Bergen Presentation 26 Nov 24HR

26November 2024BergenOutlineIntroductionThe grey fleetUNCLOSMain navigational rightsPrescription & enforcement (ex post, ex ante)StraitsCivil liability issuesPipelinesMore clear -cut gapWithin UNCLOSBalancing rules, balancing of interestsDynamic interpretationBeyond UNCLOSTerrorism?Other jurisdictional bases, necessity, and reasonableness considerationsCivil law enforcement measures?Testing legal limits?Measures to Respond to Environmental Threats Stemming fromthe Russian Shadow Fleet in the North Sea and the Baltic Sea3Scandinavian Institute of MaritimeLawPublic international law regionalConventions, Annexes, etc.e.g. Helsinki ConventionNational legislationLegislation , implementation , enforcementMultiple layers of regulationEuropean UnionDirectives, Regulations , decisions , funding ,enforcementPublic international law -globalConventions, Protocols etc.e.g. MARPOL, CLCRegional /local rulesLegislation , implementation , permits etc.Flag State Coastal -/ port StateHigh seasMinimum:‘Generally acceptedinternational rules andstandards ’(GAIRAS)(i.e. SOLAS, Marpol ,STCW etc.)IMO Res. A 1192(33)‘Due regard ’ ofinterestofother states (art87(2))No, butlimited env. enforcement jurisdictionover ships+ exceptions : piracy , broadcast ...Sovereign rights over resources , economicexploitationJurisdiction : envprotMax: GAIRAS’Due regard ’(art 58(3))‘Castaneda formula ’ (art 59)EEZ, CSStarting point: territorial sovereigntyException : innocent passage (as longas notprejudicial to peace , good order security ofcoastal state)Internal rules, + Max: GAIRAS CDEMTerritorial seaInternal waters,portsNot much provisionsStarting point: territorial sovereignty , internalrules apply max: ?Prescriptive jurisdictionFlag State Coastal -/ port StateHigh seasStarting point:Unconstrained enforcementjurisdiction ,in all seaareasNo, (Article 97, 94(6)), butlimited env.enforcement jurisdiction over ships (env. (art220))+ exceptions : piracy , broadcast ...+ ex post jurisdiction e.g. Art 218, + generalinternational lawEEZ, CS Discharges, threats ofmajor damage (Article220(3 -5)),Natural resources (art 73)Terr. sea Discharges (art 220(2))Full enforcement in case ofloss ofright ofinnocent passageClear enforcement jurisdiction (internalmatters exception ?)Extent ofex-post jurisdiction uncleaqr (linksto prescriptive jurisdiction )Safeguards (noundue delay, proportionalityetc.) Internal waters, portsEnforcement jurisdictionUNCLOS Article 2202. Where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has,during its passage therein, violated laws and regulations of that State adopted in accordance with thisConvention or applicable international rules and standards for the prevention, reduction and control ofpollution from vessels, that State, without prejudice to the application of the relevant provisions of Part II,section 3, may undertake physical inspection of the vessel relating to the violation and may, where theevidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws,subject to the provisions of section 7.....5. Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or theterritorial sea of a State has, in the exclusive economic zone, committed a violation referred to inparagraph 3 resulting in a substantial discharge causing or threatening significant pollution of themarine environment , that State may undertake physical inspection of the vessel for matters relating to theviolation if the vessel has refused to give information or if the information supplied by the vessel is manifestlyat variance with the evident factual situation and if the circumstances of the case justify such inspection.6. Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or theterritorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3resulting in a discharge causing major damage or threat of major damage to the coastline or relatedinterests of the coastal State , or to any resources of its territorial sea or exclusive economic zone, that Statemay, subject to section 7, provided that the evidence so warrants, institute proceedings , including detentionof the vessel, in accordance with its laws.Safeguards (in the context of enforcement)UNCLOS Part XII, section 7 (articles 223 -233) includes a series of safeguards toensure that coastal/port states do not abuse their powers in relation to foreign ships,e.g. by keeping them too long in the port, or by awarding unreasonably harshpenalties. Three of the articles deserve particular mention:•Article 226: certain limitations on physical investigations of ships, a requirement ofprompt release, and the acceptance of reasonable financial securities.•Article 228: suspension of proceedings in case of flag State action within 6 months.However, this does not apply if the coastal state proceedings “relate to a case ofmajor damage to the coastal State or the flag State in question has repeatedlydisregarded its obligation to enforce effectively the applicable international rulesand standards in respect of violations committed by its vessels.”•Article 230 calls for monetary penalties only, in most cases of environmentalviolations.11Scenario I – Focus on the Danish StraitsThe Danish Maritime Area12Source of the base maps: Energistyrelsen, “Figur 1. Kort over 33 områder med aktive ansøgte ÅD -projekter”.Scenario II - Focus on the Strait of Dover and the Gulf of Finland14Some notes on civil liability concerns•Robust international regime in place for oil tankers•CLC (strict liability, compulsory insurance, fund (receivers),supplementary fund...)•Fund covers even uninsured vessels.•Less protection for incidents involving other ships•Chemical tankers, LNG carriers a particular cause ofconcernIn conclusionGrey fleet actions•Collaboration (flag state, other coastal and port states)•Drawbacks of regional sanctions•UNCLOS–Environmental rules–Straits–Balancing rules, balancing of interests (note e.g. Ruby )–Closing trade?–Difference between abstract limitations and targeting individual ships•Public international law–Ex post jurisdiction–Other jurisdictional bases, necessity, and reasonableness considerations•Civil law enforcement measures?Cables & PipelinesJurisdiction Cables and pipelinesEEZ Prescriptive Right to lay (art 58(1))Jurisdictional conflicts (art 59)Enforcement Starting point: like the high seasEnvironmental jurisdiction (arts: 220, 221, 73(1))Continental shelf Prescriptive Right to lay (art 79(1))Particular rights re own installations (art 79(4))Pollution and direction (art 79(2, 3) (only pipelines, not cables)Drilling (exclusive) (art 81)Environmental provisions (art 208)Enforcement -But some measures to support environmental rules (art 214)High seas Prescriptive FreedomsDamage to cables and pipelines (art 113)Enforcement Environmental enforcement (necessity)(Right to visit (art 110))Cables and pipelines: relevant provisionsCables and pipelines: some starting points•More clearly a regulatory gap in relation to cables & pipelines•In particular if (flag) state is behind damage•Few legal sources available, aside from UNCLOS•Two approaches:– Absent specific provisions, no jurisdiction– Gaps must be interpreted in the light of systematics, context andgeneral international law•Potentially relevant: Arctic Sunrise (2015, PCA 2014:2, NL v. Russia ):“The Tribunal shall examine the law enforcement measures that may have been available to Russia under theConvention, or otherwise, as well as any other possible legal bases for its measures not involving lawenforcement in the strict sense , but more broadly related to the protection of its rights and interests as the coastalState in the EEZ.”Potential bases for greater enforcementjurisdiction (within UNCLOS)•Environmental jurisdiction–Vessel -source pollution (arts 220, 221)–Natural resources (art 73(1))–CS activities (art 208, 214)•Damage to cable/pipeline–Article 113: punishable, flag state (also later developments, e.g. SUAConvention)•Jurisdiction over cables and pipelines to own installations (notinvolving third party transit) (art 79(4))•Balancing rules (‘due regard’, abuse of rights, art 59)UNCLOS – Castañeda formulaArticle 59Basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in theexclusive economic zoneIn cases where this Convention does not attribute rights or jurisdiction tothe coastal State or to other States within the exclusive economic zone,and a conflict arises between the interests of the coastal State and anyother State or States, the conflict should be resolved on the basis ofequity and in the light of all the relevant circumstances, taking intoaccount the respective importance of the interests involved to the partiesas well as to the international community as a whole.Dynamic interpretation of UNCLOS•Preamble:“Prompted by the desire to settle, in a spirit of mutual understanding and cooperation, all issuesrelating to the law of the sea and aware of the historic significance of this Convention as an importantcontribution to the maintenance of peace, justice and progress for all peoples of the world”•Framework convention, ‘constitutional’ nature, in -built flexibility•Theme clearly comes within the scope of UNCLOS,systematically ‘limping’ without rules•Can prescriptive jurisdiction in itself presume the existence ofsome enforcement jurisdiction?(cf. marine scientific research)•Arctic Sunrise reasoning (‘broader context’)•Balancing of interestsPotential legal bases for greater enforcementjurisdiction (beyond UNCLOS)•UNCLOS preamble: “matters not regulated by this Convention continue to begoverned by the rules and principles of general international law”•Extraterritorial jurisdiction (ex-post jurisdiction)•Countermeasures, necessity (ASRIWA, art 25)•Reasonableness, necessity & proportionality in responseCivil law measures•Arrest, maritime claims, civil jurisdiction (also art. 27)•Forum, choice of law, recognition of judgments, time barsIn conclusionPotential bases for increased enforcement jurisdiction with respect to cable sabotage•Collaboration (flag state, other coastal and port states)•UNCLOS–Environmental rules–Balancing rules, balancing of interests–Dynamic interpretation•Public international law–Terrorism?–Other jurisdictional bases, necessity, and reasonablenessconsiderations•Civil law enforcement measures?•Testing legal limits?Thank s foryour attention !Any questions ?Alexander Lottalexander.lott@uit.noHenrik Ringbomhenrik.ringbom@abo.fi25