detention of a vessel following inspection is only permissible if there is “clear objective evidence” of a violation that results in “a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal state, or to any resources of its territorial sea or exclusive economic zone.”35 Thus, in the case of pollution offences, the evidential threshold is explicit. Clear objective evidence is obviously a high standard36 and there is also a very high threshold of damage that must have been caused before enforcement action may be taken, which leads to the conclusion that this power is clearly only intended to apply to the rarest of circumstances.37 Yet, the terms are also ambiguous and therefore there may still be a role for courts and tribunal deciding whether the action taken by coastal states is lawful or not.

The Power of Arrest and Specific Safeguards in Relation to Safety Zones around Artificial Islands, Installations and Structures in the EEZ The Convention confers on the coastal state “the exclusive right to construct and to authorize and regulate the construction, operation and use of” all artificial islands and other installations and structures to be used for an economic purpose within the EEZ.38 In addition, “the coastal state may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures in which it may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures.”39 Such safety zones would permit a coastal state to prohibit free navigation in the designated areas for the purposes of ensuring the safety of offshore

33  Ibid., Art. 226(1). 34  Ibid., Art. 232. 35  Ibid., Art. 220(6). 36  See A. Pozdnakova, Criminal Jurisdiction over Perpetrators in Ship-Source Pollution (Martinus Nijhoff Publishers, Leiden: 2013) 109. 37  It is worth noting that the right of preemption of a flag state under Article 228(1) of the Convention would not apply in this situation as the existence of ‘major damage’ is a condition of the exercise of this jurisdiction. 38  UNCLOS, note 1, Art. 60(1). 39  Ibid., Art. 60(2).

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operations.40 However, the Convention is ambiguous as to what precise measures may be taken to enforce laws and regulations adopted under these powers.41 It is important to distinguish the powers of coastal states in relation to offences committed on an artificial island, installation or platform itself from enforcement jurisdiction within the safety zone. In relation to offences committed on an artificial island, installation or platform, the coastal state would appear to have full and exclusive enforcement jurisdiction, without any conditions attached.42 As noted by Judge Golitsyn in the Arctic Sunrise case: Laws and regulations enacted by the coastal state in furtherance of its exclusive jurisdiction under article 60, paragraph 2, of the Convention would be meaningless if the coastal state did not have the authority to ensure their enforcement. Consequently, it follows from article 60, paragraph 2, of the Convention that the coastal state has the right to enforce such laws and regulations, including by detaining and arresting persons who violate the laws and regulations that govern activities on artificial islands, installations and structures.43 The situation would be different in the context of the enforcement of safety zones. It is clear from Article 60(4) that the coastal state does not have complete discretion in determining whether to exercise its enforcement powers. There are a number of conditions which attach to the powers of the coastal state in this context. Firstly, the laws and regulations which are being enforced must 40  See International Maritime Organization (IMO) Assembly Resolution A.671(16), Safety Zones and Safety of Navigation around Offshore Installations and Structures, adopted on 19 October 1989. 41  See D. Attard, The Exclusive Economic Zone in International Law (Clarendon Press, Oxford: 1987) 90; M. Nordquist et al. (eds), United Nations Convention on the Law of the Sea 1982— A Commentary, vol. II (Martinus Nijhoff Publishers, Dordrecht: 1993) 586. 42  UNCLOS, note 1, Art. 60(2). 43  Arctic Sunrise case, ITLOS Order of 22 November 2013, ITLOS Reports 2013 (to be published), text of the Order also available at , Dissenting Opinion of Judge Golitsyn, para. 23. See also Joint Separate Opinion of Judge Wolfrum and Judge Kelly, para. 11: “a coastal State only has limited enforcement jurisdiction in the exclusive economic zone . . . the situation is different in respect of artificial islands and installations where the coastal State according to article 60, paragraph 2, of the Convention enjoys exclusive jurisdiction and in the safety zones around such artificial island or installations. This include legislative jurisdiction as well as the corresponding enforcement jurisdiction.”

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be necessary and reasonable in the first place. In this regard, the Convention explicitly requires that “artificial islands, installations and structures and the safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.”44 Thus, the impact on freedom of navigation should be limited at the outset by the design of the safety zones. The Convention also requires that enforcement measures must be ‘appropriate.’ As with the safeguards that are applicable to the other rights in the EEZ, the interpretation of this provision requires the striking of a balance between the rights of the coastal state and the interests of other states.45 Yet, the choice of the term ‘appropriate’ would seem to suggest a margin of appreciation for the coastal state at least as broad as the case of fisheries offences, if not broader. It can be argued that the concept of ‘appropriate measures’ under Article 60(4) includes enforcement action, which may include the power to arrest a vessel. This was certainly the position taken by Judge Golitsyn in his dissenting opinion in the Arctic Sunrise case46 and he appears to be supported by some of the other judges.47 In contrast, the relevant IMO resolution on safety zones refers to the coastal state taking ‘action in accordance with international law’, but only makes explicit mention of the ability of the coastal state to inform the flag state of a violation.48 However, the list is clearly of an illustrative nature and coastal state enforcement cannot be excluded simply by the fact of its omission. This issue is likely to be further discussed in the ongoing Arctic Sunrise arbitration and the tribunal may provide welcome guidance on the interpretation of these provisions.49

44  UNCLOS, Art. 60(7). See also Article 261 relation to installations for the purposes of marine scientific research. 45  See Attard, note 41 at 91: “the framework proposed by Article 60 attempts to create a balance between the exclusive right to establish artificial islands etc., and the community’s navigational interests.” 46  Arctic Sunrise case, note 43, Dissenting Opinion of Judge Golitsyn, para. 25: “Reference in article 60, paragraph 4, to the right of the coastal State to take appropriate measures means that under the Convention the coastal State has the authority to take appropriate measures to ensure compliance with its regulations governing activities within safety zones, in other words to take the necessary enforcement measures.” 47  Ibid., Joint Separate Opinion of Judge Wolfrum and Judge Kelly, para. 11. 48  IMO Assembly Resolution A.671(16), note 40, Annex, para. 3.1. See also UNCLOS, note 1, Article 260 dealing safety zones around marine scientific research installations, which provides that “all States shall ensure that such safety zones are respected by their vessels.” 49  For the latest developments in the arbitration, see the website of the Permanent Court of Arbitration, available at .

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The Power of Arrest and Specific Safeguards in Relation to Marine Scientific Research in the EEZ Article 56 of the Convention confers on the coastal state “jurisdiction as provided for in the relevant provisions of this Convention with regard to . . . marine scientific research.”50 Further detail on the extent of this jurisdiction can be found in Article 246 of the Convention, which provides in its opening paragraph that “[c]oastal states, in the exercise of their jurisdiction, have the right to regulate, authorize and conduct marine scientific research in their exclusive economic zone and on their continental shelf in accordance with the relevant provisions of this Convention.”51 This would apply to marine scientific research conducted by vessels or on installations. The relevant provisions clearly require the consent of the coastal state for any research project conducted in the EEZ, although the mechanisms for granting that consent vary depending on the precise circumstances.52 This article makes no mention of any powers of enforcement against vessels engaged in marine scientific research. Attard concludes from this omission that the only enforcement power available to a coastal state is the ability to suspend or terminate a project in accordance with Article 253; he says that “in ensuring that the researching state does not violate its rights, [the coastal state] may suspend or cease the project but cannot, for example, arrest the researching vessel.”53 It must be wondered, however, whether there are no situations in which the coastal state could arrest a research vessel if it was failing to comply with the conditions that had been attached to the research project by the coastal state. To the contrary, Article 298(1)(b) refers to ‘law enforcement activities’ in the context of marine scientific research and the ordinary meaning of this term arguably includes the power to inspect and arrest a vessel that had violated the relevant legal framework. Moreover, as a matter of policy, it would seem that the coastal state should have the ability to arrest and bring proceedings against that vessel in order to protect its exclusive rights. At the same time, as with the other areas of EEZ competence, it may be necessary to impose some sort of evidential threshold on the coastal state in order to prevent the abuse of this enforcement power. Without such a safeguard, the coastal state may be able to undermine the balance between its own rights and the freedom of navigation of other states.

50  UNCLOS, note 1, Art. 56(1)(b)(ii). 51  Ibid., Art. 246(1). 52  Ibid., Art. 246(2)–(6). 53  Attard, note 41 at 117.

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General Safeguards on the Power of Arrest in the EEZ In addition to the specific safeguards on arrest discussed above, there are a number of other conditions that apply to the exercise of this power over vessels in the EEZ. Firstly, Article 225 of the Convention provides that “in the exercise under this Convention of their powers of enforcement against foreign vessels, states shall not endanger the safety of navigation or otherwise create any hazard to a vessel, or bring it to an unsafe port or anchorage, or expose the marine environment to an unreasonable risk.” Although this provision is found in Part XII relating to the protection of the marine environment, it refers to the exercise of powers of enforcement ‘under this Convention’ and it therefore applies to all enforcement activities.54 This provision is quite broad and it could cover a range of limitations on the enforcement jurisdiction of a state, including the manner in which arrests are carried out. In practice, the regulation of arrests by coastal states has not been addressed through the prism of Article 225, but rather through general rules of international law. It is generally accepted that the powers of the coastal state include the possibility to use force where necessary.55 The regulation of the use of force is not expressly dealt with in the Convention. However, in the M/V Saiga (No. 2) case, the Tribunal held that “[a]lthough the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of Article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances.”56 On the facts of that particular case, the Tribunal found that the Guinean authorities had violated those rules, by firing live ammunition from a fast-moving patrol boat without warnings and by firing indiscriminately while on the deck of the vessel, including using gunfire to stop the engine of the ship.57 The problem with the approach of the Tribunal in this case is that it is not entirely clear that it had jurisdiction to deal with a claim based on rules that are not contained in the Convention. Article 293 of the Convention does permit the application of other rules of international law that are compatible with the Convention, but there is a ‘cardinal distinction’ between applicable law 54  This interpretation was confirmed by ITLOS in the M/V Virginia G case, note 11 at para. 373. 55  Ibid., at para. 360. See also Nordquist, note 41 at 794. 56  M/V Saiga case (No. 2), ITLOS Judgment of 1 July 1999, ITLOS Reports 1999 at 10, para. 155. 57  Ibid., paras. 157–159.

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and jurisdiction.58 Thus, whilst it is permissible to refer to other rules of international law in the reasoning of a decision, it would seem to go beyond the jurisdiction of a court if other rules are the basis of the dispositif of the judgment, as was the case in M/V Saiga No. 2.59 It would have been preferable in that particular case to refer to Article 225, which would have arguably allowed the Tribunal to read a similar rule into the Convention as a matter of treaty interpretation, rather than relying upon the application of a rule that wasn’t found in the Convention at all. The M/V Saiga No. 2 is not a sole example of a willingness to look beyond the confines of the Convention for additional rules to curtail the enforcement powers of the coastal state. In another example, the Tribunal has made clear that, when exercising enforcement powers under Article 73, states must operate according to other general requirements under international law, including “that enforcement activities can be exercised only by duly authorized identifiable officials of a coastal state and that their vessels must be clearly marked as being on government service.”60 As seen above, this requirement is found in relation to some specific EEZ offences,61 but there is no express provision that applies this principle to fisheries enforcement in the EEZ.62 There is clearly a lacuna in the Convention in this context.63 However, one is entitled to ask whether it is legitimate for the Tribunal, as a judicial organ, to fill this gap. Even if one does not disagree with the substantive rule that is being applied in this case, the decision does raise questions about the circumstances in which the Tribunal is willing to go beyond the terms of the Convention. Frequent recourse to this tactic introduces a degree of uncertainty about the precise 58  MOX Plant case, Permanent Court of Arbitration (PCA) Procedural Order No. 3 of 24 June 2003, available at , para. 19. 59  See further J. Harrison, “Judicial Law-Making and the Developing Order of the Oceans” (2007) 22 International Journal of Marine and Coastal Law 283–302, 301. 60  M/V Virginia G case, note 11, at para. 342. See also ibid., dispositif para. 12 in which it is clear that the Tribunal is extending a ‘principle’ found elsewhere in the Convention to the situation of fisheries enforcement in the EEZ. 61  UNCLOS, note 1, Art. 224 on protection of the marine environment. See also Art. 111(5) on hot pursuit. 62  M/V Virginia G case, note 11. 63  It has been applied to certain categories of fisheries enforcement actions under the Fish Stock Agreement; see Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (“Fish Stock Agreement”), 2167 UNTS 88, Art. 21(4) on subregional and regional cooperation in enforcement on the high seas.

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balance of rights and interests contained therein and it threatens the integrity of the Convention regime.64

Notification in Cases of Arrest or Detention of Foreign Vessels

Once an arrest has taken place in accordance with the applicable provisions of the Convention, a series of other obligations are potentially triggered. The first of these obligations is the duty to notify the flag state of the arrest.65 Where the coastal state has arrested or detained a foreign fishing vessel, Article 73(4) establishes a duty of the coastal state to “promptly notify the flag state, through appropriate channels, of action taken and of any penalties subsequently imposed.” The provision leaves it to the discretion of the coastal state to choose an appropriate channel.66 A similar provision is found in relation to the inspection, arrest and commencement of proceedings for pollution offences. Article 231 requires the coastal state to not only notify the flag state of the measures taken by it, but also to “submit to the flag state all official reports concerning such measures.” On the other hand, there are no similar provisions relating to arrests for other offences committed in the EEZ. It does not follow that equivalent obligations may not exist under other international instruments. For example, Article 36(1)(b) of the Vienna Convention on Consular Relations67 requires a state to inform, without delay, the consular authorities if a national of that state has been “arrested or committed to prison or to custody pending trial or is detained in any other manner.”68 This provision would arguably apply to the arrest or detention of crew members in the EEZ. However, a key difference of this provision is that it does not cover the arrest of the ship and therefore, if the crew were of a different nationality to the flag of the vessel, the flag state may 64  See also A. Boyle and J. Harrison, “Judicial Settlement of Environmental Disputes: Current Problems” (2013) 4 Journal of International Dispute Settlement 245–276 at 255: “a carefully structured dispute settlement scheme, such as Part XV of UNCLOS, is unlikely to survive expansive rewriting of this kind.” 65  In practice, states will notify the flag state whenever they take any enforcement action against a vessel, including inspection. Thanks to Prof. Ted McDorman for making this point in his comments on the paper. 66  Any mention of consular or diplomatic channels were dropped from the text in the drafting process; Nordquist, note 41 at 795. 67  596 UNTS 261. 68  It was this provision which was the subject of dispute in the La Grand case (2001) ICJ Reports 466.

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not receive notification that the vessel had been arrested. Moreover, these provisions would not be enforceable through the dispute settlement provisions of UNCLOS, thus undermining their effectiveness as a potential safeguard.69

Prompt Release

Another significant safeguard on the exercise of coastal state enforcement powers in the EEZ is the requirement of prompt release. Not only does the Convention contain several provisions on prompt release, but it also creates a specific dispute settlement procedure for this purpose. According to Article 292(1): Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining state under article 287 or to the International Tribunal for the Law of the Sea, unless the parties agree otherwise. In exercising this power, a court or tribunal plays an important role in upholding the balance of interests enshrined in the EEZ regime. The following sections will consider how this balance has been struck in practice and what issues arise in the implementation of the prompt release provisions. Prompt Release in the Case of Fisheries Offences If the coastal state does exercise its powers of arrest in relation to fisheries vessels, Article 73(2) provides that it must offer to promptly release the vessels or crew, pending a trial, on payment of a bond or other financial security. Article 73(2) only applies to vessels that have been arrested under laws and regulations relating to the exploration, exploitation, conservation and management of living resources in the EEZ. Yet, in the very first case to come before 69  The 1963 Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes, 596 UNTS 487, is another avenue for the institution of proceedings, but it only has 50 parties.

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it, the Tribunal took a broad view of the interpretation of this provision. By a majority, it held that “laws or regulations on bunkering of fishing vessels may arguably be classified as laws or regulations on activities within the scope of the exercise by the coastal state of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone.”70 Although the judgment in the M/V Saiga case was adopted subject to the dissenting opinions of nine of judges,71 the principle that the bunkering of fishing vessels in the EEZ falls within the sovereign rights of the coastal state was recently confirmed in the M/V Virginia G case.72 It follows that both fishing vessels and vessels performing support functions to fishing operations will fall within the scope of this procedure. In interpreting and applying the substantive requirements of Article 73(2), the Tribunal has stressed the importance of balancing the interests of the coastal state and the flag state. As held by ITLOS in the Monte Confurco case:73 Article 73 identifies two interests, the interest of the coastal state to take appropriate measures as may be necessary to ensure compliance with the laws and regulations adopted by it on the one hand and the interest of the flag state in securing prompt release of its vessels and their crews from detention on the other. It strikes a fair balance between the two interests. It provides for release of the vessel and its crew upon the posting of a bond or other security, thus protecting the interests of the flag state and of other persons affected by the detention of the vessel and its crew. The principal obligation in Article 73(2) is to release the vessel upon payment of a bond. Thus, the arresting state is under an obligation to set a bond. The Convention does not specify the precise procedures that must be followed by the coastal state in setting a reasonable bond and the Tribunal has accepted

70  M/V Saiga case, ITLOS Judgment of 4 December 1997, ITLOS Reports 1997 at 16, para. 63. 71  Dissenting opinions were delivered by President Mensah, Vice-President Wolfrum, and Judges Yamamoto, Park, Nelson, Chandrasekhara Rao, Vukas, Ndiaye, and Anderson. 72  M/V Virginia G case, note 11 at para. 217. See, however, the accusation of judicial lawmaking by Judge Lucky in his Separate Opinion, para. 27. 73  Monte Confurco case, ITLOS Judgment of 18 December 2000, ITLOS Reports 2000 at 86, para. 70.

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that coastal states have some discretion to “determine the most appropriate procedure in accordance with its national law.”74 Nor does the Convention set a precise time limit for the arresting state to do this. However, the Tribunal in interpreting and applying this provision has stated that “the time required for setting a bond should be reasonable.”75 If the arresting state has not complied with this obligation, then the flag state may apply for the prompt release of the vessel and the bond will be set by ITLOS or other agreed forum.76 In practice, the allowance of a reasonable period of time to set a bond is likely to operate as a defence for the coastal state against premature applications for prompt release. Yet, it is unlikely that coastal states will be given too much leeway in this regard. Judge Tuerk noted in the Hoshinmaru case that “[t]he exact time-period for the setting of a bond will certainly depend on the degree of complexity of the investigations carried out by the detaining State and will thus have to vary from case to case”, but he went on to suggest that “a maximum period of approximately one month after the detention of a vessel and its crew would seem reasonable for the setting of the bond.”77 Indeed, one could argue that the text of the Convention supports the right of a flag state to initiate the prompt release procedure after 10 days and it is doubtful whether a court or tribunal should seek to construct a different reasonable period of time on the basis of abstract criteria. From this perspective, the defence would not offer much of a sanctuary to the coastal state. It is not only in situations where no bond has been set that the Convention provides a right to challenge the actions of the coastal state. Although it is up to the coastal state in the first instance to determine the level of the bond, Article 292 provides a procedure through which the reasonableness of a bond can be challenged by or on behalf of the flag state and the issue will be settled by ITLOS or another agreed forum.78 Determining a reasonable bond involves the balance of the interests of the coastal state and the flag state. There have been nine prompt release cases brought to the Tribunal to date and it has 74  M/V Virginia G case, note 11 at para. 284. See also para. 285: “The Tribunal observes that the practice of coastal states varies in this regard. In some coastal states the bond or other security is determined by the competent court on the basis of an application submitted by the owner or captain of a detained or arrested vessel. In other coastal states it is the executive branch that determines the bond or other security.” 75  Hoshinmaru case, ITLOS Judgment of 6 August 2007, ITLOS Reports 2005–2007 at 18, para. 80. 76  M/V Saiga case, note 70 at para. 77. 77  Hoshinmaru case, note 75, Declaration of Judge Tuerk, para. 3. 78  M/V Saiga case, note 70 at para. 77; Hoshinmaru case, note 75 at para. 65. See also ITLOS Rules of Procedure, Art. 113(2).

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therefore had an opportunity to develop a jurisprudence on what factors should be taken into account by coastal states when setting a reasonable bond. Amongst the relevant considerations are “the gravity of the alleged offences, the penalties imposed or imposable under the laws of the detaining state, the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining state and its form.”79 This is not a closed list of factors and the Tribunal has expressly stated that it does not “intend to lay down rigid rules as to the exact weight to be attached to each of them.”80 It is clear that the process of setting a bond involves a case-by-case analysis. Following the basic principle of evidence, the burden of showing that the bond is unreasonable should fall upon the applicant. What is less clear is what standard of review is being applied by the Tribunal. In this regard, the Rules of the Tribunal provide that:81 The Tribunal shall in its judgment determine in each case in accordance with article 292 of the Convention whether or not the allegation made by the applicant that the detaining state has not complied with a provision of the Convention for the prompt release of the vessel or the crew upon the posting of a reasonable bond or other financial security is well-founded. In the Juno Trader case, the Tribunal added that “[t]he assessment of the relevant factors must be an objective one, taking into account all information provided to the Tribunal by the parties.”82 The Tribunal has also stressed that it is not acting as a court of appeal.83 Rather, it would appear that the Tribunal considers itself as carrying out an exercise of judicial review, similar to the process of reviewing the necessity of enforcement measures against foreign fishing vessels. This suggests that there is a margin of appreciation for the coastal state in setting the level of the bond. Indeed, it can be argued that such a margin of appreciation is implicit in the notion of reasonableness itself.84 This is

79  Camouco case, ITLOS Judgment of 2 February 2000, ITLOS Reports 2000 at 10, para. 67. 80  Monte Confurco case, note 73 at para. 76. 81  ITLOS Rules of Procedure, ITLOS/8 (17 March 2009), Art. 113(1). 82  Juno Trader case, ITLOS Judgment of 18 December 2004, ITLOS Reports 2004 at 17, para. 85. 83  Monte Confurco case, note 73 at para. 89. 84  Camouco case, note 79, Declaration of Judge Laing.

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supported in the reasoning of Judge Anderson in the Camouco case, where he opined that:85 the local court should be accorded a wide discretion in fixing the amount of the security for release pending trial. In other words, national courts should be accorded a broad “margin of appreciation”. . . . In my view, it follows that an Applicant has to show very strong grounds for reducing the amount of the security fixed by a national court under local law in order to succeed under article 292. Yet, it is not always clear that the Tribunal has followed this approach in its jurisprudence. The Tribunal would appear to be willing to overturn the bond set by the coastal state without explaining in detail why it is unreasonable. In this regard, several judges have expressed dissatisfaction with the process, calling for greater clarity.86 Some judges have even gone as far as criticizing the Tribunal for rendering the right of the coastal state to take enforcement proceedings ‘an empty shell.’87 Unless the Tribunal exercises its power with caution, it is likely to upset the balance set out in the Convention and to undermine the sovereign rights of the coastal state. Not only has the Tribunal policed the amount of the bond that may be imposed by the coastal state, it has also determined what is meant by a bond in the context of Article 73(2). In the Volga case, the Tribunal held that:88 [T]he expression “bond or financial security” in article 73, paragraph 2, should, in the view of the Tribunal, be interpreted as referring to a bond 85  Ibid., Dissenting Opinion of Judge Anderson. See also Dissenting Opinion of Judge Wolfrum, paras. 11–14. 86  Ibid., Declaration of Judge Laing: “It is important that the Tribunal should carefully develop its jurisprudence on the issue of reasonableness”; see also Dissenting Opinion of Judge Wolfrum, para. 3: “The Judgment does not give appropriate guidance on what basis it assesses a bond set by national authorities, on what are the possible reasons to declare a national bond to be unreasonable and on what are the criteria it uses to determine the amount of the bond set by the Tribunal.” 87  Ibid., Dissenting Opinion of Judge Wolfrum, para. 8. See also para. 15: “If the bond set by the Tribunal is lower than the fines against the Master and the owners the French authorities will find it more difficult, if not impossible, to collect them. This means, in essence, that setting a bond which is too low—which is the case here—means that the enforcement rights of coastal state concerning its laws on the management of marine living resources in the exclusive economic zone have been curtailed.” 88  Volga case, ITLOS Judgment of 23 December 2002, ITLOS Reports 2002 at 10 para. 77.

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or security of a financial nature. [. . .] It follows from the above that the non-financial conditions cannot be considered components of a bond or other financial security for the purpose of applying article 292 of the Convention in respect of an alleged violation of article 73, paragraph 2 of the Convention. On this basis, the Tribunal concluded that “a ‘good behaviour bond’ to prevent future violations of the laws of a coastal state cannot be considered as a bond or security within the meaning of article 73, paragraph 2, of the Convention read in conjunction with article 292 of the Convention.”89 Thus, the requirement for the vessel to carry a vessel monitoring system pending the conclusion of the criminal proceedings was not permissible under the Convention.90 This is an important decision for the balance between coastal state and flag state interests because it demonstrates the constraints that are imposed on the coastal state in this context. In the Volga case, the Respondent also challenged the bail conditions imposed on the crew members. Initially, the crew members had been released from custody, but they had been required to surrender their passports and seaman’s papers to the Australian authorities and to stay within the Perth metropolitan area. After appealing these bail conditions, the crew concerned were permitted to return to Spain, but they were required to surrender their passports and seaman’s papers to the Australian embassy in Madrid, and they were also required to report monthly to consular officials. The Tribunal did not deal with this point in its decision.91 However, in light of its reasoning on the other aspects of the case, it is likely that any non-financial conditions attached to the release of the crew would also be contrary to the requirements of Article 73(2). Prompt Release in the Case of Environmental Offences The other situation in which the Convention expressly establishes an obligation of prompt release is in relation to environmental offences. There are two relevant provisions in the Convention, one of which has a more general application than the other. Firstly, Article 220(7) provides that where the coastal state has agreed to specific procedures for the release of a vessel upon payment of a bond in another instrument, it shall comply with these provisions. This provision does not

89  Ibid., para. 80. 90  However, see the dissenting opinions of Judge Anderson and Judge Ad Hoc Shearer. 91  Volga case, note 88 at para. 74.

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establish an independent obligation of prompt release,92 although it would allow the relevant states to utilize the mechanism in Article 292 for the purposes of enforcing prompt release procedures contained in other agreements.93 In contrast, Article 226(1)(b) does establish an obligation in relation to environmental offences whereby “release shall be made promptly subject to reasonable procedures such as bonding or other appropriate financial security.” This provision applies to proceedings for the enforcement of “applicable laws and regulations or international rules and standards for the protection and preservation of the marine environment”94 and it would therefore cover dumping and pollution offences.95 The crux of the provision is the determination of whether a bonding requirement imposed by the coastal state on the detained vessel is ‘reasonable.’ This is a similar requirement to Article 73(2) and it would also demand the balancing of coastal state and flag state interests. To date, there have been no cases brought on the basis of Article 226(1)(b) and therefore it is not entirely clear how it will be interpreted in practice. One key question that will arise is whether the bonding and financial security are just examples of ‘reasonable procedures’ and whether a coastal state could impose additional bonding requirements on vessels. As noted above, this interpretation has been rejected in relation to Article 73(1) of the Convention. Yet, the language in Article 226(1) (b) is noticeably different and it is possible that it could have a wider meaning.96 There are other important differences in the nature of the bonding process in relation to environmental offences. In this situation, prompt release is not an absolute right and a coastal state may refuse to release a vessel “whenever it would present an unreasonable threat of damage to the marine environment.”97 Alternatively, a coastal state may make release conditional upon the ship proceeding to the nearest appropriate repair yard to have work carried out to 92  See T. Treves, “The Proceedings Concerning Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea” (1996) 11 International Journal of Marine and Coastal Law 179–200, 183. 93  E.g. 1992 Convention on Civil Liability for Oil Pollution Damage, 1956 UNTS 255, Article VI(1)(b). 94  UNCLOS, note 1, Art. 226(1)(b). 95  Anderson, note 16 at 175. 96  As noted by the leading commentary on the Convention, it is possible that the language in Article 226(1)(b) was chosen in order to “avoid any technical legal connotation which different legal systems might attach to the word ‘bond’”; M. Nordquist et al. (eds), The United Nations Convention on the Law of the Sea 1982—A Commentary, vol. IV (Martinus Nijhoff Publishers, Dordrecht: 1991) 272. 97  UNCLOS, note 1, Art. 226(1)(c).

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make the vessel seaworthy. This power of the coastal state supports a broader reading of the notion of ‘reasonable procedures’ in Article 226(1)(b). At the same time, it must be noted that the decision of a coastal state to refuse to release the vessel or to make it conditional are also subject to challenge using the Article 292 procedure and it will be up to the relevant court or tribunal to decide whether the decision is ‘reasonable.’ As with the case of fisheries offences, it is suggested that the coastal state should be given a margin of appreciation and the court or tribunal should only intervene if the decision of the coastal state was not supported by any evidence or was arbitrary. In making such an assessment, a court or tribunal may also have to take into account the precautionary approach which implies that a further degree of deference should be given to the coastal state when there is uncertainty about the risks posed to the environment.98 Prompt Release for Other EEZ Offences? The question arises whether there is a more general right to prompt release following an arrest in the EEZ. In the M/V Saiga case, Saint Vincent and the Grenadines had suggested that “the applicability of article 292 to the arrest of a vessel in contravention of international law can also be argued, without reference to a specific provision of the Convention for the prompt release of vessels or their crews.”99 In making this argument, Saint Vincent and the Grenadines argued that “it would be strange that the procedure for prompt release should be available in cases in which detention is permitted by the Convention (articles 73, 220 and 226) and not in cases in which it is not permitted by it.”100 Given the broad interpretation of Article 73 adopted by the Tribunal in the M/V Saiga case, it was unnecessary for it to address this broader argument101 and therefore the issue remains open. In order to determine the validity of this argument, it is necessary to refer back to the text of Article 292. The key part of this provision would seem to be the reference to compliance with “the provisions of this Convention for the prompt release of a vessel or crew.” In other words, invocation of the Article 292 procedure would appear to be dependent upon the existence of 98  See the 1992 Rio Declaration on Environment and Development (“Rio Declaration”), 31 ILM 874 (1992), Principle 15: “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” 99  M/V Saiga, note 70 at para. 53. 100  Ibid., para. 53. 101  Ibid., para. 73.

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another provision for the prompt release of a vessel or crew.102 It follows that prompt release procedure has a limited applicability and it would not be available for all situations in which the coastal state has exercised its enforcement powers in relation to the EEZ.103 In particular, the prompt release procedure would not be available for the exercise of enforcement powers in relation to jurisdiction over marine scientific research or jurisdiction over artificial islands, installations and structures. At the same time, the limited availability of the prompt release procedure under Article 292 does not mean that the release of a vessel cannot be requested through alternative international dispute settlement procedures. In practice, states have sought to make requests for provisional measures in order to achieve this aim.104 In the M/V Louisa case, Saint Vincent and the Grenadines requested the Tribunal to “order the Respondent to release the vessel Louisa and its tender, the Gemini III, upon such terms and conditions as the Tribunal shall consider reasonable.”105 On the facts of the case, the Tribunal held that it was not appropriate to consent to the request.106 In contrast, in the Arctic Sunrise case, the Tribunal did find it appropriate to order the release of a vessel as a provisional measure. Indeed, what is striking about the decision is the parallel that can be drawn to the prompt release procedure. The Netherlands had requested, inter alia, that the Russian Federation be ordered:107

102  However, see, to the contrary, Treves, note 92 at 186: “. . . it would seem possible to resort to the prompt release procedure in other cases also. There are cases in which the Convention prohibits detention of ships and crews. If a vessel of its crew has been detained in contravention of the Convention which prohibits detention, it seems reasonable to hold that the most expeditious procedures available should be resorted to in order to ensure the release of the vessel or crew, independently of the question of international responsibility for the violation of the Convention.” However, this argument ignores that Article 292 refers to provisions of the Convention ‘for the prompt release of the vessel or crew’, not provisions of the Convention relating to detention. As noted below, the flag state could in these circumstances apply for the release of the vessel or crew as a provisional measure. 103  Anderson, note 16 at 169. 104  See Oxman, note 4 at 207; Anderson, note 16 at 177, noting that “the exact relationship of Article 290 (provisional measures) and Article 292 will have to be established by practice and precedent.” 105  M/V Louisa, ITLOS Order on Provisional Measures of 23 December 2010, ITLOS Reports 2008–2010 at 52, para. 33. 106  Ibid., para. 72. 107  Arctic Sunrise, Order of 22 November 2013, note 43 at para. 35.

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to immediately enable the ‘Arctic Sunrise’ to be resupplied, to leave its place of detention and the maritime areas under the jurisdiction of the Russian Federation and to exercise the freedom of navigation; to immediately release the crew members of the ‘Arctic Sunrise’, and allow them to leave the territory and maritime areas under the jurisdiction of the Russian Federation . . . Although the request did not make any mention of conditions attached to the release of the vessel and the crew, the Tribunal exercised its power to prescribe provisional measures that are different from those that are requested,108 affirming that “under article 290 of the Convention, it may prescribe a bond or other financial security as a provisional measure for the release of the vessel and the persons detained.”109 The Tribunal went on to set a bond of 3,600,000 euros. Not all judges accepted that an order for prompt release was an appropriate use of the power to prescribe provisional measures, however. Judge Jesus considered that the case represented a ‘back-door prompt release.’110 His particular concern was not related to the release of a vessel as a provisional measure per se, but rather to the conditioning of such a release on the posting of a reasonable bond.111 In addition, he observed that “a bond imposed as a condition for the release of vessel and crew in the framework of provisional measures, as in the present case, may not “preserve the rights” of the detaining state in cases in which the imposed or imposable penalties may involve imprisonment terms which, under the applicable domestic law, may not be convertible into a monetary penalty.”112 Judge Golitsyn was also critical of the decision of the Tribunal, arguing that “by ordering the release of the Arctic Sunrise and all detained members of its crew, upon posting of a bond or other financial security, the Tribunal completely disregarded the rights of the Russian Federation.”113 108  Ibid. para. 94. 109  Ibid., para. 93. The Netherlands had itself offered a bond in its communication with the Russian Federation; ibid., para. 91. 110  Arctic Sunrise, note 43, Separate Opinion of Judge Jesus, para. 7(b). 111  Ibid., para. 7(c). See also Dissenting Opinion of Judge Golitsyn, para. 49: “it is questionable whether the Tribunal can prescribe the release of the ship upon the posting of a reasonable bond under article 290, paragraph 5, of the Convention.” 112  Ibid., Separate Opinion of Judge Jesus, para. 11. See also Dissenting Opinion of Judge Kulyk, para. 14. 113  Ibid., Dissenting Opinion of Judge Golitsyn, para. 45.

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These arguments do bear some weight but the decision of whether or not to release a vessel must ultimately come down to a weighing and balancing the rights of either side to the dispute. Such a balancing process between the rights of the applicant and the respondent is inherent in the prescription of provisional measures, in the same way that it is in prompt release proceedings. Overall, there would appear to be good arguments to keep open the option for prompt release in the case of provisional measures proceedings. At the same time, it must be recognized that there are fundamental differences between the two procedures.114 First and foremost, there is no right to prompt release as a provisional measures. Rather, the decision to order a release or not will depend upon the outcome of the weighing and balancing process. Similarly, a weighing and balancing process will determine the amount of a bond associated with the release of the vessel. Moreover, it should also be noted that release as a provisional measure does not necessarily depend upon the posting of a bond and it is perfectly possible to order the release of a vessel as a provisional measure without any financial security at all.115 Again, this will depend upon the rights being exercised by the coastal state and the facts of a particular case.

Limits on Penalties to Be Imposed by Coastal State for EEZ Offences

Generally speaking, it is up to the authorities of a state to determine what is an appropriate punishment for a particular offence. As a matter of principle, states should be considered to have a broad discretion in this regard, subject to any express conditions imposed by international law. UNCLOS only contains provisions on this subject matter in relation to fisheries offences and environmental offences. Penalties for Fisheries Offences Article 73 deals with the powers of a coastal state to impose punishments for violations of fisheries laws and regulations if an offender is found guilty at trial. Firstly, it completely prohibits corporal punishment for fisheries o­ ffences.116

114  See ibid., Dissenting Opinion of Judge Kulyk, para. 12. 115  For example, the ARA Libertad case, ITLOS Order on Provisional Measures of 15 December 2012, ITLOS Reports 2012 at 332. 116  U NCLOS, note 1, Art. 73(3).

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Secondly, it restricts the use of imprisonment as a form of punishment without the agreement of the concerned state.117 Within the limits set by Article 73, coastal states clearly have some discretion as to the types of penalties that they may impose on fishing vessels which are found to have violated their laws and regulations. By way of example, ITLOS has confirmed that such penalties may include the confiscation of a fishing vessel, even though it is not explicitly mentioned by Article 73.118 At the same time, it was also noted that “confiscation of a fishing vessel must not be used in such a manner as to upset the balance of the interests of the flag state and of the coastal state established in the Convention.”119 In the words of the Tribunal, “such a decision [to confiscate] should not be taken in such a way as to prevent the shipowner from having recourse to available domestic judicial remedies, or as to prevent the flag state from resorting to the prompt release procedure set forth in the Convention; nor should it be taken through proceedings inconsistent with international standards of due process of law.”120 The reference to international standards of due process of law is significant as it introduces another general safeguard on the exercise of coastal state powers, extending protection beyond the outcome of proceedings to the actual process itself. Presumably, the reference would include international human rights provisions relating to the right to a fair trial. In other words, ITLOS has conferred on itself the power to step inside the courtroom and to determine 117  Anderson has argued that “paragraph 3 does not rule out imprisonment for willful refusal to pay a penalty imposed by a competent court”; Anderson, note 16 at 170. In the M/V Virginia G case, the Tribunal rejected the arguments put forward by Panama that confinement to the ship and the temporary holding of passports amounted to imprisonment, in violation of the Convention; M/V Virginia G case, note 12 at paras. 308, 310. See however, the Separate Opinion of Judge Lucky, para. 50 who says “the word ‘imprisonment’ in article 73, paragraph 3, must be given a wide and generous meaning. The meaning ascribed ought not to be that the individual must be sent to a prison and confined in cell. The term imprisonment means the restraint of a person contrary to his will; in other words it means a deprivation of one’s liberty. As to what will amount to imprisonment, the most obvious modes are confinement in a prison or private house (in this case a ship). In my view the crew were deprived of their right to liberty and freedom.” He does not explain, however, why the term imprisonment must be given a ‘wide and generous meaning’ and not its ‘ordinary meaning’ in light of the context and object and purpose, as required by Article 31(1) of the Vienna Convention on the Law of Treaties. 118  Tomimaru case, ITLOS Judgment of 6 August 2007, ITLOS Reports 2005–2007 at 74, para. 72. See also M/V Virginia G case, note 12 at para. 255. 119  Tomimaru case, note 118, para. 75. 120  Ibid., para. 76.

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whether national courts are complying with international human rights standards when trying fisheries cases. The Tribunal has also decided that penalties for fisheries offences must pass the necessity test included in Article 73(1).121 As noted above, the concept of ‘necessary’ is ambiguous and it should be applied with care to enforcement measures. This is particularly the case in relation to the imposition of penalties. In the M/V Virginia G case, the Tribunal applied the necessity test at two levels. Firstly, it applied the test to a penalty in the abstract. Thus, the Tribunal had to decide whether the confiscation of a vessel offering bunkering services to foreign vessels fishing in the EEZ was necessary.122 The Tribunal relied upon “the practice of coastal states on the sanctioning of violations of fishing laws and regulations”123 in order to determine that it was a necessary measure. Secondly, and more decisively, the necessity test was also applied to the concrete application of a penalty in a particular case.124 It is in this context that the Tribunal found, by a majority, that the confiscation of the M/V Virginia and the gas oil on board were not necessary, despite the fact that it accepted that the offence committed by the vessel was a ‘serious violation.’125 A number of ‘mitigating factors’126 were considered by the Tribunal in reaching this decision. In particular, it took into account the fact that Guinea-Bissau had been informed of the bunkering activities, even though the proper procedures for authorization had not been followed.127 It also took into account that the other vessels involved in the bunkering operations were not confiscated and it concluded that “the confiscation of the vessel and the gas oil on board in the circumstances of the present case was not necessary either to sanction the violation committed or to deter the vessels and their operators from 121  See M/V Virginia G case, note 11 at para. 257. See also Dissenting Opinion of Judge ad hoc Servulo Correia, para. 23: “The concept of ‘judicial proceedings’ is indeterminate. The practice of states shows that the expression ‘as may be necessary to ensure compliance with the laws and regulations . . .’ includes sanctions and that confiscation is one of them.” 122  M/V Virginia G case, note 11 at para. 257. The Tribunal noted that were confiscation the automatic remedy for all violations of its fisheries laws, it may have questioned the necessity of the measure. However, it recognized that the authorities had flexibility in deciding whether to confiscate the oil on board the vessel. 123  Ibid., para. 253. 124  Ibid., para. 257. 125  Ibid., para. 267. 126  Ibid., para. 268. 127  Ibid., para. 269. See however the dissenting opinion of Judge ad hoc Servulo Correia, para. 15; Declaration of Judge Gao, para. 30.

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repeating this violation.”128 In practice, the approach of the Tribunal appears to be closer to a proportionality test, given that the aims of the measure are weighed against the means through which they are carried out.129 The approach of the Tribunal can be seen as problematic in two ways. Firstly, it must be wondered whether the necessity test should be applied to penalties at all. As noted by Judge Kulyk in his declaration, enforcement measures should be distinguished from sanctions for offences.130 Secondly, the way in which the necessity was applied would seem to be too prescriptive, leaving little discretion to the coastal state. In their joint dissenting opinion, Vice President Hoffman and Judges Rao, Marotta Rangel, Kateka, Gao, and Bouguetaia stressed the importance of granting a margin of appreciation to the coastal state in making enforcement decisions in relation to fisheries offences and they criticized the Tribunal for having functioned more akin to an appellate authority.131 The dissenting judges suggested that the Tribunal should only exercise the power of review if “there is manifest error in the exercise of power or the exercise of power is manifestly arbitrary or if the power is exercised on the basis of facts which no not exist and which are patently erroneous.”132 Furthermore, in applying a reasonableness test to the facts of the case, they did not believe that the measures taken by Guinea-Bissau were contrary to the Convention.133 Judge ad hoc Servulo Correia came to a similar conclusion, finding that “[u]nder paragraph 1 of article 73, judicial deference is only excluded when it is manifest or absolutely clear that a less intrusive or onerous measure would have been equally suitable and effective in attaining

128  M/V Virginia G case, note 11 at para. 269. 129  For a discussion of the pros and cons of proportionality in international litigation, see e.g., M. Andenas and S. Zleptnig, “Proportionality: WTO Law in Comparative Perspective” (2007) 42 Texas International Law Journal 371; C. Henckels, “Indirect Expropriation and the Right to Regulate: Revisiting Proportionality Analysis and the Standard of Review in Investor-State Arbitration” (2012) 15 Journal of International Economic Law 223–255. More generally, see B. Pirker, Proportionality Analysis and Models of Judicial Review (Europa Law Publishing, Groeningen: 2013). 130  M/V Virginia G case, note 11, Declaration of Judge Kulyk, para. 9. A similar conclusion was reached by Judge Jesus, albeit on slight different grounds; Dissenting Opinion of Judge Jesus, paras. 17–20. 131  Ibid., Dissenting Opinion of Vice President Hoffman and Judges Rao, Marotta Rangel, Kateka, Gao, and Bouguetaia, para. 55. 132  Ibid., para. 54. 133  Ibid., paras. 56–57.

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the legal aim. But only in extreme cases is it possible to reach such a conclusion where the policy choices are of a discretionary nature.”134 Rather confusingly, alongside the necessity test, the Tribunal also applies a test of reasonableness to the sanctions imposed by Guinea Bissau in the M/V Virginia G case. The Tribunal explained, “the principle of reasonableness applies generally to enforcement measures under article 73 of the Convention.”135 It does not explain the origins of this principle. Furthermore, it is equally not clear what content is given to the reasonableness standard employed by the Tribunal in this context. Even when applying a reasonableness test, the Tribunal also fails to give any margin of appreciation to the coastal state. In doing so, the Tribunal arguably tips the balance in favour of the interests of the flag state and it undermines the sovereign nature of the rights possessed by the coastal state in relation to fisheries in the EEZ. Penalties for Vessel-Source Pollution Offences in the EEZ The scope for the coastal state to impose penalties in relation to vessel-source offences is even more limited than in relation to fisheries. The Convention provides that in this situation, “monetary penalties only may be imposed.”136 Thus, the Convention prescribes a single penalty that may be applied to environmental offences. At the same time, it would not appear that the Convention limits the discretion of states in setting appropriate monetary penalties. It has been noted in a slightly different context that “the Convention does not put a limit on the amount of fines against violators a coastal state may consider appropriate.”137 Indeed, related international treaties encourage states to set penalties that are “adequate in severity to discourage violations” in the future.138 Even if one were to imply a general test of reasonableness in relation to penalties for environmental offences, there should be a wide margin of appreciation given to the coastal state in this matter. The Convention also requires that proceedings in which a penalty may be imposed must be respect ‘the recognized rights of the accused.’139 134  Ibid., Dissenting Opinion of Judge ad hoc Servulo Correia, para. 21. 135  M/V Virginia G case, note 11 para. 270. 136  U NCLOS, note 1, Art. 230(1). 137  Camouco case, note 79, Dissenting Opinion of Judge Wolfrum, para. 6. See also Dissenting Opinion of Judge Anderson. 138  International Convention for the Prevention of Pollution from Ships (MARPOL), 1340 UNTS 184, Art. 4(4). 139  U NCLOS, note 1, Art. 230(3).

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The Convention does not specify what these rights are, although it can be argued that a court or tribunal would interpret this provision in light of the international human right to a fair trial.140 Indeed, there has been a growing concern at the international level with the treatment of crew of a vessel during investigations by the coastal state, due to certain high-profile incidents. In response, the IMO has adopted Guidelines on Fair Treatment of Seafarers in the event of a Maritime Accident.141 This instrument could also be used by the Tribunal as a source of inspiration to give content to the safeguards for seafarers charged with environmental offences.

International Review of Coastal State Enforcement Powers

It has been seen in the preceding analysis that the Convention seeks to establish a delicate balance between the power of coastal states to protect its sovereign rights interests in the EEZ and the freedom of navigation of foreign ships in that zone. Many of these safeguards use concepts such as necessity or reasonableness in order to determine when it is legitimate for a coastal state to exercise enforcement powers in the EEZ. It has been argued throughout this paper that the concept of sovereign rights implies that the coastal state should have a degree of deference in deciding whether to take enforcement action. Nevertheless, the discretion of a coastal state cannot be unlimited and the safeguards in the Convention provide an important check against the excessive exercise of enforcement powers in a way that would undermine the rights and interests of other states. However, the effectiveness of these safeguards also depends upon the availability of an international court or tribunal to intervene when it was alleged that a coastal state had exceeded its powers. UNCLOS is well-known for its dispute settlement procedure. Generally speaking, any party can bring a claim against another party to the Convention if a dispute exists between them, provided that they satisfy certain procedural prerequisites.142 Where such a procedure exists, the safeguards pro-

140  According to the leading commentary on the text, “guidance may be found in the Universal Declaration of Human Rights of 1948 and the International Covenant on Civil and Political Rights of 1966, as well as in other global and regional instruments dealing with human rights, regarding the concept of ‘fair trial’ and the rights of an accused person”; Nordquist, note 96 at 370. 141  I MO Resolution LEG.3(91), adopted on 27 April 2006. 142  U NCLOS, note 1, Art. 287.

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vide an effective mechanism to uphold the balance of rights inherent in the Convention regime.143 Nevertheless, not all states were willing to submit all issues to international adjudication and a number of mandatory and optional exceptions are included in Articles 297 and 298 of the Convention respectively. The optional exceptions from the compulsory dispute settlement proceedings include “disputes concerning law enforcement activities in regard to the exercise of sovereign rights excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3.”144 Although these exclusions must be explicitly claimed by a party to the Convention, many states have done so in practice.145 Therefore, it serves to shelter enforcement actions covered by the exclusion from international scrutiny and it undermines the effectiveness of the safeguards. The cross-reference in this provision to Article 297(2) and (3) covers disputes concerning the law enforcement activities in relation to marine scientific research and fisheries. It follows that it would not be possible to initiate proceedings relating to the enforcement powers of coastal states in relation to fishing and marine scientific research, if it had invoked these exceptions to compulsory dispute settlement under the Convention. In contrast, disputes concerning enforcement activities in relation to environmental offences or offences committed in the safety zone of an artificial island, installation or structure would not fall within the scope of this exclusion.146 It follows that there is more likelihood that these safeguards will be enforceable in practice and they will prove a more effective limit on the powers of the coastal state in the EEZ.

143  Franckx, note 5 at 324. 144  U NCLOS, note 1, Art. 298(1)(b). 145  For a list of states which have taken up the optional exclusion under Art. 298(1)(b) UNCLOS, see . 146  See e.g. Arctic Sunrise, note 43 at para. 45: “in the view of the Tribunal, the declaration made by the Russian Federation with respect to law enforcement activities under article 298, paragraph 1(b), of the Convention prima facie applies only to disputes excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3, of the Convention.” Thus, the Tribunal implied that this exclusion could not be invoked in a case involving jurisdiction over an artificial installation in the EEZ.

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Conclusion This paper has demonstrated the range of safeguards that apply to coastal states when exercising their enforcement powers in the EEZ. Some of these safeguards are procedural in nature, such as the duty to inform the flag state when a vessel is arrested. However, some of the safeguards go to the core of what action a coastal state may take to enforce its national laws and regulations in the EEZ. This is particularly the case with the limitations on what enforcement measures may be taken and what penalties may be imposed. The safeguards are important because they prevent the coastal state from using their EEZ powers to infringe upon legitimate freedom of navigation. At the same time, it is necessary to ensure that the safeguards are not interpreted too strictly, otherwise the powers of the coastal state in the EEZ will be undermined. Thus, many of the safeguards involve some sort of balancing exercise, which takes into account both interests of the coastal state and the flag state. It is clear that international courts and tribunals have played a key role in carrying out this balancing process when interpreting and applying the various safeguard provisions in the Convention. Yet, the jurisprudence demonstrates that there is still some disagreement on precisely how this balance should be struck. In particular, there is no consensus on how much discretion should be given to coastal states in deciding what enforcement measures should be taken against foreign vessels in their EEZ. This is clearly an issue where the decisions of the Tribunal have been lacking in clarity and there is scope for the jurisprudence to develop further. The present author takes the view that the Tribunal has sometimes gone too far in its scrutiny of coastal state enforcement and it should give a broader margin of appreciation in deciding whether EEZ enforcement action is reasonable, appropriate or necessary for the purposes of the Convention. This view not only better reflects the nature of the rights and jurisdiction possessed by the coastal state in this zone, but it also prevents international courts and tribunals from stepping beyond their judicial role and substituting their own decisions for those of the coastal state authorities.

CHAPTER 10

New Maritime Zones and the Law of the Sea Erik J. Molenaar Introduction The international law of the sea is one of the oldest parts of public international law and has been—like all parts of public international—in a state of flux due to the changing needs, interests and opinions of the international community triggered by, for instance, technological, demographical and environmental developments, scarcity of resources and shifting views on how resources should be shared equitably. Maritime zones are an important feature of the evolution of the international law of the sea. Powers that were able to claim and exercise effective control over large expanses of water—such as the Romans in the Mediterranean Sea (mare nostrum)—eventually had to give way to the prevailing preference for a regime based on the freedom of the seas as advocated by Grotius.1 Particularly in the 20th century, however, this regime was increasingly eroded by the phenomenon of ‘creeping coastal State jurisdiction’, which led to expanded coastal State authority both substantively and geographically (further seaward), including through the establishment of various new coastal State maritime zones.2 Various phases of efforts to codify and progressively * Deputy Director, Netherlands Institute for the Law of the Sea, Utrecht University & Professor, K.G. Jebsen Centre for the Law of the Sea, University of Tromsø; email: [email protected]. Writing this chapter was made possible by funding from the Netherlands Polar Programme and the EU’s COST Action IS1105 ‘NETwork of experts on the legal aspects of MARitime SAFEty and security (MARSAFENET)’. The author is very grateful for assistance and/or comments received by Gemma Andreone, Robin Churchill, Miguel Garcia, Carlos Hernandez Salas, Alex Oude Elferink, Seamus Ryder, Tullio Scovazzi, Tullio Treves and Davor Vidas on an earlier version. 1  H. Grotius “Mare liberum sive de iure quod Batavis competit ad Indicana commercia, disserta­ tio” (“The Freedom of the Seas or The Right Which Belongs to the Dutch to Take Part in the East Indian Trade” (1609), translated by R. Van Deman Magoffin (1916). 2  See R.Y. Jennings, “A Changing International Law of the Sea”, 31 Cambridge Law Journal 32–49 (1972), at 34–36; and E. Franckx, “The 200-mile Limit: Between Creeping Jurisdiction and Creeping Common Heritage”, 48 German Yearbook of International Law 117–149 (2005), at 119 and 125–130. In spite of its title, B.H. Oxman, “The Territorial Temptation: A Siren Song at Sea”,

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004303508_011

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develop the international law of the sea eventually led to the 1982 United Nations Convention on the Law of the Sea (UNCLOS),3 which will function as the main benchmark in this chapter. Meaning of ‘New’ The objective of this chapter is to examine state practice on the establishment of new maritime zones, including its consistency with the UNCLOS. For the purpose of this chapter, ‘new’ maritime zones are maritime zones that (i) are not mentioned in the UNCLOS and (ii) were also not part of customary international law upon the UNCLOS’ entry into force in 1994. Exclusive fishery zones (EFZs),4 for instance, are not included in the UNCLOS but secured increasingly wider support after the 1945 Truman Coastal Fisheries Proclamation.5 Well before the entry into force of the UNCLOS—probably by the early 1970s—a coastal State’s entitlement to sovereign rights and jurisdiction for fisheries purposes within a 200 nautical mile (nm) EFZ had crystallized into customary international law. EFZs are therefore not regarded as new maritime zones in this chapter. While the precise implications of China’s so-called nine-dashed-line—or its ten-dashed-line declared in June 2014—in the South China Sea for China’s claim to sovereignty, sovereign rights and jurisdiction over land territory and waters therein are uncertain, it seems that China does not claim a new maritime zone as defined above. Rather, the marine area within the nine- or ten-dashed-lines are either internal waters—whether by means of historic title or otherwise—, territorial sea, continental shelf or exclusive economic zone (EEZ).6 Finally, some States use the term ‘territorial waters’ in their domestic legal framework to denote the waters consisting exclusively of internal waters— whether exclusively marine or also freshwater—or internal waters and the

100 American Journal of International Law 830–851 (2006), also examines creeping coastal State jurisdiction, and has both a geographic and a substantive balance. 3  United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982. In force 16 November 1994, 1833 United Nations Treaty Series 396; . 4  Or Exclusive Fisheries/Fishing Zone, Fishing/Fisheries Zone (FZ). 5  Proclamation 2668, ‘Policy of the United States With Respect to Coastal Fisheries in Certain Areas of the High Seas’, 28 September 1945; available at . 6  See the Chinese Notes Verbales No. CML/17/2009, of 7 May 2009 (including map with the nine-dashed-line) and No. CML/8/2011, of 14 April 2011 (available at DOALOS website, note 28 infra).

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territorial sea combined.7 While territorial waters do not appear as a maritime zone in the UNCLOS or the 1958 Geneva Conventions8—even though it appears in older international instruments like the Spitsbergen Treaty9—such state practice is not inconsistent with the UNCLOS as such. Meaning of ‘Maritime Zones’ Also for the purpose of this chapter, ‘maritime zones’ first of all are limited to zones generated by a sea-coastline; therefore not zones in freshwater lakes (e.g. the North American Great Lakes and Lake Victoria), fully enclosed saltwater lakes or seas not connected to another sea or ocean (e.g. the Aral and Dead Seas), as these waters are generally accepted not to be subject to the international law of the sea.10 The prevailing view is that the same applies to the Caspian Sea.11 Second, a maritime zone is regarded to belong to one of the following two categories: coastal State maritime zones on the one hand and so-called areas beyond national jurisdiction—namely the high seas and the Area—on the other hand. For the purpose of this article, the high seas consist of the water column seaward of territorial seas or—if established—EEZs or other 200 nm maritime zones consistent with international law.12 The Area consists of the seabed and ocean floor and subsoil thereof seaward of coastal States’ continental shelves.13 Restricting maritime zones for the purpose of this chapter to these two categories excludes the wide range of essentially issue-specific multilateral area designations, whether by international bodies or not, that 7   E.g. Act No. 57, of 27 June 2003, on Norway’s Territorial Waters and Contiguous Zone. 8   The International Law Commission (ILC) opted for the term territorial sea in its 1956 ‘Articles concerning the law of the sea’ (see the ‘Commentary to the articles concerning the law of the sea’, Yearbook of the International Law Commission 1956, Vol. II, 265. 9   Treaty concerning the Archipelago of Spitsbergen, Paris, 9 February 1920. In force 14 August 1925; 2 League of Nations Treaty Series 7 (1920). See Art. 2. 10  See also Art. 122 of the UNCLOS. 11  The ‘Table recapitulating the status of the Convention and of the related Agreements, as at 10 October 2014’ (available at DOALOS website, note 28 infra) lists Azerbaijan, Kazakhstan and Turkmenistan as land-locked States although they border on the Caspian Sea. 12  The UNCLOS does not contain a definition for the high seas, unlike the 1958 Geneva Convention on the High Seas (HS Convention; 29 April 1958. In force 30 September 1962, 450 United Nations Treaty Series 11; ). See note 26 infra and accompanying text. Note the contradictory phrases “on the bed of the high seas” in Art. 112(1) of the UNCLOS and “beneath the high seas” in its Articles 113 and 114. 13  Art. 1(1) of the UNCLOS.

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are in existence today. Examples are (a) whale sanctuaries established by the International Whaling Commission; (b) marine protected areas (MPAs) established by the Commission for the Conservation of Antarctic Marine Living Resources; (c) emission control areas established by the International Maritime Organization (IMO)’s Marine Environment Protection Committee; (d) regional, treaty-based search and rescue (SAR) regions;14 and (e) LongRange Identification and Tracking (LRIT) zones of a maximum width of 1,000 nm off coasts in which coastal States are entitled to receive certain information relating to ships navigating therein. Also not regarded as maritime zones for the purpose of this chapter are area designations by coastal States aimed at implementing relatively specific rights or obligations under international law, for instance the multilateral issue-­ specific area designations just discussed or similar unilateral issue-­specific area designations. Rather than constituting claims to maritime zones and jurisdiction, such area designations can be presumed to merely implement or apply international law, unless proven otherwise. In light of the characteristics of the maritime zones incorporated in the UNCLOS, maritime zones only qualify as such for the purpose of this chapter if they are clearly defined in spatial terms by means of certain distances from (adjacent) land territory, enclosure by land territory or adjacency to other maritime zones. This condition is, for instance, not met by Canada’s claim to enforcement jurisdiction over foreign vessels targeting straddling fish stocks in an unspecified area of (adjacent) high seas, which culminated in the arrest of the Spanish-flagged fishing vessel Estai in 1995.15 Despite domestic calls in the mid-2000s to claim so-called ‘custodial management’ over fisheries resources 14  E.g. those specified in the Annex to the Arctic SAR Agreement (Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic, Nuuk, 12 May 2011. In force 19 January 2013; 50 International Legal Materials 1119; also available at ) and the disclaimer in Art. 3(2) of the Agreement. 15  See S. 5.2 of Canada’s Coastal Fisheries Protection Act (R.S.C., 1985, c. C-33) in conjunction with S. 21(2)(b)(ii) and Table III of its Coastal Fisheries Regulations (C.R.C., c. 413). Canada’s jurisdictional claim has—to some extent—been addressed by the inclusion of non-flag State enforcement powers in Articles 21 and 22 of the Fish Stocks Agreement (Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995. In force 11 December 2001, 2167 United Nations Treaty Series 3; DOALOS website, note 28 infra). Also, Canada has not withdrawn a relevant reservation to its acceptance of the compulsory jurisdiction of the ICJ so far (Declaration of 10 May 1994, under (2)(d); available at ).

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on the nose and tail of the Grand Banks of Newfoundland and the Flemish Cap,16 Canada eventually agreed to commence a negotiation-process to modernize the 1978 NAFO Convention.17 Finally, some area designations by coastal States should be regarded as spheres of interest or influence instead of maritime zones defined here. This will be the case when coastal States do not exercise jurisdiction related to the area or challenge the rules and procedures on outer limits of coastal State maritime zones laid down in the UNCLOS. For instance, while the Russian Federation’s reliance on the sector principle or theory in the Arctic may have had some relevance for its maritime boundaries with Norway and the United States, the Russian Federation has so far respected the rules and procedures on outer limits contained in the UNCLOS.18 It will be interesting to see, however, if this remains unchanged with regard to the Russian Federation’s future actions concerning its currently still unfinished procedure before the Commission on the Limits of the Continental Shelf (CLCS) in relation to the geographic North Pole. The next section of this chapter gives a short account of the evolution of existing maritime zones. The analysis of new maritime zones in the following section is done as much as possible in a chronological order, even though the last subsection is devoted to new maritime zones beyond 200 nm from baselines. The chapter ends with a summary and conclusions.

Existing Maritime Zones

Once the proposition of mare liberum had become generally accepted by the international community in the 17th century, there were in principle three 16  E.g. Custodial Management Outside Canada’s 200-Mile Limit, Report of the Standing Committee on Fisheries and Oceans, March 2003, at 9 (Recommendation 1). However, the report ‘Breaking New Ground. An Action Plan for Rebuilding The Grand Banks Fisheries, Report of the Advisory Panel on the Sustainable Management of Straddling Fish Stocks in the Northwest Atlantic’, June 2005, eventually did not support this option. 17  Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, Ottawa, 24 October 1978. In force 1 January 1979, 1135 United Nations Treaty Series 369; . The ‘new’ NAFO Convention was adopted in 2007 (Lisbon, 28 September 2007; NAFO/GC Doc. 07/4) but had not yet entered into force at the time of writing. 18  A.G. Oude Elferink “Does Recent Practice of the Russian Federation Point to an Arctic Sunset for the Sector Principle?” in S. Lalonde and T. McDorman (eds) International Law and Politics of the Arctic Ocean; Essays in Honour of Donat Pharand (Brill/Nijhoff, Leiden: 2015), 269–290.

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types of maritime zones: (i) internal waters (including historic bays and other historic waters); (ii) a coastal zone without a uniform width or juridical status, which eventually became the territorial sea due to its inclusion in the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone (TSCZ Convention), even though then without an agreed maximum width;19 and (iii) the high seas. Subsequently, state practice on specific enforcement powers beyond this coastal zone/territorial sea eventually crystallized into an entitlement to a contiguous zone under customary international law, which was then codified in Article 24 of the TSCZ Convention; at that time with a maximum width of 12 nm.20 Soon after the 1945 Truman Continental Shelf Proclamation,21 a coastal State’s entitlement to a continental shelf became part of customary international law and was subsequently codified in the 1958 Geneva Convention on the Continental Shelf (CS Convention),22 with a rather unclear outer limit.23 The inability of the first United Nations Conference on the Law of the Sea (UNCLOS I) to agree on a maximum breadth of the territorial sea and the nature and extent of special coastal State rights over fish stocks adjacent to their territorial seas,24 led to the convening of the second United Nations Conference on the Law of the Sea (UNCLOS II) in 1960. UNCLOS II did not have an agreed outcome even though a compromise proposal for a six nm territorial sea and a six nm fishing zone failed by just one vote. 12 nm EFZs nevertheless gained increasingly further ground in state practice in the 1960s.25

19  Geneva, 29 April 1958. In force 10 September 1964, 526 United Nations Treaty Series 205; . 20  H. Caminos “Contiguous Zone” Max Planck Encyclopedia of Public International Law (March 2013). 21  Proclamation 2667, ‘Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf’, 28 September 1945; available at . 22  Geneva, 29 April 1958. In force 10 June 1964, 499 United Nations Treaty Series 311; . 23  Ibid., Art. 1. 24  Coastal States eventually found the rights laid down in Articles 6–7 and 13 of the HS Fisheries Convention (Convention on Fishing and Conservation of the Living Resources of the High Seas (Geneva, 29 April 1958. In force 20 March 1966, 559 United Nations Treaty Series 285; ) and Art. 2(4) of the CS Convention to be inadequate. See also the 1956 ILC Commentary, note 8 supra, at 286–293. 25  D.R. Rothwell and T. Stephens The International Law of the Sea (Hart Publishing, Oxford/ Portland: 2010), at 9–10.

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Article 1 of the 1958 Geneva Convention on the High Seas (HS Convention)26 defined the high seas as “all parts of the sea that are not included in the territorial sea or in the internal waters of a State”. The prospect of exploitation of non-living resources of the deep sea-bed beyond continental shelves then triggered a debate on the desirability of a distinct regime for the deep seabed. Following the famous Pardo speech in 1967, the United Nations General Assembly (UNGA) took a number of steps which eventually established ‘the Area’ as a distinct maritime zone from the high seas at least as from 1970.27 The third United Nations Conference on the Law of the Sea (UNCLOS III) formally commenced in 1973 among widespread but diverging state practice on claims to breadths of territorial seas and EFZs. An early proposal at UNCLOS III for a 200 nm EEZ soon made its way into state practice and at least its general aspects had already become part of customary international law before the end of UNCLOS III. Nothing in general international law suggests that the new customary right to an EEZ affected the pre-existing right to an EFZ. In line with the principle in maiore stat minus (who can do more can also do less), some coastal States continue to claim only EFZs. Others first established an EFZ and later also established an EEZ for the same waters, without revoking the EFZ (e.g. the Netherlands).28 While this approach can be preferred for domestic legislative reasons, from the perspective of international law such a coastal State is best categorized as having established an EEZ, as this is the more comprehensive zone. Coastal States may also decide to establish an EEZ adjacent to part of their territory and an EFZ to another part. Norway, for instance, has established an Economic Zone (a de facto EEZ) off its mainland, a Fishery Zone (a de facto EFZ) off Jan Mayen, a Fisheries Protection Zone (FPZ) off Svalbard (see below), but no 200 nm maritime zones at all off its (claimed) territories in the Southern Ocean and Antarctica.29 The vertical extent of the EEZ was agreed to comprise the sea-bed as well as its subsoil, while the horizontal extent of the continental shelf can stretch in certain circumstances also beyond 200 nm pursuant to Article 76 of the UNCLOS. This area, which has become known as the ‘extended’ or ‘outer’

26  See note 12 supra. 27  U NGA Resolution 2749 (XXV), of 17 December 1970. 28  See the ‘Table of claims to maritime jurisdiction (as at 15 July 2011)’, at DOALOS website (). See also Spain’s practice in note 42 infra. 29  These are Bouvet Island (north of 60º South), Peter I Island and Queen Maud Land (both south of 60º South). See also the Maritime Claims Table in note 28 supra.

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continental shelf, can be regarded as a distinct maritime zone because its regime is not identical to that within 200 nm.30 Finally, another new maritime zone introduced during UNCLOS III are archipelagic waters. Only a State that qualifies as an archipelagic State is entitled to designate waters enclosed by archipelagic baselines drawn in accordance with the UNCLOS, as archipelagic waters. These waters then become part of that State’s territory and subject to its sovereignty.31

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Fisheries Protection Zone off Svalbard While Norway established a 12 nm Fishery Zone off its mainland and Jan Mayen in 1966, no such zone was established off Svalbard.32 On 1 January 1977, Norway’s 200 nm Economic Zone (a de facto EEZ) off its mainland came into effect,33 followed by a 200 nm FPZ off Svalbard later in 197734 and a 200 nm Fishery Zone (a de facto EFZ) off Jan Mayen in 1980.35 The jurisdiction claimed by Norway in the FPZ off Svalbard relates exclusively to fisheries36 and there30  See, for instance, Articles 82 and 246(6) of the UNCLOS and the fact that the freedom of high seas fishing exists above the outer continental shelf. However, in its Judgment in the Bay of Bengal case (Dispute concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012), the International Tribunal for the Law of the Sea (ITLOS) ruled that Art. 76 of the UNCLOS “embodies the concept of a single continental shelf”. 31  Articles 2, 46–47 and 49 of the UNCLOS. 32  Act No. 19, of 17 June 1966, ‘relating to Norway’s fishery limit and to the prohibition against fishing etc. by foreign nationals within the fishery limit’, Sec. 1. 33  Regulations of 17 December 1976, No. 15, ‘on the implementation of the Economic Zone. Delegation of authority’, effective from 1 January 1977. These Regulations were adopted pursuant to the Act of 17 December 1976, No. 91, ‘relating to Norway’s economic zone’, as amended. 34  Regulations of 3 June 1977, No. 6, ‘relating to a fisheries protection zone around Svalbard’, as amended, established pursuant to Sec. 5 of the 1976 EEZ Act, note 33 supra. The English translation of Sec. 5 of the original text of the Act (available at DOALOS website, note 28 supra) stipulates: “Prior to the implementation of the Norwegian economic zone, the King may, for areas referred to in paragraph 1, lay down interim provisions for the protection of fish stocks, for the limitation of foreign fishing and for the rational and proper conduct of fishing activities.” 35  Regulations of 23 May 1980, No. 4, ‘establishing the fishing zone around Jan Mayen. Delegation of authority’. 36  Sec. 1 of the 1977 Regulations, note 34 supra.

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fore relies on the customary right to an EFZ. Norway’s choice for an FPZ instead of an EFZ was motivated by the diverging views among States on the spatial scope of the Spitsbergen Treaty. The Treaty was adopted in 1920—well before the start of the process of creeping coastal State jurisdiction—and, as already mentioned, only refers to ‘territorial waters’. This raised the question as to how Norway’s absolute sovereignty over Svalbard accorded by the Treaty, as well as the rights of equal access and non-discrimination accorded to all parties, should be interpreted in the light of the evolution of coastal State entitlements to new maritime zones under international law since the Treaty’s adoption in 1920. Norway takes the position that the Treaty does not apply seaward of the outer limit of the territorial sea. According to Norway, the usual law of the sea regime applies seaward thereof and entitles Norway to a continental shelf and EEZ and their associated sovereign rights and jurisdiction. No other parties to the Treaty support Norway’s position, however, and an important number of them take the view that Svalbard generates—or can generate—all the usual coastal State maritime zones but that the Treaty applies to all of these. In view of these different positions, Norway established a FPZ off Svalbard—while insisting on its right to establish an EEZ (or EFZ)—and has granted certain allocations of fishing opportunities to a limited number of parties, largely based on historic track records.37 The Supreme Court of Norway never made a determination on the Treaty’s spatial scope so far, even though it had several opportunities to do so. Most recently, in the Kiel case, both the District Court of Nord-Troms38 and the Court of Appeals of Hålogaland39 ruled that the Treaty does not apply beyond Svalbard’s territorial waters. When a ruling from the Supreme Court was also sought, however, the Supreme Court decided to reverse the order of the questions put before it. Rather than first ruling on the Treaty’s spatial scope—as the two other courts had done in the same case—it decided to first give a ruling on the question as to whether or not the specific regulations alleged to have been violated were discriminatory, and would thereby be inconsistent with the Treaty if the Treaty would also be applicable beyond Svalbard’s territorial

37  For a discussion see E.J. Molenaar “Fisheries Regulation in the Maritime Zones of Svalbard” (2012) 27 International Journal of Marine and Coastal Law 3–58. 38  Judgment of 10 December 2012 in Case No. 12-141874MED-NHER. 39  Judgment of 7 July 2013 in Case No. 13-050194AST-HALO.

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waters.40 As the Supreme Court ruled that the regulations were not discriminatory, it thereby also avoided a ruling on the Treaty’s spatial scope.41 Based on the above, it can be concluded that the FPZ established by Norway off Svalbard is a new maritime zone as defined in this chapter. It relies on the customary right to an EFZ but also takes account of the diverging views among States on the spatial scope of the Spitsbergen Treaty. In view of the uniqueness of the situation—in particular the fact that sovereignty over Svalbard was granted by, and subject to, the Spitsbergen Treaty—no other coastal States will feel compelled or have an incentive to establish a similar maritime zone off part or all of their territory. While several other coastal States have also established FPZs, for instance Spain in 1997 relating to most of its coast in the Mediterranean Sea,42 and Libya in 2005,43 their enactments show that they are really de facto EFZs.44

40  See the posts by I. Dahl and T. Henriksen on the Blog of the K.G. Jebsen Centre for the Law of the Sea at . 41  Judgment of 21 March 2014 in HR-2014-00577-A, (Case No. 2013/1772). 42  Royal Decree No. 1315/1997, of 1 August 1997, ‘establishing a Fisheries Protection Zone in the Mediterranean Sea’ (Boletín Oficial del Estado No. 204, of 26 August 1997; as amended; English translation available at DOALOS website, note 28 supra). In 2013, Spain also established an EEZ off its coast in the Mediterranean Sea (Royal Decree No. 236/2013, of 5 April 2013, ‘establishing the Exclusive Economic Zone of Spain in the northwestern Mediterranean’ (Boletín Oficial del Estado No. 92, of 17 April 2013)) but without formally revoking its FPZ. Neither the FPZ nor the EEZ apply to the Spanish coast in the Alboran Sea. 43  Pursuant to the ‘Declaration of a Libyan Fisheries Protection Zone in the Mediterranean Sea’, of 24 February 2005 (English translation available at DOALOS website, note 28 supra). Whereas Libya also proclaimed an EEZ in 2009 (‘General People’s Committee Decision No. 260 of A.J. 1377 (AD 2009) concerning the declaration of the exclusive economic zone of the Great Socialist People’s Libyan Arab Jamahiriya’, of 27 May 2009 (English translation available at DOALOS website, note 28 supra), its FPZ was not revoked. 44   See also C. Chevalier Governance of the Mediterranean Sea. Outlook for the Legal Regime (Málaga (Spain), IUCN-Med: 2005), 45–46. In 2002, the European Commission encouraged other EU Member States to establish FPZs for their Mediterranean coasts (Communication from the Commission to the Council and the European Parliament laying down a Community Action Plan for the conservation and sustainable exploitation of fisher­ ies resources in the Mediterranean Sea under the Common Fishery Policy, COM (2002) 535 final, of 9 October 2002, at 14), but no other EU Member States have so far done this.

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200 NM Zones off British Overseas Territories The diversity of the United Kingdom’s practice with respect to 200 nm zones is in part a result of the fact that it has (claimed) territory in all oceans except the Arctic Ocean. While the United Kingdom only established an EEZ off its metropolitan territory in the North Atlantic in 2013 (North Atlantic EEZ),45 it had already established an EEZ off Pitcairn, Henderson, Ducie and Oeno Islands in the Pacific in 1997.46 Except for its overseas territories discussed below, most of its overseas territories have a 200 nm EFZ. Prior to the establishment of its North Atlantic EEZ, it claimed off its metropolitan territory: (a) a 200 nm EFZ;47 (b) jurisdiction to control dumping of waste;48 (c) jurisdiction over marine scientific research up to 200 nm;49 (d) jurisdiction over vessel-source pollution pursuant to Part XII of the UNCLOS in the so-called ‘controlled waters’ above its continental shelf up to 200 nm;50 (e) jurisdiction over the exploration and exploitation of offshore energy production in the so-called ‘Renewable Energy Zone’ which also went out to 200 nm;51 and (f) a 200 nm gas importation and storage zone.52 All these issue- or sector-specific maritime zones and jurisdictional claims relied on the customary status of EFZs and EEZs, the United Kingdom’s accession to the UNCLOS in 1997, and the principle in maiore stat minus. All North Atlantic zones and claims were revoked upon the coming into force of the North Atlantic EEZ, which thus amounts to a major simplification. Some special maritime zones are nevertheless maintained off some British overseas territories. As regards South Georgia and the South Sandwich Islands, a 200 nm ‘Maritime Zone’ was established in 1993.53 Within the Maritime Zone, the United Kingdom claims some, but not all, of the sovereign rights 45  Pursuant to ‘The Exclusive Economic Zone Order 2013’, of 11 December 2013, Statutory Instruments 2013 No. 3161. In force on 31 March 2014 (available at DOALOS website, note 28 supra). 46  Proclamation No. 1, of 28 November 1997, ‘establishing an Exclusive Economic Zone (Pitcairn, Henderson, Ducie and Oeno Islands)’. 47  Fishery Limits Act, 1976. 48  Food and Environment Protection Act, 1985, Part II, as amended by the Environmental Protection Act 1990, S. 146. 49  See National Legislation, Regulations and Supplementary Documents on Marine Scientific Research in Areas under National Jurisdiction (UN/DOALOS: 1989), at 270. 50  Merchant Shipping (Prevention of Pollution) (Law of the Sea Convention) Order 1996, S.I. No. 282. 51  S. 84 of the Energy Act, 2004. 52  S. 32 of the Energy Act, 2008. 53  Proclamation (Maritime Zone) No. 1, of 1993 (available at DOALOS website, note 28 supra).

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and jurisdiction to which it would be entitled pursuant to Article 56 of the UNCLOS.54 As regards the Falkland Islands, an ‘Interim Fishery Conservation and Management Zone’ was established in 198655 and an ‘Outer Fishery Conservation Zone’ in 1994.56 In these zones the United Kingdom claims broader jurisdiction than merely for fisheries purposes but not all of the sovereign rights and jurisdiction to which it would be entitled pursuant to Article 56 of the UNCLOS.57 It is likely that this can to a considerable extent be attributed to the disputes on title to territory between the United Kingdom and Argentina over South Georgia and the South Sandwich Islands as well as the Falklands Islands. The most recent special maritime zone claimed by the United Kingdom is the 200 nm ‘Environment Zone’ established off the British Indian Ocean Territory (BIOT) in 2003.58 Within the Environment Zone, the United Kingdom claims sovereign rights and jurisdiction with regard to the protection and preservation of the environment.59 The Environment Zone complements the 200 nm ‘Fisheries Conservation and Management Zone’ established off the BIOT in 1991.60 These two zones combined thus claim less than what Article 56 of the UNCLOS allows. This too, seems related to a dispute on title to territory, namely that between the United Kingdom and Mauritius on title to the BIOT. In this regard, mention should be made of the establishment of a 200 nm MPA off the BIOT in 2010, which led Mauritius to institute proceedings against the United Kingdom pursuant to the UNCLOS.61 54  See Sec. 3 of the 1993 Proclamation, which does not refer, among other things, to marine scientific research. The legislation listed at suggests that only fisheries jurisdiction has been exercised in the Maritime Zone. 55  ‘Falkland Islands—The Fisheries (Conservation and Management) Ordinance of 1986’ (available at DOALOS website, note 28 supra). The Interim Zone is 150 nm in breadth measured from a single point in the middle of the Falkland Islands (See Proclamation No. 4 of 1986, ‘Interim Fishery Conservation and Management Zone’, Law of the Sea Bulletin No. 9 (1987), at 19). 56  ‘Proclamation No. 1, of 1994’ (available at DOALOS website, note 28 supra). 57  Ibid., at Sec. 2. 58  Proclamation No. 1, of 17 September 2003, ‘establishing the Environment (Protection and Preservation) Zone for the British Indian Ocean Territory’ (available at DOALOS website, note 28 supra). 59  Sec. 3 of the 2003 Proclamation, note 58 supra. 60   Since repealed. The currently applicable legislation is ‘The British Indian Ocean Territory—The Fisheries (Conservation and Management) Ordinance 2007’, Ordinance No. 5, of 21 December 2007 (available at ). 61  For information see .

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200 NM Zones in the Mediterranean Sea If all Mediterranean coastal States were to establish an EFZ, EEZ or a 200 nm maritime zone derived therefrom, no pockets of high seas would remain in the Mediterranean Sea.62 Among the reasons why many Mediterranean coastal States initially opted for not establishing these maritime zones and why some still not have established them today, are the potential consequences of the many overlaps of claimed maritime zones—often by more than two States— that would be generated. However, lack of agreement on maritime boundaries between adjacent or opposite States does not prevent them from claiming such maritime zones as such, but only restrains their exercise of the associated sovereign rights and jurisdiction vis-à-vis each other in the overlapping area. Continued refraining to claim 200 nm maritime zones is therefore more likely caused by various (geo-)political reasons, including accession to the EU and historic fishing patterns.63 Responding in part to encouragement from the EU and the parties to the Barcelona Convention,64 65 the overall size of the high seas area in the Mediterranean Sea has continued to decrease with more and more Mediterranean coastal States claiming an EFZ or EEZ—with either a specified width of less than 200 nm66 or an outer limit to be agreed with opposite States—or other 200 nm maritime zones derived from the EEZ. These other 200 nm maritime zones include the FPZs of Libya and Spain, which were not formally revoked but may now in practice be subsumed in their EEZs.67 As noted above, these are de facto EFZs. In 2003, France authorized the establishment of an Ecological Protection Zone (EPZ), which was eventually established in 200468 but then subsequently repealed in 2012 upon 62  T. Scovazzi “Harlequin and the Mediterranean” in Liber Amicorum B. Vukas (forthcoming in 2014). Bosnia and Herzegovina is not able to claim a 200 nm maritime zone because its territorial sea is enclosed by the internal waters of Croatia. 63  See, inter alia, D. Vidas “The UN Convention on the Law of the Sea, the European Union and the Rule of Law: What is going on in the Adriatic Sea?” (2009) 24 International Journal of Marine and Coastal Law 1–66. 64  Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, Barcelona, 10 June 1995. In force 9 July 2004, . 65  Cf. Scovazzi, note 62 at 17; Vidas, note 63 at 10; and A. Del Vecchio Capotosti “In Maiore Stat Minus: A Note on the EEZ and the Zones of Ecological Protection in the Mediterranean Sea” (2008) 39 Ocean Development & International Law 287–297, at 290–291. 66  E.g. the EFZs of Algeria, Malta and Tunisia (cf. Scovazzi, note 62). 67  See notes 42 and 43 supra. 68  The EPZ was established by means of Decree No. 2004–33, of 8 January 2004 (as amended), as authorized by Law No. 2003-346, of 15 April 2003 (relative à la creation d’une

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the establishment of its EEZ off its Mediterranean coast.69 Also in 2003, Croatia established an Ecological and Fisheries Protection Zone (EFPZ).70 Slovenia established an EPZ seaward of its territorial sea in 2005.71 Subsequently, it designated the ‘sea fishing area’ of Slovenia under its Marine Fisheries Act in 2006, consisting of three zones, one of which is defined as encompassing the EPZ and the high seas in the Adriatic Sea.72 It is not clear, however, if this definition is meant to claim a de facto EFZ within its EPZ. As a result of Croatia’s challenge to Slovenia’s entitlement to maritime zones seaward of its territorial sea, both States agreed to submit their territorial and maritime disputes to arbitration.73 Finally, after Italy authorized the establishment of an EPZ in 2006,74 it established an EPZ off part of its land territory in 2011.75 At the time of writing, the Croatian EFPZ and the Slovenian and Italian EPZs remained in force. All three zones are less than de facto EEZs, even though this is not equally evident for all. The Italian EPZ, for instance, explicitly excludes fisheries jurisdiction76 and it was already noted above that the Slovenian EPZ does not necessarily encompass a de facto EFZ. Moreover, Italy claims jurisdiction within its EPZ over archaeological and historical heritage, while

zone de protection écologique au large des côtes du territoire de la République; available at ). 69  Cf. Art. 3 of Decree No. 2012-1148, of 12 October 2012. 70  Decision by the Croatian Parliament of 3 October 2003 ‘on the Extension of the Jurisdiction of the Republic of Croatia in the Adriatic Sea’, as amended on 3 June 2004 (available at DOALOS website, note 28 supra). The application of the EFPZ to EU Member States— in essence Italy and Slovenia—was postponed several times (cf. Vidas, note 63 supra; and G. Andreone and G. Cataldi, “Sui generis zones”, in D. Attard, M. Fitzmaurice and N.A. Martínez Gutiérrez (eds), IMLI Manual on International Maritime Law, Vol. I: Law of the Sea (Oxford University Press, Oxford: 2014) 217–238, at 228. 71  Ecological Protection Zone and Continental Shelf of the Republic of Slovenia Act, of 22 October 2005; (2006) Law of the Sea Bulletin No. 60, 56. 72  Decree on designation of the sea fishing area of the Republic of Slovenia (Official Gazette of the Republic of Slovenia, No. 2/06, of 5 January 2006). 73  For information see . 74  Law No. 61, of 8 February 2006, ‘on the establishment of an ecological protection zone beyond the outer limit of the territorial sea’ (available at DOALOS website, note 28 supra). 75  Presidential Decree No. 209, of 27 October 2011, ‘Regulation establishing the ecological protection zone in the north-west Mediterranean, the Ligurian Sea and the Tyrrhenian Sea’ (available at DOALOS website, note 28 supra). 76  Cf. Art. 2(3) of the 2006 Law, note 74 supra.

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emphasizing consistency with the UNCLOS and the UCH Convention77.78 The three States seem to have opted for these maritime zones because of various issues with each other—including unresolved territorial and maritime disputes—and—in particular Italy—various issues and interests vis-à-vis other Mediterranean coastal States.79 In conclusion, the Croatian EFPZ and the Slovenian and Italian EPZs are new maritime zones as defined in this chapter. Their consistency with international law relies on the customary international law status of EFZs and EEZs as well as the principle in maiore stat minus and the fact that the relevant States were parties to the UNCLOS when the zones were designated. Contiguous Archaeological Zones Article 33 of the UNCLOS entitles a coastal State to exercise jurisdiction for customs, fiscal, immigration or sanitary purposes in its contiguous zone. Jurisdiction can only be used for “the control necessary” to prevent or punish infringements of the coastal State’s laws and regulations within the specified four substantive domains, that may occur or have occurred in the coastal State’s territory or territorial sea; including thereby also its internal waters and archipelagic waters.80 Article 33 therefore does not authorize prescriptive jurisdiction in the contiguous zone. Article 303(2) of the UNCLOS, however, does, with respect to archaeological and historical objects. It reads as follows: In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the seabed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article.

77  Convention on the Protection of the Underwater Cultural Heritage, Paris, 1 November 2001. In force 2 January 2009; 2562 United Nations Treaty Series 3 (2009); . 78  Art. 2(1) of the 2006 Law, note 74 supra; and Art. 3(1) of the 2011 Decree, note 75 supra. The fact that Art. 2(2) of the 2006 Law specifies that national and international law relating to marine pollution will also be applied to foreign vessels and nationals could mean that—a contrario—national and international law on other substantive domains will not be so applied. 79   See also S. Wolf “Ecological Protection Zones” Max Planck Encyclopedia of Public International Law (November 2008). 80  For this latter clarification see, for instance, Sec. 13 of the Maritime Zones Act of Mauritius (Act No. 2 of 2005; 62 Law of the Sea Bulletin 52 (2006).

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This provision has been criticized, among other things due to the odd linkage to laws and regulations for customs, fiscal, immigration or sanitary purposes as well as its limitation to “traffic” and “removal”, thus offering no remedy to damage or destruction. Moreover, the saving clause in paragraph (3) of Article 303 also comprises “the law of salvage or other rules of admiralty”, which has been interpreted in some States in support of the law of finds, thereby allowing treasure-seekers and looters to proceed largely on a first-come, firstserved basis.81 Such criticisms and shortcomings have to a considerable extent been addressed by the UCH Convention, even though quite a large number of the States participating in its negotiation eventually voted against its adoption (four) or abstained from voting (15).82 Aznar convincingly argues, however, that the concerns of this group were principally related to coastal State authority in the EEZ and continental shelf (Articles 9 and 10) rather than the contiguous zone (Article 8), and that this latter provision currently reflects customary international law.83 Article 8 is entitled ‘Underwater cultural heritage in the contiguous zone’ and acknowledges the right of coastal States to “regulate and authorize activities directed at underwater cultural heritage within their contiguous zone”. While a sizeable number of coastal States claim jurisdiction over archaeological and historical objects or underwater cultural heritage within the contiguous zones established by them,84 or claim such jurisdiction up to 24 nm from their baselines without establishing a contiguous (archaeological) zone,85 some coastal States have designated dedicated contiguous zones for that purpose. Mauritius,86 South Africa87 and Tonga88 have established ‘maritime cultural zones’ in which they claim general jurisdiction over archaeological and historical objects or underwater cultural heritage. It is submitted that such contiguous archaeological zones are new maritime zones as defined in this 81  T. Scovazzi “Underwater Cultural Heritage” Max Planck Encyclopedia of Public Inter­ national Law (February 2009). 82  M.J. Aznar “The Contiguous Zone as an Archaeological Maritime Zone” (2014) 29 International Journal of Marine and Coastal Law 1–51, at n. 48. 83  Ibid., at 51. 84  Ibid., at 22–23. 85  E.g. Italy by means of Art. 94 of its Legislative Decree No. 42, of 22 January 2004, ‘Code of the Cultural and Landscape Heritage’. 86  Sec. 25 of the Maritime Zones Act, No. 2 of 2005; 62 Law of the Sea Bulletin 52. 87  Sec. 6 of the Maritime Zones Act, No. 15 of 1994 (available at DOALOS website, note 28 supra). 88  Sec. 20 of the Maritime Zones Act, No. 10 of 2009.

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chapter and that they are consistent with the UCH Convention and customary international law. Colombia’s Integral Contiguous Zone Following its rejection of the Judgment of the International Court of Justice (ICJ) in the Territorial and Maritime Dispute (Nicaragua v. Colombia) case,89 Colombia established a so-called ‘Integral Contiguous Zone’ (Zona Contigua Integral) adjacent to the territorial sea around several of its islands and rocks in the Caribbean Sea.90 In several areas, the outer limit of this maritime zone extends beyond the maritime boundary established by the ICJ in the abovementioned case—thus overlapping with Nicaragua’s EEZ—and/or beyond 24 nm from the baselines. Moreover, within its Integral Contiguous Zone, Colombia—which was not a party to either the UNCLOS, the TSCZ Convention or the UCH Convention at the time of writing—claims jurisdiction in domains other than those mentioned in these treaties, for instance in relation to security at sea, the national maritime interests and the preservation of the environment.91 The Integral Contiguous Zone proclaimed by Colombia is undeniably a new maritime zone, both in geographical extent and in substantive scope. At least in some respects, however, the zone is clearly inconsistent with (the) current international law (of the sea). This is likely to be due to the overlap between one State’s contiguous zone and another State’s EEZ in conjunction with the fact that the contiguous zone extends beyond a maritime boundary established by the ICJ and applicable to the States involved. Moreover, inconsistency seems obvious when Colombia claims jurisdiction that is also covered by Nicaragua’s sovereign rights and jurisdiction pursuant to Article 56 of the UNCLOS. A similar conclusion relates to those parts of the zone that are beyond 24 nm from the baselines—whether or not overlapping with another State’s EEZ—where a coastal State claims jurisdiction along the lines of Article 33 of the UNCLOS. Finally, whereas the claimed environmental and fisheries jurisdiction is not problematic in areas that do not overlap with Nicaragua’s EEZ, the 89  Judgment of 19 November 2012, ICJ Reports 2012, 624. 90  Art. 5(2) of the Presidential Decree No. 1946, of 9 September 2013. This Decree was amended by Presidential Decree No. 1119, of 17 June 2014. Both are available at . 91  Art. 5(3)(a) of Presidential Decree No. 1946, as amended (note 90 supra). Before its amendement, this provision also referred to the exercise of historic fishing rights belonging to Colombia (“el ejercicio de los derechos históricos de pesca que ostenta el Estado colombiano”). The 2014 amendments include a reference to historic fishing rights in Art. 1(3).

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claim is remarkable as such jurisdiction is already covered by Colombia’s EEZ established in 1978;92 thus also creating overlap between domestic legislation possibly resulting in legal uncertainty. The ICJ will have an opportunity to rule on many of these matters in the case brought by Nicaragua against Colombia in response to Colombia’s proclamation of the zone as well as other actions.93 Peru’s Maritime Domain Peru is one of the three signatories—together with Chile and Ecuador—of the 1952 Santiago Declaration,94 by which they claimed “exclusive sovereignty and jurisdiction” over all resources of the water column, seabed and subsoil within 200 nm of their coasts. Within their ‘maritime zone’, they nevertheless acknowledged the right of “innocent and inoffensive passage” for all States. Article 54 of the Political Constitution of Peru95 is modeled on the Santiago Declaration, but contains some important differences. It specifies that the territory of Peru includes its 200 nm ‘maritime domain’, in which Peru has “sovereignty and jurisdiction, without prejudice to the freedoms of international communication, in accordance with the law and the treaties ratified by the State.” Based on this and the fact that it is not a party to the UNCLOS or the TSCZ Convention, Peru can be categorized as a State claiming a 200 nm territorial sea96 although Peru does not explicitly do so. Ecuador, however, explicitly claims a 200 nm territorial sea as part of its “national domain”.97 Even though Ecuador acceded to the UNCLOS in 2012, it had still not brought its maritime zones into conformity with the UNCLOS at the time of writing. Chile already did so, apart from its mar presencial (see below). The prospect for Peru to formally follow suit has become more likely as a consequence of the ICJ proceedings it brought against Chile, which were concluded in 2014.98 The Judgment notes the following: 92  Act No. 10, of 4 August 1978, ‘establishing rules concerning the Territorial Sea, the Exclusive Economic Zone and the Continental Shelf and regulating other matters’ (available at DOALOS website, note 28 supra). 93  See the information on the Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) case available at . 94  Declaration on the Maritime Zone, Santiago, 18 August 1952. In force same day; 1006 United Nations Treaty Series 323 (1976). 95  Available at DOALOS website, note 28 supra. 96  See Maritime Claims Table in note 28 supra. 97  Art. 609 of the Civil Code of Ecuador (Código Civil, available at ). 98  Maritime Dispute case (Peru v. Chile), Judgment of 27 January 2014.

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Peru’s Agent formally declared on behalf of his Government that “[t]he term ‘maritime domain’ used in [Peru’s] Constitution is applied in a manner consistent with the maritime zones set out in the 1982 Convention”. The Court takes note of this declaration which expresses a formal undertaking by Peru.99 It may therefore well be that Peru changes its domestic legislation and/or accedes to the UNCLOS in the near future. At any rate, the Peruvian declaration implies that its maritime domain can now be interpreted as a generic term rather than a maritime zone as such.100

Maritime Zones Beyond 200 NM

Chile’s Mar Presencial The origin of the mar presencial—which can be translated as “the sea in which we are present”101—can be traced back to a speech given by the Chilean Admiral Jorge Martínez Busch in 1990.102 It was incorporated in Chile’s General Law on Fisheries and Aquaculture one year later,103 defined as the area of high seas in an expansive quadrangle between Chile’s coast, Easter Island and Antarctica.104 This area can to some extent be perceived as ‘enclosed’ by Chilean territory, thereby invoking a rationale that is akin to that of archipelagic waters. The spatial delimitation of the mar presencial is nevertheless also inspired by the ‘sector’ approach. A meridian and a parallel have been used for the area’s 99  Ibid., at para. 178. 100  See also the ‘Separate, Partly Concurring and Partly Dissenting, Opinion of Judge Ad Hoc Orrego Vicuña’ to the ICJ’s Judgment in the Maritime Dispute case, note 98 at paras. 8–11. 101  J.G. Dalton “The Chilean Mar Presencial: A Harmless Concept or a Dangerous Precedent?” (1993) 8 International Journal of Marine and Coastal Law 397–418, at 397. 102  As noted by F. Orrego Vicuña “Toward an Effective Management of High Seas Fisheries and the Settlement of the Pending Issues of the Law of the Sea”, (1993) 24 Ocean Development and International Law 81–92, at 87. 103  General Law No. 18.892 on Fisheries and Aquaculture (Ley No 18.892 General de Pesca y Acuicultura), of 1989. This was done through Law No. 19.080, of 6 September 1991. Both enactments are available at . 104  The definition in Art. 2 provides: “Es aquella parte de la alta mar, existente para la comu­ nidad internacional entre el límite de nuestra zona económica exclusiva continental y el meridiano que, pasando por el borde occidental de la plataforma continental de la Isla de Pascua, se prolonga desde el paralelo del hito N° 1 de la línea fronteriza internacional que separa Chile y Perú, hasta el Polo Sur.”

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western and northern boundaries respectively, and the chosen meridian lies significantly west of the 90 W meridian used by Chile for the western boundary of its claim to the Antarctic continent. It is also worth noting that Chile has, among other things, search and rescue responsibilities under the SAR Convention105 in a sector-based area whose western and northern boundaries are somewhat similar to those of the mar presencial.106 However, even if this would indeed have inspired the spatial scope of the mar presencial, this does not necessarily mean that Chile would limit itself to complying with its obligations and not claim some rights and jurisdiction as well. While two other references to the mar presencial were included in the General Law on Fisheries and Aquaculture in 1991 as well,107 the legislation did not offer a general clarification as to which rights or jurisdiction Chile claimed in the area.108 Further inclusions of the mar presencial into legislation occurred in the 1994 Law on the Environment,109 in 2002 in the Law on Nuclear Security110 and in 2006 in the General Law on Fisheries and Aquaculture,111 but such a general clarification still does not seem to be incorporated in Chilean legislation at the time of writing.112 Specific enactments nevertheless include a requirement for all vessels carrying nuclear substances or radioactive materials to obtain authorization prior to transit through the mar presencial.113 Current international law offers no basis for such a right. It is nevertheless unclear if Chile has enforced non-compliance with the requirement by means of at-sea enforcement, port State jurisdiction or otherwise. 105  International Convention on Maritime Search and Rescue, Hamburg, 27 April 1979. In force 22 June 1985; 1405 United Nations Treaty Series 118, as amended. 106  See the maps in Chilean Ministry of Defense’s 2010 publication El Libro de la Defensa Nacional de Chile (available at ), 1st Part ‘El Estado De Chile’, at 37 and 44. 107  These references are now included in Articles 43 and 172 (cf. consolidated text of the General Law General Law No. 18.892, note 103 supra, as from 1 January 2013; available at ). 108  Orrego Vicuña, note 102 supra, at 88–89. 109  Ley No. 19.300 Sobre Bases Generales Del Medio Ambiente, of 1 March 1994; consolidated version available at ). See Art. 33(2). 110  Ley No. 18.302 de Seguridad Nuclear, of 16 April 1984. A reference to the mar presencial in Art. 4(1) was included by means of Law No. 19.825, of 1 October 2002 (see ). 111  Art. 124(2). 112  The description in El Libro de la Defensa Nacional de Chile, note 106 supra, at 39–40 merely emphasizes Chile’s special interests and responsibilities in the mar presencial, rather than claiming rights or jurisdiction. 113  Art. 4(1) of the Law on Nuclear Security, note 110 supra.

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It is submitted that the mar presencial has above all had influence in the domain of fisheries management. Upon ratifying the UNCLOS in 1997, Chile issued various declarations which, among other things, asserted Chile’s special interests with regard to straddling and highly migratory fish stocks in the high seas area adjacent to its EEZ. In the absence of agreement with high seas fishing States on the conservation and management of these stocks in the high seas, Chile reserved the right to exercise what it perceived to be its rights pursuant to Article 116 and other provisions of the UNCLOS as well as under general international law.114 At the time, the negotiations on the Fish Stocks Agreement115 had already been concluded, but not to Chile’s satisfaction, which made it decide to not even sign the Agreement. Chile’s 1997 position seemed more reminiscent of the special coastal State rights over fish stocks adjacent to its territorial sea under the HS Fisheries Convention,116 despite the emergence of EEZs since then. Also in 1997, a process began in the Permanent South Pacific Commission (CPPS) among Chile and its three other Members—Colombia, Ecuador and Peru—towards a regional fisheries agreement compatible with Chile’s position as described above.117 The other Members had not signed the Fish Stocks Agreement at the time either, and had in fact not even become parties to the UNCLOS. Ecuador finally became a party to the UNCLOS in 2012, while submitting a declaration that contains the same text as Chile’s 1997 text described above.118 In 2000 the CPPS Members adopted the Galapagos Agreement,119 which gave coastal States a preferential role in high seas fisheries management. This could be regarded as the CPPS’s regional implementation of the mar presencial. However, for a number of reasons—including opposition from

114  The Chilean declarations are available at . Orrego Vicuña, note 108 supra, at 88 also links this position to the mar presencial. 115  Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995. In force 11 December 2001, 2167 United Nations Treaty Series 3; . 116  See note 24 supra. 117  M.A. Orellana “The Swordfish Dispute between the EU and Chile at the ITLOS and the WTO” (2002) 71 Nordic Journal of International Law 55–81, at 63. 118  See . 119  Framework Agreement for the Conservation of the Living Marine Resources on the High Seas of the Southeast Pacific, Santiago, 14 August 2000. Not in force, Law of the Sea Bulletin, 70–78, No. 45 (2001).

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high seas fishing States and the EU—the Agreement never entered into force.120 Chile’s decision in 2005 to join Australia and New Zealand as co-initiators of the negotiations that culminated in the SPRFMO Convention,121 implied that it no longer regarded the Galapagos Agreement’s entry into force as realistic or desirable. As the SPRFMO Convention’s Preamble indicates, it implements not only the UNCLOS but also the Fish Stocks Agreement. In early 2014, Chile seemed to be heading towards becoming a party to the Fish Stocks Agreement.122 This gradual change in Chile’s position towards the Fish Stocks Agreement and the fact that Chile did not invoke the mar presencial in the ICJ proceedings instituted against it by Peru in 2008,123 does not mean that Chile has abandoned the mar presencial, however. The zone remains included in its legislation and Chile continues to exert influence on fishing in the mar presencial by foreign vessels—in particular those targeting swordfish and jack mackerel—by exercising port State jurisdiction.124 Whether or not Chile’s practice is consistent with in particular international trade law remains an unresolved question. It could have been addressed by two separate but related dispute settlement procedures on swordfish between the EU and Chile under the World Trade Organization (WTO) and the UNCLOS instituted in 2000,125 but these were discontinued in 2010 and 2009 respectively.126 Another opportunity to shed some light on the question arose in 2013 when Denmark in respect of 120  See E.J. Molenaar “Non-Participation in the Fish Stocks Agreement. Status and Reasons” (2011) 26 International Journal of Marine and Coastal Law 195–234, at 202. 121  Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, Auckland, 14 November 2009. In force 24 August 2012; . 122  Report of the Tenth round of Informal Consultations of States Parties to the Fish Stocks Agreement (April 2014; available at ), at para. 14. 123  See note 98 supra. 124  See, inter alia, Art. 165 of the General Law No. 18.892, note 103 supra, as implemented in part by Decree No. 123, of 3 May 2004 (Aprueba Política de uso de Puertos Nacionales por Naves Pesqueras de Bandera Extranjera que Pescan en Alta Mar Adyacente), as amended; and Chile’s declaration of 28 August 2012 upon ratification of the PSM Agreement (Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Rome, 22 November 2009. Not in force; ). 125  See Orellana, note 117 supra; A. Serdy “See You in Port—Australia and New Zealand As Third Parties in the Dispute Between Chile and the European Community over Chile’s Denial of Port Access to Spanish Vessels Fishing for Swordfish on the High Seas” (2002) 3 Melbourne Journal of International Law 79–119; and E.J. Molenaar “Port State Jurisdiction: Toward Comprehensive, Mandatory and Global Coverage” (2007) 38 Ocean Development & International Law 225–257, at 237–239. 126  For information see and .

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the Faroe Islands instituted two separate but related dispute settlement procedures on Atlanto-Scandian herring against the EU under the WTO and the UNCLOS, but these were terminated in 2014.127 In line with the key purpose of this chapter, the question is whether or not Chile’s mar presencial qualifies as a new maritime zone defined at the outset. It is submitted that it does. The mar presencial has a clear spatial definition based on adjacency and enclosure by land territory and maritime zones. Moreover, as Chile explicitly exercises jurisdiction within the area, it is more than just a sphere of interest or influence. This conclusion is not affected by the fact that such jurisdiction does not seem to have been exercised by means of atsea enforcement in the mar presencial but apparently exclusively by means of port State jurisdiction. In view of the unresolved question as to the consistency of port State jurisdiction with, in particular, international trade law and as there are no indications that Chile has imposed port State enforcement measures that are more onerous than denial of entry or use, the mar presencial as applied in practice is not necessarily inconsistent with international law. Grey Areas In case a maritime boundary between adjacent States is not based entirely on equidistance and delimits the water column as well as continental shelves beyond 200 nm without changing direction, it creates a so-called grey area.128 Grey areas are for the purpose of this chapter defined as areas located within 200 nm from the baselines of one State but situated on the other State’s side of the maritime boundary. From the perspective of the other State, they are beyond 200 nm from its baselines even though they are situated on its side of the maritime boundary. In case the two States do not make an arrangement, the water column of such waters is therefore subject to the regime of the high seas. An example of a grey area is the ‘Special Area’ in Figure 10.1 below; this figure inter alia depicts the maritime boundary in the Barents Sea and Arctic Ocean agreed between Norway and the Russian Federation by means of the

127  For information see and . 128  A.G. Oude Elferink “Does Undisputed Title to a Maritime Zone Always Exclude Its Delimitation: The Grey Area Issue” (1998) 13 International Journal of Marine and Coastal Law 143–192. A similar situation applies to the territorial sea. See also paras. 464–474 of the ITLOS Judgment in the Bay of Bengal case, note 30 supra, which led to an overlap between the outer continental shelf of Bangladesh and a residual EEZ of Myanmar.

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FIGURE 10.1

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Maritime boundaries around Svalbard.129

Murmansk Treaty.130 The agreed maritime boundary—which comprises both the water column and the continental shelf—creates on the eastern side two areas which are within 200 nm from Norwegian baselines but beyond 200 nm 129  Map reprinted with permission from Claes Lykke Ragner, the Fridtjof Nansen Institute, who created the map which appeared in the article by Ø. Jensen “The Barents Sea” (2011) 26 The International Journal of Marine and Costal Law 151–168, at 154. 130  Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean (Murmansk,

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from Russian baselines. Within one of the two areas—namely the one that is within 200 nm of the Norwegian mainland—the Russian Federation is entitled pursuant to Article 3 of the Murmansk Treaty to the sovereign rights and jurisdiction “derived from exclusive economic zone jurisdiction that Norway would otherwise be entitled to exercise under international law”.131 These spatially defined Norwegian sovereign rights and jurisdiction are thus ceded to the Russian Federation by means of the Murmansk Treaty. As no such arrangement has been made for the more northerly area—which lies within 200 nm of Svalbard’s baselines—its waters have become part of the high seas. The spatial scope of the so-called Loophole (i.e. the high seas pocket in the Barents Sea) is therefore enlarged with this more northerly area. It can be assumed that the absence of a similar arrangement for the more northerly area is directly linked to the Spitsbergen Treaty and the diverging views of Norway and other contracting parties on the Treaty’s spatial scope. As far as could be ascertained, the only other example where EEZ-derived sovereign rights and jurisdiction within grey areas have been ceded by one coastal State to another concerns the maritime boundary between the United States and the Soviet Union in the Bering Sea and the Arctic Ocean laid down in the Washington Agreement.132 The Agreement is not yet in force but has been provisionally applied from 15 June 1990.133 By means of Article 3 of this Agreement—whose key phrases are identical to those in the Murmansk Treaty—the United States ceded its EEZ-derived sovereign rights and jurisdiction in one small grey area to the Russian Federation and the Russian Federation ceded its EEZ-derived sovereign rights and jurisdiction in three larger grey areas to the United States.134 To compensate for this, the maritime boundary was shifted somewhat to the east in the central part of the Bering Sea.135 Grey areas are not mentioned in the UNCLOS and can also not be convincingly argued to be new maritime zones for the purpose of this chapter. After all, the sovereign rights and jurisdiction that can be exercised within grey 15 September 2010. In force 7 July 2011; United Nations Treaty Series Reg. No. 49095. English text available at ). 131  See in this context also Art. 2 of the Murmansk Treaty. 132  Agreement between the United States of America and the Union of Soviet Socialist Republics on the maritime boundary (Washington D.C., 1 June 1990. Not in force, 90 International Legal Materials 942 (1990); ). 133  Ibid. 134  See the Map in International Maritime Boundaries. Vol. I, J.I. Charney and L.M. Alexander (eds), (Martinus Nijhoff Publishers, Dordrecht/Boston/London: 1993) 453. 135  Oude Elferink, note 128 at 158.

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areas by the receiving coastal States are derived from the EEZ. Rather than the principle in maiore stat minus, ‘derived’ refers here to acquisition of title from another coastal State based on the latter’s entitlement under international law. Moreover, the grey areas are incorporated in the geographical scope of the receiving coastal State’s EEZ while noting their treaty-based acquisition.136 The cession of the EEZ-derived sovereign rights and jurisdiction can be a concession by the ‘granting State’ in exchange for the receiving State’s concession to accept a maritime boundary that is not based on equidistance, but can also be the result of the two States agreeing that equidistance is not an appropriate method in the case at hand.

Summary and Conclusions

This chapter has shown that state practice since the entry into force of the UNCLOS in 1994 has culminated in various maritime zones that are not mentioned in the UNCLOS and that were also not part of customary international law in 1994. Practically all of these new maritime zones are entirely consistent with current international law. Maritime concepts such as Peru’s maritime domain arguably do not—or at any rate no longer—qualify as new maritime zones as defined in this chapter. Most of the new maritime zones are 200 nm maritime zones derived from the EEZ. Their consistency with international law is ensured by the claiming States’ being parties to the UNCLOS and/or the customary status of EEZs and EFZs, as well as the principle in maiore stat minus (who can do more can also do less). Current state practice consists of the Croatian EFPZ, the Slovenian and Italian EPZs and the 200 nm maritime zones designated by the United Kingdom off some of its overseas territories. Their designation reflects a lack of ability and/or willingness to exercise all the sovereign rights and jurisdiction offered by the EEZ, which can be explained by a wide range of reasons, including disputes on title to territory. The FPZ established by Norway off Svalbard is derived from the EFZ and relies on its customary status. Rather than designating an EFZ or even an EEZ, however, Norway opted for an FPZ to take account of the diverging views among States on the spatial scope of the Spitsbergen Treaty. A limited number of parties to the Spitsbergen Treaty have fisheries access to the Svalbard FPZ, largely based on historic track records. In view of the uniqueness of the 136  See Art. 3(3) of the Washington Agreement, note 132 supra, and Art. 3(2) of the Murmansk Treaty, note 129 supra.

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situation—in particular the fact that sovereignty over Svalbard was granted by, and subject to, the Spitsbergen Treaty—no other coastal States will feel compelled or have an incentive to establish a similar maritime zone off part or all of their land territory. Despite their identical names, the Spanish and Libyan FPZs are really de facto EFZs.137 Contiguous archaeological zones are new maritime zones that do not rely on the principle of in maiore stat minus, but rather build on Article 303(2) of the UNCLOS, Article 8 of the UCH Convention and customary international law. Current state practice includes the ‘maritime cultural zones’ established by Mauritius, South Africa and Tonga up to 24 nm from their baselines in which they claim general jurisdiction over archaeological and historical objects or underwater cultural heritage. Further state practice could follow, for instance by States that already claim such jurisdiction without explicitly designating a dedicated maritime zone.138 States may also rename their existing contiguous zone in order to reflect its broader substantive scope. Colombia arguably went far beyond the discretion it has in this regard by establishing an Integral Contiguous Zone in 2013. This is undeniably a new maritime zone—both in geographical extent and in substantive scope—but it is at least in some respects clearly inconsistent with the current international law (of the sea). This includes the fact that the zone overlaps with Nicaragua’s EEZ in conjunction with the fact that it extends beyond a maritime boundary established by the ICJ. The ICJ will have an opportunity to rule on these matters in the case brought by Nicaragua against Colombia in response to Colombia’s proclamation of the zone as well as other Colombian actions. Leaving aside the grey areas obtained by the Russian Federation and the United States through treaty-based cession, only one State has established a maritime zone beyond 200 nm: Chile by means of its mar presencial. The mar presencial has a clear spatial definition based on adjacency and enclosure by land territory and maritime zones. Moreover, Chile explicitly claims prescriptive jurisdiction over vessels carrying nuclear substances or radioactive materials transiting through the mar presencial and exerts influence on foreign vessels fishing in the mar presencial by exercising port State jurisdiction. Accordingly, the mar presencial qualifies as a maritime zone rather than a sphere of interest or influence. It is submitted that this conclusion is not affected by the fact that such jurisdiction does not seem to have been exercised by means of at-sea enforcement in the mar presencial but apparently exclusively by means of port 137  The Spanish FPZ has not been formally revoked but may in practice be subsumed in its EEZ (see note 42 supra). 138  For instance Italy (see note 85 supra and accompanying text).

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State jurisdiction. In view of the unresolved question as to the consistency of port State jurisdiction with in particular international trade law and as there are no indications that Chile has imposed port State enforcement measures that are more onerous than denial of entry or use, the mar presencial is not necessarily inconsistent with international law. A more general conclusion is that none of these new maritime zones are exclusively meant to regulate shipping. While both Canada and the United Kingdom had adopted specific enactments over shipping up to 100 or 200 nm from their baselines before they established EEZs, their approach arguably falls short of explicitly designating a dedicated maritime zone. As noted above, the United Kingdom’s jurisdiction over vessel-source pollution related to the so-called ‘controlled waters’ but has been revoked upon the coming into force of its North Atlantic EEZ. Canada’s 1970 Arctic Waters Pollution Prevention Act (AWPPA)139 continues to apply to the defined ‘Arctic waters’ without making mention of a so-called ‘pollution prevention zone’, although this was in reality established. While the AWPPA was undoubtedly inconsistent with international law at the time of its enactment, it is now largely consistent with Article 234 of the UNCLOS. If Canada’s 2010 Northern Canada Vessel Traffic Services (NORDREG) Regulations140 and the NORDREG Zone established by its Section 2 are also consistent with Article 234 of the UNCLOS, is nevertheless disputed.141 For the purpose of this chapter, it is submitted that the NORDREG Zone can be categorized as an issue-specific area designation rather than a maritime zone. Another general conclusion based on the state practice discussed here is that the package-deal of the division of seas and oceans in maritime zones laid down in the UNCLOS has remained essentially unaltered during the period of more than three decades since its adoption. Creeping coastal State jurisdiction by means of establishing new maritime zones thus largely came to a standstill at the end of UNCLOS III. However, creeping coastal State jurisdiction can also occur without establishing new maritime zones. Coastal States could for instance expand their maritime zones significantly by adopting unscrupulous interpretations of the UNCLOS’ provisions on straight baselines, islands and rocks, and the outer limits of the continental shelf, or claim broader enforce139  Act of 26 June 1970, as amended; currently R.S.C., 1985, c. A-12 (available at ). 140  S OR/2010-127 (available at ). 141  See E.J. Molenaar “Options for Regional Regulation of Merchant Shipping Outside IMO, with Particular Reference to the Arctic Region” (2014) 45 Ocean Development & International Law 272–298, at 277–278.

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ment jurisdiction in the high seas adjacent to their maritime zones than what they are entitled under international law. Part of the reason why the UNCLOS package-deal on maritime zones has withstood the test of time, are the alternatives for unilateral coastal State jurisdiction that have been developed. One such alternative is the mechanism of so-called ‘cooperative legislative competence’, which allows coastal or strait States to impose specific standards on ships in lateral passage through EEZs or straits used for international navigation subject to the transit passage regime after having secured IMO approval.142 The UNCLOS package-deal on maritime zones has been exceptionally stable for more than three decades and may also remain so in the foreseeable future. One upcoming issue relates to the impact of climate change on entitlement to maritime zones. Pursuant to current international law, rising sea-levels will, inter alia, change the legal status of insular formations (islands, rocks and lowtide elevations) and thereby their entitlement to maritime zones. International law could nevertheless be changed—whether by means of treaties, decisions of intergovernmental organizations or (other) state practice—to address the inequity which would otherwise materialize for in particular small island developing States that bear little or no responsibility at all for global climate change. Rather than creating new maritime zones, such progressive development of international law would accept that entitlement to maritime zones at an agreed critical date would be definite and not susceptible to sea-level rise.

142  Ibid., at 282–283.

CHAPTER 11

Under-Utilized Coastal State Jurisdiction: Causes and Consequences Robin Churchill Introduction The first half of the title of this chapter clearly raises definitional issues. One can go further and say that it is question-begging. It presupposes that coastal state jurisdiction, or at least some forms of it, is under-utilized. This, in turn, assumes that it is clear what is meant by “under-utilized”—what degree of non-utilization by coastal states would amount to “under-utilization”? It may also assume that the information is available to make a judgment about these matters. As will be seen, none of these assumptions is necessarily correct. I begin by developing these points further, starting with some definitions. The term “coastal state” is used ubiquitously in the UN Convention on the Law of the Sea (UNCLOS),1 although nowhere is it defined. Nor, as far as I am aware, is the term defined in any other treaty, although it is widely used. The nearest that UNCLOS comes to a definition is in article 2(1), which states that “the sovereignty of a coastal State extends, beyond its land territory . . ., to an adjacent belt of sea, described as the territorial sea.” This captures the essential idea of the “coastal state”, which is the state having sovereignty, sovereign rights or jurisdiction in certain maritime areas adjacent to its coast.2 Moving on to the term “jurisdiction”, this term is generally understood, as far as matters that are criminal and administrative in nature are concerned (and this chapter, like most of UNCLOS, is not concerned with jurisdiction in civil matters), as having * Professor of International Law, University of Dundee, United Kingdom. I am very grateful for valuable and insightful feedback from Henrik Ringbom, the editor of this book, and for helpful comments from my co-authors, made at a workshop held in Oslo in June 2014, and my colleague at Dundee, Dr Jacques Hartmann. The usual disclaimer applies. 1  1833 UNTS 397. 2  The definition of the coastal state given by the Virginia Commentary is “the State from the coastline or baselines of which the breadth of the territorial sea is measured”: see M.H. Nordquist (ed.) United Nations Convention on the Law of the Sea: A Commentary, Vol. II (Martinus Nijhoff, Dordrecht: 1993) 46. This is an overly narrow definition.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004303508_012

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three components: the competence to legislate (legislative jurisdiction); the competence to arrest those suspected of having breached legislation (arrest jurisdiction); and the competence to try those arrested (judicial jurisdiction).3 This last form of jurisdiction can be disregarded for the purposes of this chapter because it is almost never exercised at sea.4 By contrast, both legislative and enforcement jurisdiction (as arrest jurisdiction will be referred to from now on) are. These two forms of jurisdiction need to be distinguished because they are not always, or indeed often, co-extensive. In this chapter, and in keeping with the general theme of this book, I confine my discussion of coastal state jurisdiction to that conferred by UNCLOS, and do not consider whether coastal states have jurisdiction under any other treaties or customary international law. UNCLOS endows coastal states with a variety of forms of legislative and enforcement jurisdiction, depending on where jurisdiction is being exercised, in relation to what subject matter, and in respect of whom; or, for those who like these things in Latin, jurisdiction ratione loci, ratione materiae and ratione personae. In terms of place, coastal states have jurisdiction, of varying kinds, in internal waters; the territorial sea, including territorial sea comprising international straits subject to transit passage; archipelagic waters (in the case of archipelagic states); the contiguous zone; the EEZ; and the continental shelf. In terms of subject matter, coastal states have jurisdiction in relation to, inter alia, navigation, fishing, the extraction of minerals from the seabed, customs and fiscal matters, immigration control, the conduct of marine scientific research, the control of pollution, the conservation of marine biodiversity, and the conduct of archaeological activities. In terms of persons, coastal states may exercise their jurisdiction in respect of ships and those on board, overflying aircraft and those on board, and artificial islands, installations and structures and those persons on them. In keeping with the general theme of this book, only coastal state jurisdiction in respect of ships will be addressed in this chapter. It is important to note that such jurisdiction is entirely permissive. UNCLOS endows coastal states with various competences to legislate and enforce their legislation, including setting parameters to the exercise of those competences, but it does not ever 3  In this chapter the competence to enforce legislation is considered to include not only the use of traditional criminal procedures but also administrative enforcement measures and sanctions. 4  A rare example of the exercise of judicial jurisdiction at sea that has been drawn to my attention by my colleague, Dr Jacques Hartmann, is the practice of Italian judges sometimes being taken out to sea to examine whether alleged pirates who have been arrested and kept at sea should continue to be detained.

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require them to exercise legislative and enforcement jurisdiction. Thus, provisions conferring legislative jurisdiction typically begin “the coastal State may adopt laws and regulations”,5 and provisions conferring enforcement jurisdiction typically provide that a coastal state “may” take certain forms of enforcement action.6 This is in sharp contrast to flag state jurisdiction, where flag states are usually obliged to exercise jurisdiction over their ships.7 Thus, the failure—or non-utilization, to use the terminology of the chapter heading—of a coastal state to exercise jurisdiction conferred upon it by UNCLOS does not in any way constitute a breach of its obligations under the Convention. Such non-utilization may, however, adversely affect good order at sea or the protection and preservation of the marine environment, a matter that is discussed in more detail below. Even limiting discussion of coastal state jurisdiction to that in respect of ships leaves a huge field for consideration. As suggested by the comments above about the scope of coastal state jurisdiction, there are a great many varieties of coastal state jurisdiction over ships, depending on the place where, and the subject matter in respect of which, jurisdiction is to be exercised. The table at the end of this chapter attempts to present a summary of such jurisdiction. It indicates that there are some 40 different kinds of coastal state jurisdiction over ships. There are 150 coastal states,8 all but 14 of which are parties to UNCLOS.9 Clearly it would be a daunting task, and a task that is way beyond the confines of a single chapter, to try to ascertain to what degree these 150 states had exercised the legislative jurisdiction that the Convention has bestowed on them, even allowing for the fact that some forms of jurisdiction are not relevant to all coastal states, such as jurisdiction conferred on archipelagic and straits states. Such a task would be challenging even if a comprehensive and up to date inventory of coastal state legislation in respect of foreign ships existed. But no such inventory exists. Considerable amounts of coastal state legislation 5  See, for example, arts. 21(1), 41, 42, 52–54, 62(4) and 211(4)–(6) (emphasis added). 6  See, for example, arts. 73(1), 220(2)–(6) and 233 (emphasis added). 7  See, for example, arts. 94, 211(2) and 217. 8  This figure is arrived at as follows. There are 193 members of the UN, of which 43 are landlocked. There are no entities not members of the UN that have unambiguously attained statehood. Although the Cook Islands and Niue are parties to UNCLOS, they are not included as coastal states in this chapter as they became parties to the Convention by virtue of its provisions on participation by self-governing entities (art. 305(c)–(e)) and are not members of the UN. 9  Information as at 3 October 2014. The 14 coastal states not parties to UNCLOS are Cambodia, Colombia, El Salvador, Eritrea, Iran, Israel, Libya, North Korea, Peru, Syria, Turkey, the United Arab Emirates, the USA and Venezuela.

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have been collected by the UN and published in its Legislative Series10 and Law of the Sea Bulletin and provided on its Oceans and Law of the Sea website.11 However, the UN would not claim that its collections of coastal state legislation were comprehensive or up to date. If the task of trying to determine the extent to which coastal states have exercised their legislative jurisdiction is very difficult, trying to establish the degree to which those states have exercised their enforcement jurisdiction is all but impossible, as there is no kind of central record of the thousands of occasions on which coastal states have exercised such jurisdiction by arresting ships. For that reason enforcement jurisdiction will not be considered further in this chapter. Having deconstructed the title of this chapter and concluded that it would be virtually impossible to reach any findings as to whether coastal state jurisdiction has been under-utilized, I could stop there. But that would be to shortchange the reader. While it is in practice impossible to reach conclusions about the degree of utilization of coastal state legislative jurisdiction in general, there are some forms of legislative jurisdiction that are subject to approval from the International Maritime Organization (IMO). It should be possible, from examining the records of the IMO, to discover the degree of utilization of these forms of jurisdiction: they relate to navigation in straits subject to the regime of transit passage (article 41); archipelagic sea lanes passage (article 53); and pollution in the EEZ (article 211(6)). As it happens, these are all forms of coastal state jurisdiction that I, and others, suspect are under-utilized. I consider each of these three matters in turn. Before I do that, I consider one other form of coastal state jurisdiction, that relating to the contiguous zone. I include it because this form of jurisdiction is reasonably well documented, both by the UN and the US State Department, and is far from fully utilized, unlike the EEZ,12

10  See, since 1970, ST/LEG/SER., vols. B/15 (1970), B/16 (1974), B/18 (1976) and B/19 (1980). As will be apparent, these collections are now very dated. 11  Available at . 12  126 states claim an EEZ, which represents 84% of all coastal states: see UNDOALOS, Table of claims to maritime jurisdiction available at , as updated by the author. Those states that have not claimed an EEZ are chiefly those which, because of their geographical location and the presence of neighbouring states, are unable to claim any zone beyond 12 nautical miles from their baselines or would be able to claim an EEZ of only a very restricted area, such as many of the states bordering the Arabian/Persian Gulf and Mediterranean Sea. It may not necessarily be the case that all states claiming an EEZ have claimed all the rights and jurisdiction to which they are entitled under UNCLOS art. 56, but it is beyond the scope of this chapter to consider this matter.

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the only other maritime zone to which states must make a claim.13 In relation to each of the four forms of jurisdiction selected for study in this chapter, I attempt to ascertain the degree of utilization. Where there has been less than full utilization, I try to explain why that is so and what the consequences are. One final point to note by way of introduction is that warships and other government ships operated for non-commercial purposes are generally immune from coastal state enforcement jurisdiction.14 Such immunity is conferred by a variety of treaties, including the International Convention for the Unification of Certain Rules concerning the Immunity of State-owned Ships (1926),15 the European Convention on State Immunity (1972),16 and the UN Convention on the Jurisdictional Immunities of States and their Property (2004),17 and, arguably, by customary international law. UNCLOS article 32 provides that “nothing in the Convention affects the immunities of warships and other government ships operated for non-commercial purposes.” In their joint separate opinion in the Libertad case, Judges Wolfrum and Cot took the view that article 32 did not incorporate any customary law rule on immunity into UNCLOS.18 Nevertheless, provision for immunity is made in a number of specific instances. Thus, articles 30 and 31 of the Convention imply that warships and other government ships operated for non-commercial purposes are not immune from coastal state legislative jurisdiction in the territorial sea but are generally immune from enforcement jurisdiction, since a coastal state may do no more than request such ships not complying with its legislation to leave its territorial sea. Within the EEZ, and therefore the contiguous zone, which overlaps with the innermost part of the EEZ, warships and other government ships operated for non-commercial purposes enjoy complete immunity from all forms of coastal state jurisdiction as a result of the fact that articles 95 and 96, which confer immunity from the jurisdiction of any state other than the flag state on the high seas, also apply to the EEZ by virtue of UNCLOS 13  The other two coastal state zones, the territorial sea and the continental shelf, exist ipso facto, without a state having to make a claim to them: see R.R. Churchill and A.V. Lowe The Law of the Sea 3rd (Manchester University Press, Manchester: 1999) 80–1 and 144–5. 14  See further chapter 4 in this volume. 15  Art. 3. 176 LNTS 199. 16  Art. 15. 1495 UNTS 181. 17  Art. 16. (2005) 44 ILM 801. The Convention is not in force. 18  The ARA Libertad case (Argentina v. Ghana), Request for the prescription of provisional measures. Order of 15 December 2012, available at , Joint Separate Opinion of Judge Wolfrum and Judge Cot, paras. 22–51. The International Tribunal for the Law of the Sea (ITLOS) as a whole did not offer a view on the matter.

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article 58(2). Finally, article 236 of the Convention provides that warships and other government ships operated for non-commercial purposes are immune from both coastal State legislative and enforcement jurisdiction relating to “the protection and preservation of the marine environment”.

Contiguous Zone

UNCLOS article 33 provides that beyond its territorial sea a coastal state may establish a contiguous zone within which “it may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea.” The outer limit of the contiguous zone may not extend more than 24 miles from the baseline.19 So if a coastal state’s territorial sea is 12 miles in breadth, which is usually the case, the contiguous zone will be 12 miles in breadth. It is clear from the wording, drafting history and context of article 33 that the contiguous zone is a zone of enforcement jurisdiction20—for enforcing the legislative jurisdiction that a coastal state has in its territorial sea in respect of the matters listed in article 33. Even though, as explained in the introduction, this chapter is not concerned with enforcement jurisdiction, the contiguous zone is discussed here because if a state is to exercise the powers that it has in the contiguous zone, it must legislate to give itself those powers. Such action is required by international human rights law, which stipulates that a state may not arrest a person ”except on such grounds and in accordance with such procedures as are established by law.”21 In its judgment in the Medvedyev case (2010) the European Court of Human Rights made it clear 19  All references to miles in this chapter are to nautical miles. 20  See further G. Fitzmaurice “Some Results of the Geneva Conference on the Law of the Sea” (1959) 8 International and Comparative Law Quarterly 111–115; A.V. Lowe “The Development of the Concept of the Contiguous Zone” (1981) 52 British Yearbook of International Law 159–169; and D.P. O’Connell The International Law of the Sea, Vol. II (Clarendon Press, Oxford: 1984) 1057–61. Support for the view that the contiguous zone is a zone only of enforcement jurisdiction is also afforded by the decision of the ITLOS in the Saiga No. 2 case (St. Vincent v. Guinea), (1999) 38 ILM 1323 (para. 127). For the contrary view, namely that a coastal state has legislative jurisdiction in the contiguous zone, see S. Oda “The Concept of the Contiguous Zone” (1962) 11 International and Comparative Law Quarterly 131. 21  International Covenant on Civil and Political Rights, art. 9(1), 999 UNTS 171. There is a similar provision in the European Convention on Human Rights, art. 5(1), 213 UNTS 221; the

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that this principle not only applies to ships but also, at least in the case of the European Convention on Human Rights, applies at sea.22 As of 2011, 89 states, out of a total of 142 coastal states at that time claiming a territorial sea of 12 miles or less, claimed a contiguous zone of the kind referred to in article 33.23 I have come across one state claiming a contiguous zone since 2011,24 and one state (Somalia) that has reduced its territorial sea claim from 200 to 12 miles.25 That therefore makes a total of 90 states that claim a contiguous zone, out of a total of 143 states known to claim a territorial sea of 12 miles or less,26 which is close to 63 per cent. The number of coastal states American Convention on Human Rights, art. 7(2), 1144 UNTS 123; and the African Charter on Human and Peoples’ Rights, art. 6, 1520 UNTS 363. 22  Medvedyev v. France, Application No. 3394/03, Judgment of the Grand Chamber of 29 March 2010, ECHR Reports 2010-III, 61 at 91–92 and 95–101 (paras. 62–67 and 79–103). For discussion of the application of human rights treaties at sea, see I. Papanicolopulu “Human Rights and the Law of the Sea” in D. Attard, M. Fitzmaurice and N. Martinez (eds.) IMLI Manual on International Maritime Law. Vol. I, The Law of the Sea (Oxford University Press, Oxford: 2014) 509, especially 518–22; and U. Khaliq in chapter 13 of this volume. 23  UNDOALOS, Table of claims to maritime jurisdiction, note 12. Roach and Smith give a figure of 90, but their total includes Kuwait, which only reserves the right to claim a contiguous zone, but does not actually appear to have done so: see J.A. Roach and R.W. Smith Excessive Maritime Claims 3rd (Martinus Nijhoff, Leiden: 2012) 151–3. Not all these claims are in strict accordance with UNCLOS. Thus 17 states include security among the purposes for which the powers under art. 33 may be used (ibid., 154–7) and a handful of states claim legislative jurisdiction in the contiguous zone. 24  Colombia. See Presidential Decree 1946 of 9 September 2013, partially reproduced in para. 10 of the application of Nicaragua in the Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) case, available at . I am informed by Professor Tullio Scovazzi that Italy, which is not included in the lists of contiguous zone claimants referred to in note 23, claims a contiguous zone, of unspecified breadth, for immigration purposes. Because of its limited and uncertain nature, I have decided not to add it to the total of contiguous zone claims here. 25  According to Somalia’s application in the Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) case, para. 9, available at . 26  Not all the claims of the other seven coastal states necessarily exceed 12 miles. Ecuador may have abandoned its 200-mile territorial sea claim on ratifying UNCLOS in 2012, and the claims of Bosnia and Montenegro are unknown, but due to their geographical situation are very unlikely to exceed 12 miles. Thus, the total number of states with a territorial sea of 12 miles or less may be as high as 146, thereby reducing the percentage of such states claiming a contiguous zone to 61.6.

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claiming a contiguous zone has steadily increased over the years. In 1981, on the eve of the adoption of UNCLOS, the number of states claiming a contiguous zone was 31; by 1996, two years after the entry into force of the Convention, the number had roughly doubled to 66; and by 2011 it was 89.27 We can only guess at the reasons for this increase. The 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone had provided for a contiguous zone of the same juridical nature as UNCLOS but with a maximum breadth of 12 miles.28 Thus, in including provision for a contiguous zone UNCLOS was not adding a novelty to the law of the sea, unlike the EEZ, for example. So the slow growth in contiguous zone claims is unlikely to be linked to the increase in the number of ratifications of UNCLOS, which in any case has a steeper trajectory. The most likely reason for the growing number of contiguous zone claims is the significant increase in drug and people trafficking at sea in recent years: many coastal states may have considered that it would aid their efforts to prevent the illegal import of drugs and illegal immigration if they could intercept ships further out to sea than the territorial sea. In the case of African states, it has been suggested that the increase in the number of contiguous zone claims may have been particularly motivated by a desire to obtain greater means of combating the illegal trade in hazardous waste and endangered species.29 We would probably not regard a figure of 63% of coastal states claiming a contiguous zone as under-utilization. Nevertheless, it is far from full utilization. There seems to be no particular geographical or political pattern to the significant minority of coastal states that have chosen not to make use of the powers that they are given by UNCLOS article 33, other than that around half of the coastal states of the Baltic and Mediterranean Seas do not claim a contiguous zone. The absence of several Baltic Sea states from the list of contiguous zone claimants is a little surprising, given that Baltic Sea states played some part in developing the concept of the contiguous zone between the two World Wars.30 The lack of contiguous zone claims by Mediterranean Sea states may be linked to the traditional reluctance among such states to claim maritime zones beyond the territorial sea,31 even though illegal immigration is a major 27  Roach and Smith, note 23 at 151. 28  Convention on the Territorial Sea and the Contiguous Zone, art. 24, 516 UNTS 205. 29  A. Chircop, D. Dzidzornu, J. Guerreiro and C. Grilo “The Maritime Zones of East African States in the Law of the Sea: Benefits gained, Opportunities missed” (2008) 16 African Journal of International and Comparative Law 132. 30  See Lowe, note 20 at 134–5. 31  M. Grbec Extension of Coastal State Jurisdiction in Enclosed and Semi-Enclosed Seas: A Mediterranean and Adriatic Perspective (Routledge, London: 2014) chapter 3.

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problem for many Mediterranean States. There are a number of possible reasons why in other parts of the world states have chosen—so far—not to claim a contiguous zone. First, for some states drug and people trafficking may not be a major problem. Second, some states may regard a 12-mile territorial sea as a sufficiently broad zone in which to take preventative and enforcement action in respect of the matters with which the contiguous zone deals. Third, some states may consider that the possibility of hot pursuit for offences suspected to have been committed in internal waters and the territorial sea, as provide for in UNCLOS article 111, is adequate, and so they may feel that they do not need the additional preventative powers given by article 33. Finally, some states apply a liberal doctrine of constructive presence whereby a ship outside the territorial sea may be arrested there by the coastal state if that ship communicates with another ship sailing from the coastal state for the purpose of receiving drugs or illegal immigrants, for example, from the first ship.32 Whatever the reasons why a significant number of states have decided not to claim a contiguous zone, there is no evidence that I am aware of that such inaction has had any adverse consequences for the international community, such as handicapping the fight against drug and people trafficking.33

Jurisdiction over Ships in Transit Passage in Straits

UNCLOS article 41(1) provides that states bordering straits that are subject to a right of transit passage “may designate sea lanes and prescribe traffic separation schemes for navigation in straits where necessary to promote the safe passage of ships.” Such sea lanes and traffic separation schemes must “conform to generally accepted international regulations.”34 Before designating sea lanes or prescribing traffic separation schemes, a straits state “shall refer proposals to the competent international organization with a view to their adoption.” The competent international organization, which is generally taken to refer to the IMO,35 “may adopt only such sea lanes and traffic separation schemes as 32  See further Churchill and Lowe, note 13 at 133. The United Kingdom is one state not claiming a contiguous zone whose domestic courts have applied a liberal doctrine of constructive presence: see ibid. 33  It may be significant that in her ground-breaking monograph on international law relating to people trafficking at sea, Mallia does not advocate in her proposals for future action that those states that have not done so should establish a contiguous zone: see P. Mallia Migrant Smuggling at Sea: Combating a Current Threat to Maritime Security through the Creation of a Cooperative Framework (Martinus Nijhoff, Leiden: 2010). 34  Art. 41(3). 35  Nordquist, note 2, 363–4.

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may be agreed with the states bordering the straits, after which the states may designate, prescribe or substitute them.”36 Transit passage applies in straits “which are used for international navigation” between one area of EEZ or high seas and another area of EEZ or high seas and that do not include a corridor of EEZ or high seas.37 Because there is some uncertainty in determining which straits meet the condition of being “used for international navigation”, it is difficult to say how many or which straits fall within the definition of straits to which transit passage applies. Furthermore, a number of straits falling within the definition are the subject of long-standing treaties regulating navigation in such straits, e.g. the Baltic straits (Great Belt and Öresund) and Turkish straits (Bosporus and Dardanelles). In such straits the legal regime for navigation laid down by the treaties concerned continues to apply.38 Some straits (e.g. those between the main islands of Indonesia) lie within archipelagic waters and therefore are subject to the regime applying to archipelagic states (discussed in the next section). For all these reasons it is difficult to be sure which straits are subject to transit passage and consequently which states border those straits and have the jurisdictional competence conferred by article 41 to designate sea lanes and prescribe traffic separation schemes. The most commercially important straits that are unambiguously subject to transit passage include Bab el Mandeb (bordered by Djibouti and Yemen), Bonifacio (France and Italy), Dover (France and the United Kingdom), Gibraltar (Morocco and Spain), Hormuz (Iran and Oman), Malacca (Indonesia and Malaysia), Singapore (Indonesia, Malaysia and Singapore), and Torres (Australia and Papua New Guinea). I have not been able to discover how many of these 14 states have exercised their powers under article 41. However, in practice it is largely immaterial whether or not they have done so. That is because the IMO has adopted traffic separation schemes for most, if not all, of those straits (as well as for some other straits).39 Observance of these traffic separation schemes is mandatory under the Convention on the International Regulations for Preventing Collisions at Sea.40 The Convention is binding on 156 states, the ships of which account for 98.59 per cent of world registered tonnage.41 The few 36  Art. 41(4). 37  Art. 37, read with art. 36. 38  Art. 35(c). 39  IMO, Ships’ Routeing (IMO, London: 2013). An up to date version is available on CD rom. The price of this publication is beyond the means of the average academic: hence my uncertainty in knowing for which straits the IMO has adopted traffic separation schemes. 40  Rule 10, 1050 UNTS 16. 41  IMO, Summary of Status of Conventions, available at .

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states with a merchant shipping fleet that are not parties to the Convention are required by UNCLOS to comply with its provisions.42 Even if straits states have adopted their own legislation under and in accordance with article 41, there is uncertainty over whether they have the competence to enforce it. The only explicit reference in UNCLOS to straits states having enforcement jurisdiction in straits subject to transit passage is article 233, which deals with enforcement in respect of violations of straits states’ legislation concerning pollution. This has led some commentators to argue that the absence of any other reference to enforcement competence in UNCLOS means that straits states have only the enforcement competence set out in article 233. Other commentators, by contrast, point to article 34, which preserves the legal status of the territorial sea in straits subject to transit passage “in other respects”, and argue that straits states therefore have the competence that they have in the territorial sea generally under UNCLOS article 27 to enforce legislation adopted under article 41. Even if the former position is correct, a ship that violated a straits state’s legislation adopted under article 41 could presumably be prosecuted or sanctioned in some other way if it subsequently visited the port of that straits state.43 As mentioned, it is unclear whether or not there has been under-utilization of UNCLOS article 41; but if there has, it has had few, if any, adverse consequences for the international community as the orderly regulation of navigation through straits subject to transit passage has been provided by the IMO. In practice, the significance of article 41 is perhaps more negative than positive. Its most important purpose is to prevent straits states from legislating unilaterally in ways that might be disadvantageous to international shipping, rather than to encourage or require straits states to adopt legislation to regulate navigation through straits subject to subject to transit passage since the need for such legislation has been rendered redundant by the work of the IMO. Article 41 has largely succeeded in achieving this negative purpose. There appears to be only one instance of a straits state adopting measures for regulating transit passage through straits in a manner contrary to article 41. That is Australia’s unilateral imposition of compulsory pilotage through the Torres Strait in 2006, an action that has been heavily criticized by the IMO, other states and commentators as being incompatible with UNCLOS.44 42  UNCLOS, art. 39(2)(a). 43  On the issue of straits states’ enforcement competence, see further Churchill and Lowe, note 13 at 108–9. 44  See P.J. Neher “Compulsory Pilotage in the Torres Strait” in M.H. Nordquist, T.T.B. Koh and J.N. Moore (eds.) Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention (Nijhoff, Leiden: 2009) 339; and Roach and Smith, note 23 at 336–342.

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Archipelagic Sea Lanes Passage

UNCLOS article 47(1) provides that an archipelagic state, defined as a state “constituted wholly by one or more archipelagos” and possibly including other islands,45 may draw straight lines, known as archipelagic baselines, “joining the outermost points of the outermost islands and drying reefs of the archipelago.” The waters enclosed by archipelagic baselines are known as archipelagic waters and are subject to the archipelagic state’s sovereignty.46 Within archipelagic waters foreign ships have the same right of innocent passage as they enjoy in the territorial sea.47 In addition, an archipelagic state “may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea” within which foreign ships and aircraft “enjoy the right of archipelagic sea lanes passage.”48 This right is greater than innocent passage and is akin to transit passage through straits.49 Archipelagic sea lanes must include “all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary.”50 An archipelagic state which designates archipelagic sea lanes may also prescribe traffic separation schemes for the safe passage of ships through narrow channels within such sea lanes, which must conform to generally accepted international regulations.51 “In designating” archipelagic sea lanes or prescribing traffic separation schemes, an archipelagic state must refer proposals for such measures to the competent international organization, again taken as referring to the IMO, “with a view to their adoption.” The IMO “may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them.”52 45  Art. 46(a). An archipelago is defined in art. 46(b). 46  Art. 49. 47  Art. 52. 48  Art. 53(1) and (2). 49  Arts. 53(3) and 54. 50  Art. 53(4). 51  Art. 53(6) and (8). 52  Art. 53(9). To assist states in designating archipelagic sea lanes, the IMO in 1998 adopted “General Provisions for the Adoption, Designation and Substitution of Archipelagic Sea Lanes,” Resolution MSC.71(69) of the Maritime Safety Committee, as amended by Resolutions MSC.165(78) and MSC.280(85), adopted by the Maritime Safety Committee

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In the Qatar/Bahrain case the International Court of Justice implied that a state had specifically to claim the status of an archipelagic state in order to be able to enjoy the rights of such a state.53 So far 22 states have claimed the status of an archipelagic state by enacting appropriate legislation. These states are: Antigua and Barbuda,54 Bahamas,55 Cape Verde,56 Comoros,57 Dominican Republic,58 Fiji,59 Grenada,60 Indonesia,61 Jamaica,62 Kiribati,63 Maldives,64 in 2004 and 2008. For a more detailed discussion of the provisions of UNCLOS relating to archipelagic sea lanes passage, see M. Tsamenyi, C. Schofield and T. Milligan “Navigation through Archipelagos: Current State Practice” in Nordquist et al., note 44 at 424–7. 53  Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain [2001] ICJ Reports 40 at paras. 180–183. 54  Maritime Areas Act, 1982, United Nations, The Law of the Sea: Practice of Archipelagic States (United Nations, New York: 1992) 1. 55  Archipelagic Waters and Maritime Jurisdiction Act, 1993, (1996) 31 Law of the Sea Bulletin 31; and Archipelagic Waters and Maritime Jurisdiction (Archipelagic Baselines) Order, 2008 (2009) 69 Law of the Sea Bulletin 74. 56  Decree No. 126/77, United Nations, note 54 at 17, subsequently replaced by Law No. 60/ IV/92, (1994) 26 Law of the Sea Bulletin 24. 57  Law No. 82–005. United Nations, note 54 at 20; and Presidential Decree No. 10-092 of 2010 establishing the Limits of the Territorial Sea of the Union of Comoros (2010) 74 Law of the Sea Bulletin 16. 58  Law No. 66–07, 22 May 2007, (2008) 65 Law of the Sea Bulletin 18. 59  Marine Spaces Act, 1977, as amended; Marine Spaces (Archipelagic Baselines and Exclusive Economic Zone) Order, 1981; Marine Spaces (Territorial Seas) (Rotuma and its Dependencies) Order, 1981. United Nations, note 54 at 23, 40 and 43. 60  Grenada Territorial Sea and Maritime Boundaries Act, 1989 available at ; Statutory Rules and Orders Nos. 31 and 32 of 1992 (2010) 71 Law of the Sea Bulletin 36. 61  Law No. 4 concerning Indonesian Waters, 1960, United Nations, note 54 at 45; replaced by Law No. 6 of 1996 concerning the Indonesian Waters, (1998) 38 Law of the Sea Bulletin 32; Government Regulation No. 61 on the List of Geographical Coordinates of the Base Points of the Archipelagic Baselines of Indonesia in the Natuna Sea, (1998) 38 Law of the Sea Bulletin 41; Government Regulation No. 37 on the Rights and Obligations of Foreign Ships and Aircraft exercising the Right of Archipelagic Sea Lane Passage through Designated Archipelagic Sea Lanes, 28 June 2002, (2003) 52 Law of the Sea Bulletin 20; and Government Regulation No. 38 of 2002, as amended by Government Regulation No. 37 of 2008 (on details of archipelagic baselines) (2009) 69 Law of the Sea Bulletin Law of the Sea Bulletin 81. 62  Maritime Areas Act, 1996 (1997) 34 Law of the Sea Bulletin 29; and Exclusive Economic Zone Act (Baseline) Regulations, 1992 (1997) 32 Law of the Sea Bulletin 41. 63  Maritime Zones (Declaration) Act, 1983. United Nations, note 54 at 56. 64  Maritime Zones of Maldives Act No. 6/96, (1999) 41 Law of the Sea Bulletin 16.

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Marshall Islands,65 Mauritius,66 Papua New Guinea,67 Philippines,68 St. Vincent and the Grenadines,69 Sao Tomé e Principe,70 Seychelles,71 Solomon Islands,72 Trinidad and Tobago,73 Tuvalu74 and Vanuatu.75 All these states are parties to UNCLOS. Of these 22 States, 20 have drawn archipelagic baselines and therefore have archipelagic waters and the capacity to designate

65  Maritime Zones (Declaration) Act, 1984 available at . 66  Maritime Zones Act, 2005 (2006) 62 Law of the Sea Bulletin 52; Government Notice No. 126 of 2005, ibid.; and Maritime Zones (Baselines and Delineating Lines) Regulations, 2005 (2008) 67 Law of the Sea Bulletin 13. 67  National Seas Act, 1977. United Nations, note 54 at 61; Offshore Seas Proclamation, 1978, ibid. 68; and Declaration of the Baselines by Method of Coordinates of Base Points for Purposes of the Location of Archipelagic Baselines, 25 July 2002, (2003) 50 Law of the Sea Bulletin 31. 68  Republic Act No. 3046 of 17 June 1961, as amended by Republic Act No. 5446 of 18 September 1968, United Nations, note 54 at 75 and Republic Act No. 9522 of 2009, (2009) 70 Law of the Sea Bulletin 32. 69  Maritime Areas Act, 1983, United Nations, note 54 at 86; and Archipelagic Closing Lines and Baselines of St. Vincent and the Grenadines (Notice No. 60 of 1 April 2014) available at . 70  Decree-Law No. 14/78 of 16 June 1978, as amended by Decree Law No. 48/82, United Nations, note 54 at 93, subsequently replaced by Law No. 1/98 on Delimitation of the Territorial Sea and Exclusive Economic Zone (1998) 37 Law of the Sea Bulletin 74. 71  Maritime Zones Act, 1999 (2002) 48 Law of the Sea Bulletin 18, as amended by the Maritime Zones (Amendment) Act 2009 (2009) 70 Law of the Sea Bulletin 29; and Maritime Zones (Baselines) Order 2008, as amended by the Maritime Zones (Baselines) (Amendment) Regulations 2009 (2009) 70 Law of the Sea Bulletin 16 and 30. 72  Delimitation of Marine Waters Act, 1978; Declaration of Archipelagos of Solomon Islands, 1979; and Declaration of Archipelagic Baselines, 1979. United Nations, note 54 at 100 and 105. 73  Archipelagic Waters and Exclusive Economic Zone Act, 1986, United Nations, note 54 at 109; and Archipelagic Baselines of Trinidad and Tobago Order, 1988 available at . Details of archi­ pelagic baselines are available at (2004) 55 Law of the Sea Bulletin 29. 74  Maritime Zones (Declaration) Ordinance, 1983. United Nations, note 54 at 124, subsequently replaced by the Maritime Zones Act 2012 and the Declaration of Archipelagic Baselines, 2012 available at . 75  Maritime Zones Act, 1981, United Nations, note 54 at 131, subsequently replaced by the Maritime Zones Act No. 6 of 2010 and Ministerial Order No. 81 of 2009 (2010) 73 Law of the Sea Bulletin 14 and 25.

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archipelagic sea lanes therein.76 However, Indonesia appears to be the only state so far to have exercised this capacity and to have designated archipelagic sea lanes in accordance with article 53, which it did in 1998.77 However, this was a partial designation, as the only sea lanes designated were those on a roughly north-south axis. Some states have criticized Indonesia’s failure to designate any east-west sea lanes.78 For only one out of potentially 20 states to have exercised the jurisdiction to designate archipelagic sea lanes clearly amounts to under-utilization. As to why not more states have designated archipelagic sea lanes, one commentator has suggested that in the case of the Philippines the reason is because it is thought that the peace, good order and security of the archipelagic waters of the Philippines would be better served by the IMO designating the whole of those waters as a Particularly Sensitive Sea Area and adopting appropriate associated protective measures.79 The reasons why other archipelagic states have not (yet) designated archipelagic sea lanes are not clear. In the case of some archipelagic states, it may be because there is little or no foreign commercial shipping passing through their archipelagic waters. Bureaucratic inertia and lack of the necessary resources may also be factors. Many archipelagic states are poor, with small populations. Proper development and maintenance of archipelagic sea lanes represents a considerable technical and financial burden for an archipelagic state as it is under an obligation to ensure that navigation is safe in such sea lanes: this requires extensive and expensive surveying and the provision of navigation aids.80 76  The two archipelagic states that do not yet appear to have drawn archipelagic baselines are Kiribati and the Marshall Islands. When acceding to UNCLOS in 2003, Kiribati declared that the provisions of the Convention would not “allow a baseline to be drawn around all the islands of each of the three Groups of islands that make up the Republic of Kiribati.” However, in its view that did not in any way prejudice its status as an archipelagic state. Not all archipelagic baselines that have been drawn are in conformity with UNCLOS: see Roach and Smith, note 23 at 209–17; and Tsamenyi et al., note 52 at 437–445. 77  See Roach and Smith, note 23 at 367–8. For comment, see C. Johnson “A Rite of Passage: the IMO Consideration of the Indonesian Archipelagic Sea-Lanes Submission” (2000) 15 International Journal of Marine and Coastal Law 332. See also D.M. Sodik “The Indonesian Legal Framework on Baselines, Archipelagic Passage, and Innocent Passage” (2012) 43 Ocean Development and International Law 333–5; and Tsamenyi et al., note 52 at 429–431. 78  See Sodik, note 77 at 334–5. 79  A.A. Encomienda “Archipelagic Sea Lanes Passage and the Philippines Situation” in Nordquist et al., note 44 at 393. The concept of Particularly Sensitive Sea Areas and associated protective measures is discussed in the following section of this chapter. 80  Tsamenyi et al., note 52 at 453–4.

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The failure of almost all archipelagic states to designate archipelagic sea lanes has, in most cases, had no adverse consequences for the international community. This is because article 53(12) provides that “if an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation.”81 It may be that the existence of this right has led some archipelagic states to consider that it is unnecessary for them to designate archipelagic sea lanes. Nevertheless, it is always possible that the purported exercise of the right of archipelagic sea lanes passage in accordance with article 53(12) could give rise to disputes between an archipelagic state and other states, for example over which routes are “normally used for international navigation”, but I am not aware that there have been any such disputes. Potentially troubling is the fact that nine of the 20 states that have drawn archipelagic baselines do not explicitly provide for a right of archipelagic sea lanes passage in their domestic legislation.82 It does not necessarily follow, however, that such states would deny the ships of other states their right of archipelagic sea lanes passage under article 53(12).

Jurisdiction over Pollution from Ships in the EEZ

Paragraphs 5 and 6 of UNCLOS article 211 deal with the legislative jurisdiction of coastal states in respect of pollution from foreign ships in the EEZ. Paragraph 5 provides that a coastal state, “for the purpose of enforcement as provided for in section 6” of UNCLOS Part XII, “may”, in respect of foreign ships navigating in its EEZ, “adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally 81  To assist the exercise of this right, the Maritime Safety Committee of the IMO approved “Guidance to Ships Transiting Archipelagic Waters” in 1998: see SN/Circ. 206 (1999). 82  Roach and Smith, note 23 at 364. The nine states are Cape Verde, Comoros, Dominican Republic, Mauritius, Papua New Guinea, Philippines, Sao Tomé e Principe, Trinidad and Tobago, and Vanuatu. The legislation of Cape Verde, which dates from 1992, provides that the Government is to prepare regulations with regard to sea lanes in archipelagic waters: see Law No. 60/IV/92, note 54, arts. 6 and 22(f). I have not been able to discover whether such regulations have ever been adopted: there are no such regulations on the website of the UNDOALOS. In 2011 the Philippines Government presented a Bill to Congress to bring Philippines legislation into line with UNCLOS: see Roach and Smith, note 23 at 366. The Bill, the Philippine Archipelagic Sea Lanes Act, was approved by the House of Representatives in 2012 but had not been approved by the Senate as of June 2014: see .

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accepted international rules and standards established through the competent international organization or general diplomatic conference.” Paragraph 6 goes on to provide that where such international rules and standards “are inadequate to meet special circumstances” and a coastal state has reasonable grounds for believing that a particular, clearly defined area of its EEZ is “an area where the adoption of special mandatory measures for the prevention of pollution from vessels is required for recognized technical reasons in relation to its oceanographical and ecological conditions, as well as its utilization or the protection of its resources and the particular character of its traffic,” that state, after appropriate consultations through the competent international organization (i.e. the IMO) with any other states concerned, may, for that area, direct a communication to the IMO, submitting scientific and technical evidence in support and information on necessary reception facilities. Within 12 months of receiving such a communication, the IMO shall determine whether the conditions in that area correspond to the requirements set out above. If the IMO so determines, the coastal state may, for that area, adopt laws and regulations for the prevention, reduction and control of pollution from vessels implementing such international rules and standards or navigational practices as are made applicable, through the IMO, for special areas. Such laws and regulations shall not become applicable to foreign vessels until 15 months after the submission of the communication to the IMO. If the coastal state intends to adopt additional laws and regulations for the same area for the prevention, reduction and control of pollution from vessels, it shall notify the IMO at the same time as submitting its communication. Such additional laws and regulations may relate to discharges or navigational practices but shall not require foreign vessels to observe design, construction, manning or equipment standards other than generally accepted international rules and standards. Such coastal state measures become applicable to foreign vessels 15 months after the submission of the communication to the IMO, provided that the latter agrees within 12 months after the submission of the communication.83 At one time the IMO planned to issue guidelines on the operation of these provisions, but in the end it never did so.84

83  For a very much more detailed analysis of art. 211(6), see T. Dux Specially Protected Marine Areas in the Exclusive Economic Zone (EEZ): The Regime for the Protection of Specific Areas of the EEZ for Environmental Reasons under International Law (Lit Verlag, Berlin: 2011) 180–212. 84  Information received from Professor Aldo Chircop.

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As far as I have been able to discover, no coastal state has yet made use of the powers given by article 211(6).85 One can only speculate as to the reasons for such non-utilization. First, many coastal states may regard the powers as irrelevant because there are no areas of their EEZ that correspond to the kinds of area for which the measures under article 211(6) may be made. Second, some coastal states may consider that existing international measures are perfectly adequate, particularly IMO-designated Particularly Sensitive Sea Areas (PSSAs) and their associated protective measures. The latter include traffic separation schemes; ship reporting systems; special areas under the International Convention for the Prevention of Pollution from Ships, 1973 (the MARPOL Convention),86 where ships are subject to stricter pollution controls than elsewhere; and IMO-designated areas to be avoided by shipping.87 Third, some states may feel that the procedural conditions and periods of notice applicable to measures under article 211(6) are unduly irksome and prevent a rapid response when action is required. Some evidence that this may be the case is provided by the unilateral measures that some states have taken after major pollution incidents. For example, in the wake of the Prestige disaster in 2002, France, Portugal and Spain all adopted laws banning from their EEZs single hull tankers carrying heavy fuel oil that were more than 15 years old; and Morocco made the entry of such vessels into its EEZ subject to

85  The same finding has been made by other writers: see, for example, Dux, note 83 at 209; and S. Lalonde “Marine Protected Areas in the Arctic” in E.J. Molenaar, A.G. Oude Elferink and D.R. Rothwell (eds.) The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes (Martinus Nijhoff, Leiden: 2013) 92. There was consideration of the scope of art. 211(6) by both the IMO’s Legal Committee and UNDOALOS in connection with the designation of the Western European PSSA in 2003, although that PSSA is not based on art. 211(6): see J. Roberts, M. Tsamenyi, T. Workman and L. Johnson “The Western European PSSA Proposal: A ‘Politically Sensitive Sea Area’” (2005) 29 Marine Policy 438–9. 86  1340 UNTS 62. 87  See further R. Churchill “The Growing Establishment of High Seas Marine Protected Areas: Implications for Shipping” in R. Caddell and R. Thomas (eds.) Shipping, Law and the Marine Environment in the 21st Century (Lawtext Publishing, Witney: 2013) 73–82; M.J. Kachel Particularly Sensitive Sea Areas: The IMO’s Role in Protecting Vulnerable Marine Areas (Springer, Berlin: 2008); and J. Roberts and M. Tsamenyi “The Regulation of Navigation under International Law: A Tool for Protecting Sensitive Marine Environments” in T.M. Ndiaye and R. Wolfrum (eds.) Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Martinus Nijhoff, Leiden: 2007) 802–6.

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prior ­notification.88 Such unilateral measures do not seem to be compatible with UNCLOS. Whatever the reasons for the non-utilization of article 211(6), there appear to be no adverse consequences for the international community or the protection of the marine environment from the failure of coastal states to make use of their powers under article 211(6), as the IMO has generally taken the measures considered necessary or desirable to protect vulnerable areas by designating them as PSSAs and adopting appropriate associated measures. However, article 211(6), whether utilized or not, does have one drawback, which is that its complexity and procedural hurdles may encourage states to take unilateral measures that are both at variance with UNCLOS and damaging to international shipping. Conclusions UNCLOS endows coastal states with a wide variety of forms of jurisdiction, but it does not obligate them to exercise any of these jurisdictional powers. A lack of both accessible data and space means that it is impossible in a single chapter to assess the degree to which coastal states have in practice exercised the jurisdiction that UNCLOS bestows on them. Instead, this chapter concentrates on examining the utilization of coastal state jurisdiction relating to four matters: the contiguous zone; navigation in straits subject to the regime of transit passage; archipelagic sea lanes passage; and environmentally sensitive areas of the EEZ. It finds that just under two-thirds of all coastal states have claimed a contiguous zone; that only one out of 20 archipelagic states that have drawn archipelagic baselines has designated archipelagic sea lanes; and that no states appear to have made use of their powers under article 211(6) to adopt measures for environmentally sensitive areas of their EEZs. I have not been able to discover how many states bordering straits subject to a regime of transit passage have adopted sea lanes and traffic separation schemes for such straits in accordance with UNCLOS article 41. It is not obvious why coastal states have not made more use of the four forms of jurisdiction considered in this chapter, but in each case I suggest possible reasons, such reasons differing from one form of jurisdiction to another. The failure of coastal states to make much use of these four forms of jurisdiction appears to have few, if any, adverse consequences for the international community. In the case of the contiguous 88  Oceans and Law of the Sea: Report of the Secretary-General, UN Doc. A/58/65 of 3 March 2003, p. 21.

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zone, there appears to be no evidence to suggest that the lack of a contiguous zone significantly handicaps the fight against drug and people trafficking, the main matters in respect of which contiguous zone powers are exercised in the contemporary world. The fact that the territorial sea is usually 12 miles in breadth, the possibility of hot pursuit therefrom, and, in some cases, an expansive application of the doctrine of constructive presence appear to be considered sufficient substitutes for a contiguous zone. In the case of navigation in straits subject to the regime of transit passage and anti-pollution measures for environmentally sensitive areas of the EEZ, the lack of coastal state regulatory measures has been adequately compensated for by internationally binding measures adopted by the IMO. Finally, the failure by an archipelagic state to designate archipelagic sea lanes does not deprive other states of their right of archipelagic sea lanes passage as UNCLOS article 53(12) guarantees that right in “routes normally used for international navigation” where no designation has been made by the archipelagic state.

Annex: Coastal State Jurisdiction over Foreign Ships under UNCLOS

Maritime zone

Legislative jurisdiction

Enforcement jurisdiction

Internal waters

Not dealt with by UNCLOS other than for ships in innocent passage under art. 8(2), to which territorial sea provisions apply

Not dealt with by UNCLOS other than for ships in innocent passage under art. 8(2), to which territorial sea provisions apply

Territorial sea

Unlimited jurisdiction over ships not in innocent or transit passage (implicit from sovereignty under art. 2) For ships in innocent passage, matters listed in arts. 21 and 22

Unlimited jurisdiction over ships not in innocent or transit passage (implicit from sovereignty under art. 2) For ships in innocent passage, criminal jurisdiction (art. 27) and civil jurisdiction (art. 28) Dumping (art. 216); other pollution (art. 220(2)(3)(5)(6)) No specific provisions re marine scientific research

Dumping (art. 210); other pollution (art. 211(4)) Marine scientific research (art. 245)

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(cont.) Maritime zone

Legislative jurisdiction

Enforcement jurisdiction

Straits in the territorial sea subject to transit passage

Sea lanes and traffic separation None, unless art. 34 preserves art. 27 schemes (art. 41) Pollution (art. 233) Matters listed in art. 42

Contiguous zone

To give itself enforcement powers under arts. 33 and 303

For purposes listed in arts. 33 and 303

Archipelagic waters

Unlimited jurisdiction over ships not in innocent or archipelagic sea lanes passage (implicit from sovereignty under art. 49) For ships in innocent passage, as territorial sea (art. 52) For ships in archipelagic sea lanes passage, as straits subject to transit passage (arts. 53 and 54)

Unlimited jurisdiction over ships not in innocent or archipelagic sea lanes passage (implicit from sovereignty under art. 49) For ships in innocent passage, as territorial sea (art. 52) For ships in archipelagic sea lanes passage, as straits subject to transit passage (arts. 53 and 54)

EEZ

Possibly within safety zones around installations (art. 60(4)) Fisheries (art. 62(4)) Dumping (art. 210), other pollution (art. 211(5)(6)) and pollution in ice-covered areas (art. 234) Marine scientific research (art. 246)

Possibly within safety zones around installations (art. 60(4)) Fisheries (art. 73) Dumping (art. 216), other pollution (art. 220(3)(5)(6)) and pollution in ice-covered areas (art. 234) No specific provisions re marine scientific research

Continental shelf

Possibly within safety zones around installations (art. 80) Dumping (art. 210) Marine scientific research (art. 246)

Possibly within safety zones around installations (art. 80) Dumping (art. 216) No specific provisions re marine scientific research

Part 4 Seafarers and Human Rights

∵

CHAPTER 12

Seafarers as an Agent of Change of the Jurisdictional Balance Irini Papanicolopulu

The Sliding Scales of Jurisdiction at Sea

Regulation of activities taking place at sea is based upon a complex pattern of jurisdiction. The power to legislate and to enforce laws is distributed among different states so as to ensure a fair balance between different interests and different actors.1 The resulting jurisdictional balance is highly and subject to continuous modifications, reflecting the change in maritime activities, technological developments and the fluid nature of states’ relationships. The tension between access to the sea and control of maritime space, between the mare liberum and the mare clausum, has resulted in the dynamic jurisdictional balance endorsed by traditional law of the sea rules.2 This balance relies on two main elements: space and object. Space is divided into a number of geographically delimited maritime zones, which may include the water column, the airspace above and the seabed and subsoil below. Internal waters, archipelagic waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf, high seas, and International Seabed Area are the maritime zones expressly regulated in the United Nations Convention on the Law of the Sea (UNCLOS).3 Objects—in particular ships, which can be considered as the primary object regulated under the law of the sea, but also platforms and similar structures as well as cables and pipelines—are the second basic element, since in any case activities at sea are carried out, with few * Associate Professor, University of Milano-Bicocca, and Senior Lecturer, University of Glasgow. 1  R.R. Churchill and A.V. Lowe, The Law of the Sea 3rd (Manchester University Press, Manchester: 1999) 2  T. Scovazzi, “The evolution of international law of the sea: new issues, new challenges” (2000) 286 Collected Courses of the Hague Academy of International Law 39. 3  For a discussion of sui generis zones see G. Andreone and G. Cataldi “Sui Generis Zones” in D. Attard, M. Fitzmaurice and N. Martinez (eds) The IMLI Manual on International Maritime Law. The Law of the Sea (Oxford University Press, Oxford: 2014) 217.

© koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004303508_013

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exceptions, from a ship or from a platform.4 Determining jurisdiction at sea is an exercise in combining the space and the object, the medium with the area. For example, the coastal state has jurisdiction over vessels navigating in its territorial sea;5 the flag state has exclusive jurisdiction over vessels flying its flag and sailing on the high seas;6 platforms on the continental shelf are subject to the exclusive jurisdiction of the coastal state.7 The initial balance according to which the coastal state had jurisdiction over its territorial sea and vessels therein and the flag state had jurisdiction over vessels navigating on the high seas was revised as the desire to control specific activities and the strife for access to resources beyond the narrow belt of the territorial sea resulted in the introduction of the concept of functional ­jurisdiction.8 This development multiplied the possible combinations and introduced a more nuanced approach to jurisdiction. According to this approach, endorsed in UNCLOS rules on maritime zones, space and object are often combined with a specific activity—or a specific function—to determine the state having jurisdiction. For example, the coastal state has jurisdiction over vessels in its exclusive economic zone if they fish,9 but not if they transport timber; a state other than the flag state may board a ship on the high seas if it is suspected to be engaged in the slave trade,10 but not if it is engaged in the transport of oil (and possibly not if it is engaged in arms trafficking). This jurisdictional framework does not rely on the persons involved in the activities. Nationality of the person does not appear to be a criterion used by law of the sea, nor do the rules of this part of international law often establish which state has jurisdiction over a person.11 It could therefore be surmised that the presence of individuals at sea, or of a specific group of individuals, does not affect the balancing of jurisdictional rights and duties and does not constitute an element for the creation of new rules on jurisdiction. This paper will set out to test this assumption and examine if and how a specific category of people,

4   Exceptions include activities conducted from the coast, as in the case of telluric pollution, as well as activities conducted from the extra-atmospheric space, such as surveillance. 5   UNCLOS Arts. 2, 21, 27 and 28. 6   UNCLOS Art. 92(1). 7   UNCLOS Art. 80. 8   M. Gavouneli Functional Jurisdiction in the Law of the Sea (Martinus Nijhoff, Leiden: 2007). 9   UNCLOS Art. 73(1). 10  UNCLOS Art. 110(1)(b). 11  For an analysis see I. Papanicolopulu, “A Missing Part of the Law of the Sea Convention: Addressing Issues of State Jurisdiction over Persons at Sea” in M.-S. Kwon, C. Schofield and S. Lee (eds) The Limits of Maritime Jurisdiction (Martinus Nijhoff, Leiden: 2014).

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seafarers, has been an agent conducive to changes in the jurisdictional balance between different states. In order to conduct this assessment, the paper will first provide a working definition of “seafarers” and will present the traditional rules on jurisdiction over them, linked to the concept of the flag state. It will then consider why the presence of seafarers might affect the jurisdictional balance by examining two instances in which treaty law has established new grounds for state jurisdiction over seafarers. The first is maritime labour, in the context of which a change in the rules establishing jurisdiction may be prompted by the necessity to protect the seafarer. The second is the fight against illicit activities at sea, requiring a change in the rules on jurisdiction to ensure the punishment of the seafarer. The paper will conclude by discussing the extent to which seafarers have prompted changes in the rules establishing jurisdiction at sea and whether this has led to a change in the jurisdictional balance.

The Seafarer

A preliminary issue to the evaluation of the impact of seafarers on the jurisdictional balance consists in the need to define who the “seafarer” is. Most law of the sea and maritime law instruments do not use this term and instead utilize different words to designate those working on board a vessel. Treaties usually refer to the “crew” and, when appropriate, to the rank of the person. UNCLOS generally refers to the “master and crew” of vessels.12 The International Convention for the Safety of Life at Sea (SOLAS) refers to “the master and the members of the crew or other persons employed or engaged in any capacity on board a ship on the business of that ship”.13 The Convention on Facilitation of International Maritime Traffic defines crew member as “[a]ny person actually employed for duties on board during a voyage in the working or service of a ship and included in the crew list”.14 Recent treaties sometimes refer to “seafarers”, without however defining this term, as in the case of the International Convention on Standards of Training, Certification and Watchkeeping for

12  E.g. UNCLOS Art. 94. 13  Regulation 2(e)(i) of the Annex to the International Convention for the Safety of Life at Sea of 1 November 1974, as regularly amended (SOLAS). 14  Section 1, A, to the Convention on Facilitation of International Maritime Traffic of 9 April 1965, 591 UNTS 266, as amended.

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Seafarers (STCW).15 The Paris Memorandum of Understanding on Port State Control refers both to “crew” and “seafarers”,16 without defining either term. While early labour treaties referred to “seamen”, later instruments changed to the gender-neutral term “seafarer”.17 However, the use of a common term has not always been consistent, as definitions of these terms do not always coincide.18 In the absence of a commonly agreed term and definition, this paper will refer to “seafarers”, this being the term that is currently used in most labour law and other maritime treaties. The definition that probably best represents the characteristics of people working in the modern industry can be found in the Maritime Labour Convention (MLC),19 according to which “seafarer means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies.”20 This definition centers on the fact that, to be a seafarer, a person must be working on the ship. Seafarers are therefore to be distinguished from passengers, stowaways and other persons who may be on board a vessel, without however working on it.21 For the rest, the definition of “seafarer” in the MLC is intentionally broad so as to include different categories of persons working on board vessels under different contractual arrangements and p ­ erforming

15  International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), 1978, as amended. The Convention however provides a series of definitions of categories of seafarers, such as “master”, “officer” and “rating”, Regulation I/1, Annex to the STCW (STCW Annex). 16  Compare, for example, Section 3.6 of the Paris Memorandum of Understanding on Port State Control (text available at ) (Paris MOU) and Section 1 of Annex 1 Paris MOU. 17  For examples of the first see early ILO treaties, such as the Convention for Establishing Facilities for Finding Employment for Seamen, of 10 Jul 1920, now superseded by the MLC. “Seamen” was used also by other contemporary treaties, e.g. the International Convention for the Safety of Life at Sea, 20 January 1914. For a more recent use of the term see the Agreement Relating to Refugee Seamen of 23 November 1957, 56 UNTS 125. 18  Sub-Group of the High-Level Tripartite Working Group on Maritime Labour Standards (first meeting), Duplicative or contradictory text in the existing maritime instruments, ILO doc. STWGMLS/2002/4, p. 2 available at . 19  Maritime Labour Convention of 23 February 2006 (MLC). 20  MLC Art. 2(1)(f). 21  Other people on board a vessel include pilots, state officials visiting the vessel and people rescued by the vessel, before they are disembarked to a place of safety.

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different tasks.22 The use of vessels for activities other than transport of goods and people and fishing has resulted in the diversification of the profiles of workers required to run ships. This is particularly evident on cruise ships, which employ cleaning personnel, bartenders, waiters, sports instructors, hairdressers, aestheticians and other professional categories alongside seamen. The broad notion of “seafarer” endorsed in the MLC permits to include also all these individuals within the scope of the Convention and therefore to extend to them the protection granted by its provisions.23 Some doubts still remain for riding gang members and pilots who spend long periods on board vessels, such as those that accompany ships navigating through the North-East Passage.24 The MLC, however inclusive, does not apply to all person working on all vessel, as it also includes some exceptions concerning mainly fishing vessels and state vessels.25 The former are the object of a specific convention, the 2007 Work in Fishing Convention, which has not yet entered into force.26 The definition of “fishers” endorsed by this treaty mirrors the broad definition of the MLC in disregarding the type of contractual arrangements and tasks entrusted to a person, as it includes every person employed or engaged in any capacity or carrying out an occupation on board any fishing vessel, including persons working on board who are paid on the basis of a share of the catch but excluding 22  MLC Art. 2(1)(g) further clarifies that “seafarers’ employment agreement includes both a contract of employment and articles of agreement”. Seafarers can also be self-employed; cfr. M.L. McConnell, D. Devlin and C. Doumbia-Henry The Maritime Labour Convention 2006 (Martinus Nijhoff, Leiden: 2011), 180. 23  Ibid., 180–181. Adoption of an instrument to consolidate maritime labour standards, Report I(1A) to the International Labour Conference, 94th (Maritime) Session, 2006 available at . 24  MLC Art. 2(3) provides that “In the event of doubt as to whether any categories of persons are to be regarded as seafarers for the purpose of this Convention, the question shall be determined by the competent authority in each Member after consultation with the shipowners’ and seafarers’ organizations concerned with this question”. Doubts however still remain concerning some categories, for example riding gang members. Compare for example ITF The Maritime Labour Convention, 2006—A Seafarers’ Bill of Rights available at 2, according to which “seafarer” includes “riding gangs and hotel staff on cruise ships—anyone working on board” with Marshall Islands Marine Notice No. 2-011-33, Rev 8/14 available at 24, according to which “[r]iding gang members, tank cleaning crews and port workers are not considered seafarers”. 25  MLC Arts. 2(2) and 2(1)(i) read with Art. 2(4). 26  Work in Fishing Convention (No. 188) of 14 June 2007.

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pilots, naval personnel, other persons in the permanent service of a government, shore-based persons carrying out work aboard a fishing vessel and fisheries observers.27 The exceptions to the broad definition of seafarer contained in MLC Article 2(1)(f) are due to political and contingent reasons and do not detract from the fact that all people working on any vessel may face similar issues.28 Consequently, for the purposes of this paper these exceptions will be disregarded and “seafarer” will be taken to include any person working on board a vessel, including fishing vessels.

The Traditional Approach

Customary international law, as developed over past centuries, provides two criteria for establishing the state that can exercise jurisdiction over seafarers: nationality of the person and nationality of the vessel (in other words, the flag).29 This double criterion is endorsed, for example, in the UNCLOS rule relating to collisions at sea or other incidents of navigation, when it is provided that no penal or disciplinary proceedings may be instituted against [the master and crew] except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.30 Nationality as a criterion for the determination of jurisdiction is not specific to the law of the sea, but derives from general rules of international law, that apply to land as well as to the sea.31 Under law of the sea rules, nationality serves as a criterion for determining jurisdiction, among others, in rules on the protection and preservation of marine living resources on the high seas. 27  Art. 1(e) Work in Fishing Convention. 28  McConnell, Devlin and Doumbia-Henry, note 22 at 193–194. 29  A.D. Watts, “The Protection of Alien Seamen” (1958) 7 International & Comparative Law Quarterly 691. 30  UNCLOS Art. 97. 31  See, generally, F.A. Mann “The Doctrine of International Jurisdiction Revisited after Twenty Years” (1985) 186 Collected Courses of the Hague Academy of International Law 9; A.V. Lowe and C. Staker “Jurisdiction” in M.D. Evans (ed) International Law 3rd (Oxford University Press, Oxford: 2010) 313.

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Thus, for example, UNCLOS Article 117 requires the state to “take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas”. Similar provisions are included in Article 7 of the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (FSA).32 Notwithstanding these rules, nationality of the seafarer is not usually used as a jurisdictional link under traditional law of the sea rules, which favor nationality of the ship instead. Flag state jurisdiction has consistently been the primary criterion for establishing which state can exercise jurisdiction over a seafarer. UNCLOS itself often does not distinguish between nationals of the flag state and persons not having its nationality as long as they serve on the same vessel. For example, the duties of the flag state to effectively exercise its jurisdiction extend over the master, officers and crew of any vessel flying its flag, irrespective of their nationality.33 Similarly, UNCLOS prescribes that notifications concerning enforcement action against seafarers must be communicated to the diplomatic agents or consular officers of the flag state, rather than the state of nationality of the seafarer.34 Other treaties also often follow this paradigm; for example, the STCW provides that certificates of competency shall be issued only by the flag state,35 and the 1957 Agreement Relating to Refugee Seamen, which is a refugee law instrument rather than a maritime one, makes reference to the flag state of the vessel on which the refugee seafarer works.36 The special link between the seafarer and the state of the flag has been underlined by the International Tribunal for the Law of the Sea (ITLOS), when it affirmed that 32  United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 December 1995 (FSA). Nationality, of both physical and juridical persons, is also at the basis of the regime applicable to activities of exploitation and exploration of the resources of the International Seabed Area (Area), in particular concerning liability and compensation, provided for in UNCLOS Article 139, and adjudicative jurisdiction, provided for by UNCLOS Article 235(2). The former provision attributes jurisdiction to the state not only with respect to natural or juridical persons directly engaged in activities in the Area, but also to its nationals effectively controlling companies engaged in the activities mentioned. 33  UNCLOS Art. 94(2)(b), which does not distinguish between nationals and non-nationals. 34  UNCLOS Arts. 27(3) and 231. See also Regulation 19 SOLAS. 35  Regulation I/2 STCW Annex. 36  Art. 2(a) Agreement Relating to Refugee Seamen.

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the Convention considers a ship as a unit, as regards the obligations of the flag State with respect to the ship and the right of a flag State to seek reparation for loss or damage caused to the ship by acts of other States and to institute proceedings under article 292 of the Convention. Thus the ship, every thing on it, and every person involved or interested in its operations are treated as an entity linked to the flag State. The nationalities of these persons are not relevant.37 The strength of flag state jurisdiction can be fully appreciated not only when compared to that of the state of nationality, but also to that of the coastal or port state. Absolute while on the high seas, the jurisdiction of the flag state gives way to that of the coastal state only in few instances even in the latter’s maritime zones. These exceptions are mostly related to events that affect the coastal community.38 Otherwise, even when the vessel was in the ports of another state, the latter would traditionally abstain from intervening in the internal matters of the vessel, resulting in seafarers often being left to the mercy of the flag state.39 The pre-eminence of flag state jurisdiction does not entirely replace nationality of the person. The latter still plays a role, among other cases, in the exercise of diplomatic protection. This view was adopted by the International Law Commission (ILC) when codifying rules on diplomatic protection. Article 18 of the draft articles on diplomatic protection endorses both the nationality (in this instance, through the exercise of diplomatic protection) and the flag of the vessel as relevant criteria for the exercise of jurisdiction over seafarers.40 In this respect, the ILC noted that: [s]upport for the right of the flag State to seek redress for the ship’s crew is substantial and justified. It cannot, however, be categorized as diplomatic protection. Nor should it be seen as having replaced diplomatic protection. Both diplomatic protection by the State of nationality and

37  M/V Saiga case (No. 2), ITLOS Judgment of 1 July 1999, ITLOS Reports 1999, para. 106 (emphasis added). See also para. 105. 38  UNCLOS Arts. 27 and 28. 39  D.F. Dagenais “Foreign Ships In American Ports: The Question of NLRB Jurisdiction” (1975) 9 Cornell International Law Journal 50. More recently see ECJ, International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti, Judgment (GC) of 11 December 2007. 40  ILC, Draft Articles on Diplomatic Protection with commentaries, 2006.

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the right of the flag State to seek redress for the crew should be recognized, without priority being accorded to either.41

New Jurisdictional Links

The absence of jurisdictional rules making reference to seafarers should not be interpreted as evidence of the lack of relevance of seafarers but rather as a choice of a certain jurisdictional balance that would attribute all jurisdiction to just one state, the flag state. In this respect, seafarers combine two roles, which may both affect the jurisdictional balance: that of the agent and that of the victim. On one hand, they are the people who run the ship and who actually commit any activity which the ship is considered as having performed: fishing, exploiting resources, navigating, transporting drugs, polluting the marine environment, and so on. Thus states are given the right to exercise jurisdiction over the master and crew to prevent them from entering into conduct that is prejudicial for the state’s or the common interest (such as the prohibition of pollution of the marine environment or the prohibition to fish without license); impose on them duties that would further these interests (such as the duty to provide assistance to persons in distress); and provide sanctions for non-compliance with these prohibitions and duties. On the other hand, seafarers are individuals, who may suffer violations of their rights and who should be protected effectively. States therefore are given jurisdiction over seafarers in order to protect them and to ensure that seafarers enjoy their human and labour rights. In both cases, it was the flag state that was entrusted with the duty to protect seafarers on board its vessels and to punish them. The jurisdictional balance was therefore all in favor of one state, with other states having only occasional and marginal jurisdiction. This traditional balancing is seen today as insufficient to ensure compliance with applicable rules aiming at the protection and promotion of common interests, including maritime security and human rights. The constant increase in the world merchant fleet, the spreading of open registries and flags of convenience and the technological developments that have made it possible for vessels to spend more and more time at sea have exacerbated the incapacity of many flag states to effectively control their vessels and exercise their jurisdiction over seafarers on them. The result is that

41  Ibid., commentary to draft Art. 18, para. 8.

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vessels are routinely used for illicit trafficking of drugs, arms and people and for other illegal activities, including IUU fishing.42 In addition, the emergence of human rights as core rules of international law and the shift of focus from the state-centered post-Westphalian international community towards new configurations that attribute a prominent role to individuals have led to a change in sensibility and the unwillingness to put up with conduct that violates human rights.43 In this context, lack of effective exercise of jurisdiction over seafarers often results in serious violations of fundamental human rights taking place on board vessels not being met with appropriate response. Whether due to inability or unwillingness, lack of control by the flag state is beginning to be considered as unacceptable.44 Since the application of both human rights and labour rights requires the existence of jurisdiction, an alteration of the jurisdictional balance may be required in order to ensure that seafarers’ rights are effectively protected and promoted. All these factors have led states to try and overcome the traditional balancing which saw the flag state as the sole state having jurisdiction over seafarers. Recent developments tend to result in treaties that purport to increase the number of states having jurisdiction on—and therefore, the legal right to intervene in favor or against—seafarers, so as to ensure, depending on the circumstances of the case, their protection or their punishment. This is particularly evident in two areas: maritime labour and maritime security. Maritime Labour Seafarers work and live in a difficult environment, which by itself poses dangers for their life and physical integrity. Maritime incidents still form the order of the day, causing the loss of many lives. Fishing and shipping remain the two most dangerous occupations worldwide and fatal incidents are numerous even in developed countries. For example, during 1996 to 2005 the fatal accident rate in the UK fishing industry was 115 times higher than that in the general workforce of Great Britain, 24 times higher than in the construction industry and 81 times higher than in manufacturing.45 In the US, fatal work 42  R. Rayfuse “Countermeasures and High Seas Fisheries Enforcement” (2004) 51 Netherlands International Law Review 41. 43  J. Klabbers, A. Peters and G. Ulfstein The Constitutionalization of International Law (Oxford University Press, Oxford: 2011). 44  See the contribution by Urfan Khaliq to this volume. 45  S.E. Roberts and J.C. Williams Update of mortality for workers in the UK merchant shipping and fishing sectors Report for the Maritime and Coastguard Agency and the Department for Transport, MCA Research Project 578, July 2007.

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injury rate for fishers and related fishing workers is 152.00, as opposed to the allworker fatal injury rate of 3.60.46 Fishermen in Britain have a one in 20 chance of being killed on the job during the course of their working lives.47 Seafarers fare a little better: the fatal accident rate in UK merchant shipping was 12 times higher than in the general workforce of Great Britain, 2½ times higher than in the construction industry and 8½ times higher than in manufacturing.48 In conjunction to the inherent danger of physically being in a hostile environment, during their permanence at sea seafarers often risk violations of their fundamental rights from the willful conduct of other humans, be they acting as state organs or in a private capacity.49 The remoteness of vessels, in conjunction with the limited enforcement capabilities of states, have often led to inhuman working and living conditions on board fishing vessels and other commercial vessels. Treatment reported amounts to torture and inhuman and degrading treatment, as well as to the violation of a number of other human rights, including labour rights.50 Illegal fishing operations in particular are often characterized by the lowest standards of working conditions and extensive reports of abuse.51 Lack of safety equipment and training, long working hours, refuse to pay for work, verbal and physical abuse, abandonment of crew members have been documented in many cases.52 Furthermore, trafficking of

46  Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI) available at (visited 14 January 2013). See also information provided by National Institute for Occupational Safety and Health (NIOSH) available at . 47  . Roberts and Williams, note 45. 48  Ibid. 49  For a historical perspective on the difficulties encountered by seafarers, see A.D. Couper “Historical Perspectives on Seafarers and the Law” in D. Fitzpatrick and M. Anderson (eds) Seafarers’ Rights (Oxford University Press, Oxford: 2005) 3. 50  A.D. Couper Voyages of abuse: seafarers, human rights and international shipping (Pluto 1999); ITF, Out of Sight, out of Mind—Seafarers, Fishers & Human Rights (2006) available at ; EJF All at Sea—The Abuse of Human Rights aboard Illegal Fishing Vessels (2010) available at . 51  M. Gianni and W. Simpson The Changing Nature of High Seas Fishing (2005) available at . 52  Recent reports have focused on such instances, see International Labour Office Conditions of Work in the Fishing Sector. A Comprehensive Standard (a Convention supplemented by a Recommendation) on Work in the Fishing Sector (2003) available at ; EJF, note 50; ITF, note 50.

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persons for slave labour on board vessels is taking place in different regions across the world and involves both developing and developed states.53 Conditions of life and work on board the vessel were traditionally included within the exclusive jurisdiction of the flag state not only when the vessel was navigating on the high seas, but also when in port. A first breach to this exclusivity derived from the need to ensure the safety of vessels. In particular, under the SOLAS convention the responsibility to ensure that a vessel is safe sits not only with the flag state, but also with the port state.54 The MLC has built on this precedent and has further expanded the categories of states that have jurisdiction in matters concerning seafarers. The flag state, port state and state of recruitment all play a role over the application and control of labour standards. Their duties are defined by MLC Article 5, providing as follows: 1. Each Member shall implement and enforce laws or regulations or other measures that it has adopted to fulfil its commitments under this Convention with respect to ships and seafarers under its jurisdiction. 2. Each Member shall effectively exercise its jurisdiction and control over ships that fly its flag by establishing a system for ensuring compliance with the requirements of this Convention, including regular inspections, reporting, monitoring and legal proceedings under the applicable laws. 3. Each Member shall ensure that ships that fly its flag carry a maritime labour certificate and a declaration of maritime labour compliance as required by this Convention. 4. A ship to which this Convention applies may, in accordance with international law, be inspected by a Member other than the flag State, when the ship is in one of its ports, to determine whether the ship is in compliance with the requirements of this Convention. 5. Each Member shall effectively exercise its jurisdiction and control over seafarer recruitment and placement services, if these are established in its territory. 6. Each Member shall prohibit violations of the requirements of this Convention and shall, in accordance with international law, estab53  ILO, Caught at Sea. Forced Labour and Trafficking in Fisheries (2013) . 54  E.J. Molenaar “Port State Jurisdiction: Toward Comprehensive, Mandatory and Global Coverage” (2007) 38 Ocean Development & International Law 225.

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lish sanctions or require the adoption of corrective measures under its laws which are adequate to discourage such violations. 7.  Each Member shall implement its responsibilities under this Convention in such a way as to ensure that the ships that fly the flag of any State that has not ratified this Convention do not receive more favourable treatment than the ships that fly the flag of any State that has ratified it. The MLC thus overcomes the traditional exclusivity of the jurisdiction of the flag state and establishes jurisdictional linkages between seafarers and other three states: the flag state, the port state and the labour-supplying state, the specific responsibilities of each being detailed in the Code.55 Since its adoption in 2006, the number of states bound by the MLC has rapidly increased. As of December 2014, 64 states, representing more than 80% WGT, have ratified the MLC.56 Parties include a number of states that have a significant fleet, such as Panama, Cyprus and Malta, as well as states that provide a significant number of seafarers, such as the Philippines. It could therefore be argued that the MLC represents a generally accepted international regulation, according to UNCLOS Article 94(5). If this is the case, then the changing jurisdictional balance endorsed in the MLC would not be limited to its parties, but would affect many more states.57 Furthermore, the MLC could lead the way towards an even further broadening of the spectrum of states that have jurisdiction over seafarers. Paragraph 1 of MLC Article 5 is of particular interest in this respect, as it would seem to imply that states other than the flag and coastal states and the state of recruitment may be under the duty to ensure adherence to the MLC standards. In particular, reference to ships under the jurisdiction of a state, taken literally, would mean that also coastal states could be in a position to apply the MLC to ships—and therefore to seafarers on board them—which are found within their maritime zones whenever they can exercise jurisdiction over them.58 55  McConnell, Devlin and Doumbia-Henry, note 22 at 211. It would seem however that some states wanted to avoid a duty to punish activities beyond their territorial jurisdiction (ibid. at 213). 56   Updated information on ratification available at the ILO dedicated website at