Official blog of Swansea University's IISTL, where we keep you up to date with the latest maritime and commercial legal news.
Author: Dr Youri van Logchem
Dr. Youri van Logchem is a senior lecturer at the Institute of International Shipping and Trade Law, at Swansea University, teaching primarily in the areas of general international law, international energy law, and international law of the sea. He wrote his PhD thesis on the rules and obligations of States in disputed maritime areas at the Netherlands Institute for the Law of the Sea (NILOS), Utrecht University. In addition, he has published several articles and book chapters, which have been cited before international courts and tribunals. His monograph entitled "The Rights and Obligations of States in Disputed Maritime Areas" has been published with Cambridge University Press. Youri has also received awards for academic achievements, including the Rhodes Academy Submarine Cables Award, and has presented at various conferences around the world.
The Institute of International Shipping and Trade Law is organizing a one-and-a-half-day in-person workshop on the important and topical theme of ‘The Protection of Vulnerable People at Sea’ (17-18 May, Swansea University).
Confirmed panellists are:
Dr Zoumpoulia Amaxilati (ISTL)
Professor Richard Barnes (University of Lincoln & University of Tromsø)
Professor Richard Collins (Queen’s University Belfast)
Professor Edwin Egede (Cardiff University)
Professor Steven Haines (University of Greenwich)
Neil Henderson (Gard AS)
Dr Richard L. Kilpatrick, Jr. (College of Charleston)
Andrea Longo (One Ocean Hub)
Professor Irini Papanicolopulu (SOAS University of London)
Dr Aphrodite Papachristodoulou (University of Galway)
Francesca Romana Partipilo (Sant’Anna School of Advanced Studies)
Matilde Rocca (University of Padova)
Dr Mercedes Rosello (Leeds Beckett University)
Dr Jessica Schechinger (University of Glasgow)
Chris Whomersley (Former Deputy Legal Adviser, Foreign, Commonwealth and Development Office)
Sir Michael Wood KC, Barrister (Twenty Essex Chambers, London)
The full programme of the workshop can be found here.
On 20 October 2022, a submarine telecommunication cable running between the Orkney Islands and the Shetland Islands snapped. In its wake, a major incident was declared by the Scottish police, as the Shetland Islands were almost completely cut-off from the outside world as a result. A few weeks earlier, another telecommunications cable laying off the coast of Shetland Islands broke; this cable connects the United Kingdom and Denmark, making a landfall in the Faroe Islands (reportedly, this same cable was damaged in the previous month of September). Hence, in relatively short succession, two cable segments of the same cable system, SHEFA-2, were damaged. SHEFA-2 is a 1000 kilometres long submarine cable system, connecting via different cable segments the United Kingdom to the Danish Faroe Islands. After the breaking of the cable connecting the Orkney Islands and the Shetland Islands, connectivity was relatively quickly restored, as it took approximately one day to make the necessary repairs. As to the cause of the break of the cables, several theories were initially floating around on the Internet, one of which was that the cables were wilfully damaged, because the breaking of two connecting cables in such short succession would be too much of a coincidence. Although the breaking of two adjacent cables is rare indeed, an alternative explanation, and a less nefarious one at that, would be that the breaking of the cables is tied to either the harsher weather conditions or extensive fishing activity within the North Sea.
Irrespective of the cause lying behind the breaking of these two submarine cables, events such as these bring the issue of the protection of submarine telecommunication cables, due to their significance, into the limelight.
Most international communications do not run via satellites high up in space, but rather via underwater cables, which are placed on or buried in the seabed, usually in waters deeper than 1500 meters. They form the backbone of international communications, with them being used in about 97% of the world’s communications.[i] However, submarine telecommunication cables are susceptible to damage from natural disasters, hydrocarbon exploitation, shipping activities, rough weather, but also targeted attacks, including from terrorists, which all can be counted among the activities that carry the potential of breaking or injuring submarine cables. One of the main threats is dredging and anchoring by fishers, however. Once a submarine telecommunication cable is damaged, this can lead to a serious disruption in communications, which lays bare the need for its quick repair. The impact of when cables are damaged was vividly illustrated by when communications in the Shetland Islands were significantly disrupted for some time due to the damage caused to a cable lying off their coast. Although after the cable connecting the Orkney Islands and the Shetland Islands broke, connectivity was restored within a day or so, when seen in a broader light not all can be considered right with the protection of submarine telecommunication cables, not least from a legal point of view. An example is that when after a volcanic eruption in January 2022 the sole cable on which the island State of Tonga is virtually dependent for maintaining its international communications snapped, Tonga found itself virtually isolated from the world almost completely for close to a month.
Quite regularly, submarine telecommunication cables pass through different maritime areas, also of more than one coastal State. Although this is not the case for the second cable that broke off the coast of the Shetland Islands (i.e., the one connecting the Orkney Islands and the Shetland Islands), the earlier damaged cable connecting the Shetland Islands to the Faroe Islands is an example of a cable lying between two different coastal States; i.e., Denmark and the United Kingdom. Depending on the submarine cable segment involved, the applicable international legal rules and the extent of coastal state authority may vary. Submarine cables may be located in a maritime area that is under the sovereignty of a coastal state (e.g., the territorial sea), an area that is within functional coastal state jurisdiction (i.e. the exclusive economic zone (EEZ), and the continental shelf), or an area beyond coastal State jurisdiction (i.e., the high seas).[ii] In a nutshell, beyond the territorial sea (and archipelagic waters) where coastal State enjoy sovereignty, the 1982 Law of the Sea Convention (LOSC) provides that all states have the right to lay, maintain, and repair transit submarine cables (Articles 58(1), 79(1), and 87(1)(c) of the LOSC).
Within the LOSC, there are some specific provisions dealing with the protection of submarine cables, especially with respect to the EEZ and continental shelf, whose roots can be retraced to the 1884 International Convention for the Protection of Submarine Telegraph Cables and the 1958 Geneva Convention on the High Seas. More specifically, the relevant provisions can be found in Articles 113-115 of the LOSC.[iii] One obligation flowing from Article 114 of the LOSC is that coastal States must make laws and regulations, providing that when during the laying or repairing of a new submarine cable, a break or injury is caused to a submarine cable already in place, the owner of the new cable is liable for damages caused.
While cable protection is addressed in the LOSC, some weaknesses are laid bare upon closer analysis. One such weakness, being more general in nature, is that the LOSC does not obligate coastal States to adopt laws and regulations to protect submarine cables within their territory, including in port or in the territorial sea.[iv] In the light of that cables are particularly vulnerable in shallow(er) waters, it is very much desirable that coastal States criminalise the intentional, or through negligence, damaging of submarine cables located within their territory. Connected to this, often, the source of difficulties arising concerning cable protection can be retraced to the coastal States themselves. In this vein, whereas in certain States a domestic legal framework is completely absent, in others it may be inadequate or antiquated.[v] Although comparatively more infrequent, cable breaks are not isolated to shallow(er) waters, as is also illustrated by the breaking of the cable that connects the Shetland Islands to the Faroe Islands. Beyond the territorial sea, submarine cables are more regularly placed directly on the seabed, rather than buried in the subsoil, rendering them vulnerable to damage from competing activities, such as anchoring and dredging. Another difficulty is that despite the obligations the LOSC places on coastal States by way of Articles 113-115 of the LOSC, requiring States to introduce domestic legislation on certain issues surrounding cable protection in the EEZ and continental shelf, several of them have not done this.
A lack of awareness as to the significance of submarine cables continues to be a factor lying behind cable protection not always attracting the legal attention it requires from coastal States.[vi] Parallel to this, activities related to submarine cables are undertaken mainly by private actors and not States themselves. However, this does not mean that States have no role to play in regard of this critical infrastructure, as they, among others, retain the responsibility to ensure a submarine cable network is sufficiently resilient, meets safety and security requirements, and that cable repairs can be made as swiftly as possible.
Cable repairs is another problematic issue, as certain States around the globe have regulations and laws on the books that significantly complicate undertaking the necessary repair work by the submarine cable industry after a cable has been damaged.[vii] But that is another story, one that is beyond the scope of this blog.
[ii] Youri van Logchem, ‘Submarine Telecommunication Cables in Disputed Maritime Areas’ (2014) 45(1) Ocean Development & International law, pp. 108-111.
[iii] Douglas Burnett et al., ‘Overview of the International Legal Regime Governing Submarine Cables’ in Douglas Burnett et al. (eds.), Submarine Cables: The Handbook of Law and Policy (Maritinus Nijhoff, 2014), pp. 84-87.
[v] Robert Wargo and Tara Davenport, ‘Protecting Cables from Competing Uses’, in Douglas Burnett et al. (eds.), Submarine Cables: The Handbook of Law and Policy (Maritinus Nijhoff, 2014), p. 263.
There remain several disputed maritime areas in the Mediterranean Sea, including between Cyprus and Turkey, and Israel and Lebanon. A pattern that can be observed in these disputed maritime areas is the following: after licences/concessions for mineral resource activity in respect of defined areas that extend into the disputed waters are activated, conflict almost invariably follows between the neighbouring coastal States concerned.[i] In a similar vein, at the beginning of June 2022, following a period of relative calm, a conflict was created between Israel and Lebanon because of the former activating a gas concession extending into their disputed exclusive economic zone (EEZ)/continental shelf area. More specifically, on 5 June 2022, a floating gas production platform, belonging to Energean, which was licensed by Israel to start gas exploitation, arrived at the Karish field; the latter is located in a part of the Eastern Mediterranean to which both Israel and Lebanon lay claim. The Israeli navy has been accompanying the production platform for protective purposes. Upon learning of the arrival of the production platform in the disputed waters, Lebanon protested, referring inter alia to it as an ‘aggressive action’. Lebanon argued that Israel must refrain from such action as long it remains unclear where the maritime boundary lies between the two adjacent States. Hezbollah cautioned Israel that progressing to the exploitation stage would meet with a violent response. However, the production platform, which is now located in a more southern part of the Karish field, has not yet begun exploitation drilling; and it will be several months before the necessary infrastructure is in place that would enable this. On 3 July 2022, reports emerged that Israel shot down three drones that were on their way to the Karish field, which were seemingly dispatched by Hezbollah without the approval of the Lebanese government. This blog post will start with sketching the general background to the maritime boundary dispute between Israel and Lebanon and will then move to discuss whether authorising a floating gas production platform to move into a disputed EEZ/continental shelf area with a view towards gas extraction can be considered lawful under international law.
The underlying maritime boundary dispute
Complicating matters between Israel and Lebanon is the absence of diplomatic relations between them,[ii] as the two States are officially still at war. As a consequence, there have been no direct negotiations, but the United States of America (US) has been acting as a mediator in this maritime boundary dispute for several years now. On the day that the gas platform arrived at the Karish field, the president of Lebanon invited Amos Hochstein, who has been the US mediator since 2020, to Beirut to express Lebanon’s misgivings with the unilateral move of Israel. In these talks, the Lebanese president reiterated Lebanon’s position that the maritime boundary lies at ‘Line 29’ (see map below). The salient aspect of ‘Line 29’ is that it cuts through the middle of the Karish field. This claim of Lebanon was not new, as it had first emerged in 2020. After this, the indirect negotiations that were ongoing at the time with Israel reached a deadlock, because Israel viewed this claim as being ‘excessive’. By way of comparison, Lebanon has also suggested ‘Line 23’ at times during negotiations (see map below), pursuant to which the Karish field would be located in its entirety on Israel’s side. For instance, this was Lebanon’s position as “a gesture of goodwill”, during indirect talks at the beginning of 2022, and has seemingly been its commonly held position in the period between 2011-2020. The change on the part of Lebanon in 2020 as to its position on where the maritime boundary lies seems partly tied to a change in its negotiation team, which reportedly blamed the previous one for possessing a ‘lack of techincal and legal expertise’. A further reason that has been adduced as underpinning the revision of Lebanon’s negotiation position – in that it shifted to ‘Line 29’ – was new case law, including the 2021 judgment of the International Court of Justice (ICJ) in Somalia v. Kenya,[iii] which was felt to support the Lebanese argument that the boundary between Israel and Lebanon in the Eastern Mediterranean lies further south than it would under ‘Line 23’.
In the weeks following the renewed tensions between Israel and Lebanon that were set in motion by the arrival of the floating gas production platform in their disputed maritime area, news reports emerged suggesting that Lebanon would be willing to abandon its claim over the Karish field altogether. This was conditioned on that Israel in return would relinquish any claim over the Qana field, which is located north of the Karish field. Under a proposal of Frederick Hoff (see map below), who was the US mediator between 2010-2012, it was envisaged that the Qana field would be divided between Israel and Lebanon, with the latter receiving a slightly more sizable part (i.e. 57% of the field). Whilst Israel seems to have been willing to accept the proposal, it received a lukewarm reception from Lebanon, more specifically from Hezbollah. The latter is fiercely opposed to the prospect of having to cooperate with Israel in the exploitation of the Qana field, as it could be interpreted as that the relations between Israel and Lebanon were normalising which is antithetical to Hezbollah’s goals.
States’ obligations in disputed EEZ or continental shelf areas
From an international law perspective, Israel’s unilateral action gives rise to several questions. One question is to what extent authorising a floating gas production platform to move into the Karish field, and the possible future undertaking of gas exploitation in a maritime area of overlapping EEZ or continental shelf claims, can be reconciled with the obligations a coastal State has under international law? The incident involving the floating gas production platform has been preceded by other clashes between Israel and Lebanon, which were similarly sparked by the undertaking of activities related to mineral resources within disputed waters of the Eastern Mediterranean Sea.[iv] Especially at the beginning of the 21st century, when Israel started to activate previously given concessions that extended into disputed waters, which led to the discovery of significant amounts of mineral resources in the Levantine Basin, protests and heated exchanges of words between Israel and Lebanon were common occurrences. In their mutual condemnations of each other’s acts, both Israel and Lebanon stated that they would be willing to protect their rights by force, if necessary. Historically, Lebanon’s acts in relation to disputed waters have mainly consisted of opening a tender process for several blocks that extended into areas that Israel felt exclusively belonged to itself, and the granting of a license to a consortium of oil companies covering Qana field.[v] Also, in the wake of each other’s past mineral resources activities that were undertaken in disputed parts of the Eastern Mediterranean Sea, both Lebanon and Israel regularly wrote to the UN Secretary-General to contest the lawfulness of the unilateral acts of the other State.[vi]
As a consequence of Israel authorising the floating gas production platform to move into the Karish field, with a view to commencing gas extraction in the near future, tension arose between Israel and Lebanon. At the core of the maritime boundary dispute is that pending the delimitation of the maritime area where their EEZ or continental shelf claims overlap, there are conflicting sovereign rights of these neighbouring coastal States in relation to the same maritime area, and thus also over any of the mineral resources that are contained therein.[vii] Within the 1982 Law of the Sea Convention (LOSC),[viii] the key provision for determining the lawfulness of authorising an act that is under the jurisdiction of the coastal State is paragraph 3 of Articles 74 and 83 of the LOSC. This paragraph imposes two different types of obligations on neighbouring coastal States pending EEZ or continental shelf delimitation: first, to seek provisional arrangements, which, if successful, allows the States concerned to shelve the delimitation issue; and, second, States must exercise a measure of restraint, in that acts having a jeopardising or hampering effect have to be abstained from.[ix] International courts and tribunals have only more rarely addressed the extent to which neighbouring coastal States can exercise their rights within an area of overlapping EEZ or continental shelf claims in the light of the obligation to not jeopardise or hamper. However that may be, the Tribunal in Guyana v. Suriname, in interpreting the obligation to not hamper or jeopardise under paragraph 3 of Articles 74 and 83 of the LOSC, considered obiter dictum that seismic work did not lead to a breach thereof.[x] In the same case, the Tribunal also addressed the status of exploration and exploitation drilling for mineral resources in a disputed area. It concluded that such drilling has an effect of jeopardising or hampering the final agreement, which made it unlawful for States to proceed therewith in the absence of delimitation or cooperation.[xi]
What are the obligations of a State that is not a party to the LOSC in a disputed EEZ or continental shelf area?
A difficulty concerning the applicability of paragraph 3 of Articles 74 and 83 of the LOSC in the maritime boundary dispute under consideration here is that whereas Lebanon has become a party to the LOSC, Israel has not. In this light, the issue of whether paragraph 3 of Articles 74 and 83 of the LOSC reflects customary international law takes on a particular urgency. It is difficult to answer the question around the customary status of this paragraph with certainty.[xii] Two particular difficulties are the existence of significant contrary State practice, and that States more rarely invoke paragraph 3 of Articles 74 and 83 of the LOSC in their condemnations of when a neighbouring coastal State unilaterally authorises an act that falls within coastal State authority.[xiii] If this paragraph 3 cannot be considered customary, this raises the issue of through the lens of what international law obligations Israel’s activities in a maritime area which is claimed by Lebanon as well, have to be assessed instead.
The assumed inapplicability of paragraph 3 of Articles 74 and 83 of the LOSC, for the sake of argument, does not mean that there is an absence of relevant law. Rather the contrary: there are various general rules of international law that are on States irrespective of whether they are party to the LOSC, which come in two forms: customary international law and general principles of international law.[xiv] Amongst these are the following obligations: first, States must settle their disputes peacefully, which excludes settling them through force; second, States have to show due regard for each other’s rights; and third, States have to act in good faith; and they must not abuse their rights.[xv] Other more specific obligations can be derived from these general rules. Particularly relevant in this regard are two specific obligations: to not threaten irreparable prejudice to each other’s rights and that when a dispute arises, the States involved must refrain from taking acts that lead to an aggravation or extension thereof.[xvi] A common denominator of these obligations is that States have to exercise restraint, which similarly extends to neighbouring coastal States that are faced with maritime boundary disputes, and is hence applicable to the situation between Israel and Lebanon. The main difficulty that arises is determining the extent to which it is required that neighbouring coastal States exercise such restraint. A further difficulty is that the exact measure of restraint that has to be exercised is entwined with the context of a maritime boundary dispute.[xvii] To home in on the obligation of a State to not cause irreparable prejudice to rights, which was inter alia addressed by the ICJ in the Aegean Sea Continental Shelf (Interim Measures) case. It considered whether the unilateral seismic work undertaken by Turkey within a disputed continental shelf area required that interim measures of protection should be indicated.[xviii] The ICJ answered this question in the negative, the key consideration being that the infringement caused to Greece’s rights over the disputed continental shelf area could be repaired after delimitation.[xix] More invasive activities, including exploratory drilling, placing installations and mineral resource exploitation, were deemed by the ICJ to detrimentally affect the other’s State rights to a degree that irreparability would ensue. This would have been sufficient reason for the ICJ to institute interim measures of protection. Although this finding was made in an interim measures procedure, its relevance is not isolated to this context. For example, when looking at the relevant case law, it can be observed that to not threaten irreparable prejudice to rights has been set as the main threshold by international courts and tribunals, which needs to be exceeded in order to assume the unlawfulness of a unilateral act falling under the jurisdiction of the coastal State within a disputed maritime area.[xx]
Is there a silver lining to the clash between Israel and Lebanon resulting from the floating gas production platform moving into the Karish field?
The current state of international law is that sending a floating gas production platform, with the aim of beginning unilateral gas extraction within a disputed EEZ or continental shelf area, is difficult to square with the international obligations a coastal State has in relation to such an area, rendering Israel’s unilateral act likely contrary to current international law. Somewhat paradoxically, in the situation between Israel and Lebanon, arguably, the silver lining to the undertaking of this unilateral act by Israel, despite that it led to flaring tensions, is that it has blown new life into the indirect negotiations on where the maritime boundary lies between the two States, which if successful would greatly benefit both States, certainly in economic terms. However, as the history of the maritime boundary dispute between Israel and Lebanon illustrates, there are more factors to contend with than merely economic ones, and which may well ultimately continue to stand in the way of Israel and Lebanon reaching a final boundary agreement; this importantly includes the political landscape.
[i] Y van Logchem, The Rights and Obligations of States in Disputed Maritime Areas (Cambridge University Press, 2021), pp. 249-276; NA Ioannides, Maritime Claims and Boundary Delimitation: Tension and Trends in the Eastern Mediterranean Sea (Routledge, 2021), pp. 51-53.
[v] Letter of the Permanent Mission of Israel to the United Nations addressed to the Secretary-General, UN Doc. MI-SG-12212017, 21 December 2017.
[vi] See e.g. Letter of the Permanent Mission of Israel to the United Nations addressed to the Secretary-General, UN Doc. MI-SG-02022017, 2 February 2017; Letter of the Permanent Mission of Lebanon to the United Nations addressed to the Secretary-General, UN Doc. 574/2017, 20 March 2017.
[vii] Y van Logchem, ‘The Rights and Obligations of States in Disputed Maritime Areas: What Lessons Can Be Learned from the Maritime Boundary Dispute between Ghana and Cote d’Ivoire?’ (2019) 52(1) Vanderbilt Journal of Transnational Law, p. 130; DH Anderson and Y van Logchem, ‘Rights and Obligations in Areas of Overlapping Maritime Claims’, in S Jayakumar et al. (eds.), The South China Sea Disputes and Law of the Sea (Edward Elgar, 2014), p. 198.
[viii] United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 (LOSC).
[ix] See e.g. Y van Logchem, ‘The Scope for Unilateralism in Disputed Maritime Areas’, in CH Schofield et al. (eds.), The Limits of Maritime Jurisdiction (Martinus Nijhoff, 2014), pp. 178-181.
[x]In the Matter of an Arbitration between Guyana and Suriname (Guyana v. Suriname) [2007] XXX RIAA 1, p. 132, para. 467.
[xviii]Aegean Sea Continental Shelf (Greece v. Turkey) (Interim Measures) [1976] ICJ Rep 3, Oral Pleadings, pp. 108, 119.
[xix]Aegean Sea Continental Shelf (Interim Measures), p. 10, para. 30.
[xx] See e.g. Report on the Obligations of States under Articles 74(3) and 83(3) of UNCLOS in respect of Undelimited Maritime Areas (British Institute of International and Comparative Law, 2016), pp. 37–38; Van Logchem, supra note 1, pp. 74, 78, 155.
One of the issues discussed during the International Relations and Defence Committee of the House of Lords’ inquiry into the 1982 Law of the Sea Convention (LOSC)[i] and whether, almost forty years after its conclusion, it remains ‘fit for purpose’, was the challenges the LOSC presents for the use of Maritime Autonomous Surface Ships (MASS) (the relevant sessions can be accessedhere). Building and expanding on the evidence that I gave as an expert witness on this issue, this short blog post ponders the following question: does the use of MASS – and the connected disappearance of a master, officers, and crew from on board a ship – constitute a paradigm shift for the current international legal framework that requires making significant changes thereto, or are MASS merely old wine in new wineskins that can be accommodated with relative ease?
In a general sense, there is a correlation between the level of autonomy MASS are imbued with and the extent of difficulties they present for the existing international legal rules. These rules pertaining to MASS do not exclusively flow from the LOSC, but also from a number of international shipping conventions, including the International Convention for the Safety of Life at Sea (SOLAS).[ii] Concerning those MASS where seafarers and the master remain on board, fewer challenges are presented by the current international legal framework. However, it is when MASS are controlled from an onshore remote-control centre, or that the operation of MASS is completely based on algorithms performed by a computer, that problems start to come to the fore from an international law of the sea perspective.
Some Issues Flowing from the International Legal Framework in its Current Form[iii]
Looking at the current debate in relation to MASS, it is widely recognised that some change must be made to the existing international legal framework in order to facilitate their operation at sea.[iv] In these debates, the main bone of contention is how extensive the overhaul of the existing international legal framework would need to be: is it more tinkering at the margins that is required, or is a more significant overhaul necessary? At the heart of this debate is the question whether this exercise can be confined to making the necessary amendments to the international shipping conventions that have been negotiated under the auspices of the International Maritime Organisation (IMO). For example, would amending those provisions contained in the IMO Conventions in existence today that presuppose an on-board presence – for example, Part 4 of Section A-VIII/2 of the International Convention on Standards of Training Certification and Watch 1978 (STCW Convention),[v] requiring watch to be kept by officers, both on the bridge and in the engine room – be enough? Or, rather, would updating IMO Conventions only resolve matters in part, because of the LOSC, which as exemplified by its context and the language of several of its provisions (e.g., Article 94 of the LOSC) operates on the assumption that a vessel has a master, officers and/or a crew on board?
As regards the LOSC, one issue is whether MASS can be brought within the scope of application of those parts dealing with international shipping. This has given rise to different views, which have ranged from that MASS do not fall under the scope of the LOSC, because of them not being ships/vessels,[vi] to that no difficulties would arise because they are ships/vessels.[vii] Other issues have arisen as well, including around Articles 92, 94, and 98 of the LOSC and the tension that is inevitably created because of these provisions referring to a master/officer/crew, and that flag States have certain obligations, which for their execution rely on an on board presence of persons as well. For example, Article 94(4)(b) of the LOSC prescribes that each flag State must ensure that its vessels have a (properly qualified) master and crew. Under this obligation, each flag State must not only make sure that its vessels have a (properly qualified) master on board, but officer(s) and (not ‘or’) crew as well.
Another issue is that MASS do raise difficulties for flag States in terms of them being able to effectively implement their flag State duties, as is, amongst others, envisaged pursuant to the genuine link requirement. In order for a State to grant its nationality to MASS, there has to be a genuine link pursuant to paragraph 1 of Article 91 of the LOSC. A genuine link is assumed to exist when a flag State has actual control over a ship.[viii] However, how can a flag State exercise control over a remote controller if they are, for example, not located in the territory of the flag State, but in a remote-control centre that is based in another State’s territory?[ix] The way offered out of this conundrum often is that the human controller onshore in a remote-control centre would have the role of the ‘master’. However, this argument is not without difficulties, one issue being that the LOSC speaks of a singular master. This will create difficulties if this requirement is transposed to one or more controllers that are located in an onshore remote-control facility, including in terms of labour standards.
Leaving this issue further aside, if it would be accepted that an onshore controller can be considered the ‘master’ for LOSC purposes, it seems that in order for the flag State to meet the threshold of it exercising its jurisdiction and control in an effective manner, more is required from the flag State in relation to MASS as compared to manned vessels flying its flag. Because flag States are responsible for MASS flying their flag and any legal issues arising, issues that might occur in the relation with the State on whose territory the onshore remote-control centre, and thus the controller, is based, will need to be regulated (this was discussed in one of the webinars organised by the National University of Singapore’s Centre for International Law (CIL) on MASS, see here). This includes that potential extradition arrangements between the States concerned would need to be in place in case something goes wrong.
The Way Forward
MASS challenge a preconceived understanding that a vessel carries a master and a crew on board. This was similarly the guiding thought on the mind of the drafters of the LOSC at the Third Law of the Sea Conference, which is exhibited by the LOSC’s content and language, creating difficulties for these provisions to be applied to MASS. Because of this, should the LOSC itself be reopened for renegotiation because of it being ‘unfit’ to address MASS specifically, as has occasionally been suggested?[x] The short answer is ‘no’. Sight must not be lost of that the LOSC is a framework convention, which recognises that for certain matters more specific law might be required. The road leading to the LOSC was long, only being agreed upon after close to two decades of negotiations between States. The final text that was produced is rather remarkable, especially against the background of various compromises having to be struck between various, at times, competing interests and views of States. Regarding MASS specifically, States are also unlikely to deem this topic sufficiently important to go through renegotiations of the LOSC, which may well amount to nothing. This is not an unlikely outcome considering that the 168 States being a party to the LOSC would have to be on the same page on how to deal with MASS. In this light, even if States would be willing to renegotiate the text of the LOSC for this purpose, there is no guarantee that it will lead to changes facilitating autonomous ship operations at sea.
But making changes to the existing international law to accommodate MASS can occur via different routes than amending the LOSC, which after entering into force in 1994 has not happened. These approaches are not new, having been used in the past in cases where it was felt that the LOSC could be improved upon to deal with specific subject matters. One such alternative approach, being similarly not without precedent, having been pursued in connection with straddling fish stocks and the Area, is to negotiate an Annex to the LOSC. The development of a de novo regime dealing with MASS provides a further option; a potential difficulty here is that it might be difficult to reach an agreement that is able to secure significant participation from the around 200 States existing today, which all have their own interests. It may also be that customary international law will come to bear out rules pertaining to MASS, although due to State practice being in its infancy, this option is less relevant at the moment.
As a further alternative, whereas amending the LOSC is notoriously difficult, and not desirable, this is less the case for the various IMO Conventions. In a general sense, a key role is played by the IMO in regard of the future regulation of MASS, as is also illustrated by Article 94(5) of the LOSC. Along these lines, more recently, the IMO, to be more specific its Maritime Safety Committee (MSC), completed a scoping exercise with regard to MASS (see here), focusing on the extent to which IMO Conventions related to the safety of navigation (e.g., SOLAS) need to be updated to ensure that MASS are able to comply with them. Other IMO bodies, including the Marine Environment Protection Committee, have not performed similar exercises for other relevant IMO Conventions yet; however, the Legal Committee has examined the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation in relation to the use of MASS.[xi] Of course, by following the IMO route any difficulties existing in these IMO Conventions pertaining to MASS specifically can be ironed out. Or, if deemed necessary, new instruments could be created. But there is a broader issue that may rear its head in this context, one which will only be signposted here: to what extent can the IMO remove all of the legal hurdles thrown up by the LOSC in relation to MASS? If the LOSC operates on the understanding that vessels must carry a master/officer(s)/crew on board, can the IMO introduce rules and standards which are at variance therewith, for example?
Some Concluding Thoughts on the Current State of Affairs
To return to the present and the issue of MASS and the international legal framework as it is: irrespective of the view held as to how extensively the international rules need to be updated to account for autonomous ship operations, MASS cannot comply with the existing international and generally accepted shipping rules and regulations as they currently stand. One corollary to this is that coastal States do have powers to act against MASS when they would be, for example, traversing through that coastal State’s territorial sea. Another effect is that, without the international legal framework providing provisions specifically tailored to MASS, or that its relevant provisions have not been updated to account for their modus operandi, flag States should think carefully about registering MASS. And particularly they should ask themselves the question whether they are in a position to adequately execute their flag State duties in relation to MASS. A more comprehensive set of international rules specifically tailored to MASS will surely take significant time to develop. Connected to this, it will be interesting to see whether the IMO, as it progresses with its work on MASS, will also consider the LOSC and the way in which it may impact its ability to comprehensively deal with MASS.
[i] United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC).
[ii] International Convention for the Safety of Life at Sea (adopted 1 November 1974, entered into force 25 May 1980) 1184 UNTS 2 (SOLAS).
[iii] For a more comprehensive analysis of this issue see Y. van Logchem, ‘International Law of the Sea and Autonomous Cargo ‘Vessels’, in A. Tettenborn and B. Soyer (eds.), Artificial Intelligence and Autonomous Shipping: Developing the International Legal Framework (Hart Publishing, 2021), pp. 25-62.
[iv] See e.g. N. Klein, D. Guilfoyle et al., ‘Maritime Autonomous Vehicles: New Frontiers in the Law of the Sea’ (2020) 69 International and Comparative Law Quarterly 719-734; A. Tettenborn and B. Soyer (eds.), Artificial Intelligence and Autonomous Shipping: Developing the International Legal Framework (Hart Publishing, 2021).
[v] International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (adopted 7 July 1978, entered into force 28 April 1984) UKTS 50 Cmnd 9266, with amendments in 1995, which entered into force on 1 February 1997 (STCW Convention 78/95).
[vi] See e.g. M. Schmitt and D. Goddard, ‘International Law and the Military Use of Unmanned Maritime Systems’ (2016) 98 International Review of the Red Cross 577.
[vii] See e.g. J. Kraska, ‘The Law of Unmanned Naval Systems in War and Peace’ (2010) 5 The Journal of Ocean Technology 64.
[viii] See e.g. M /V Saiga (No 2) (Saint Vincent and the Grenadines v. Guinea) (Judgment) ITLOS Reports 1999, 10, pp. 41-42, paras. 81– 83.
[ix] A. Chircop, ‘Maritime Autonomous Surface Ships in International Law: New Challenges for the Regulation of International Navigation and Shipping’, in M. Nordquist et. al (eds.), Cooperation and Engagement in the Asia-Pacific Region (Brill/Nijhoff, 2020), pp. 24-25.
[x] E. Van Hooydonk, ‘The Law of Unmanned Merchant Shipping – An Exploration’ (2014) 20 Journal of International Maritime Law 410.
[xi] United States of America, ‘Summary of Results of the LEG Regulatory Scoping Exercise for the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988’, IMO Doc. LEG 107/8/5 (9 January 2020).
Coastal State are entitled to claim a territorial sea, extending to a maximum of 12 nautical miles (nm) from the baselines of its land territories, be it from mainland territory or a high-tide feature. In the territorial sea, a coastal State has sovereignty, which extends to the air space above it and the seabed and subsoil beneath it.
Greece has not claimed full 12 nm territorial seas from all its mainland territory and islands. This used to be the case in both the Aegean Sea and the Ionian Sea, but Greece recently changed its position with regard to the latter, by making a decree in December 2020, whereby it extended its territorial sea in the Ionian Sea to 12 nm. In the decree, the Greek government also indicated that this approach may be extended to other areas, including the Aegean Sea.
Subsequent news reports have predicted that Greece taking an identical step concerning the Aegean Sea is in the cards. However, can the fact that Greece has changed its position with regard to the Ionian Sea be seen as a sign that a similar expansion of the Greek territorial sea to 12 nm in the Aegean Sea, is looming on the horizon? Answering this question is difficult, but the short answer is ‘not necessarily’. Especially considering the fact that, in the Aegean Sea, the issue of the breadth of the territorial sea has been a highly controversial matter.
The current state of play in the Aegean Sea, as far as the breadth of the territorial sea is concerned, is that Greece still follows the Turkish position to only claim a 6 nm territorial sea from any of its land territories. Greece has, however, never excluded the possibility of it claiming a territorial sea in the Aegean Sea in the future, which extends to a maximum of 12 nm. In fact, Greece has asserted on various occasions that international law entitles Greece to extend its territorial sea to this distance, and that it may take the necessary steps to make this a reality. Viewed in this light, the fact that Greece in its recent decree, whereby it extended the breath of its territorial sea in the Ionian Sea to 12 nm, also indicated to reserve the right to take a similar approach as regards the Aegean sea, is not a novelty, but rather a continuation of a previously and consistently held position.
However, if Greece were to proceed to claim a full 12 nm territorial sea in the Aegean Sea, such a unilateral move will undoubtedly provoke Turkey. Historically, whenever Greece has made any suggestions that it is entitled to a territorial sea of 12 nm in the Aegean Sea, this has been automatically followed by condemnations form Turkey, indicating that it would take whatever steps necessary to prevent Greece from making such an extension. In fact, Turkey has regarded Greece extending its territorial sea within the Aegean Sea beyond 6 nm as a casus belli. Turkey also takes the position that to claim full territorial sea entitlements within the geographical context of the Aegean Sea, which is rather congested, amounts to an abuse of rights by Greece, as it would lead to Turkey being inequitably affected by such an extension.
One aspect that may explain Turkey’s opposition to such an extension is that this would place approximately two third of the Aegean Sea under the sovereignty of Greece. There is also the issue of that Turkey never acceded to the 1982 Law of the Sea Convention, whereas Greece ratified the Convention in June 1995. This means that Turkey may not be directly bound by its Article 3, which deals with the breadth of the territorial sea, unless the provision therein reflects a customary rule. In this vein, the International Court of Justice in Territorial and Maritime Dispute (Nicaragua v. Columbia) made it clear that Article 3, and the breath of the territorial sea of 12 nm set out therein, have indeed evolved into a customary rule (para. 177, p. 690). There is a caveat, however: if Turkey would be able to demonstrate consistently objecting to this being a customary rule, at the time that it was in the process of obtaining such status, Turkey would not be bound by it once the rule obtains customary status. A potential difficulty in this regard is that Turkey itself claims 12 nm territorial seas in both the Black Sea and the Mediterranean Sea.
Whether Greece will claim a full 12 nm territorial sea in the Aegean Sea as well remains to be seen. However, due to the fundamentally different dynamics that are at play in the Aegean Sea, including its more complex geography, volatility, and the long history of conflict that exists between Greece and Turkey in relation to this area, an expansion of the Greek territorial sea to 12 nm there is perhaps not to be expected soon. Although Greece may have international law on its side on this point, this would increase and lead to further conflict with Turkey.
China and Vietnam have a long history of incidents, because of them acting in relation to disputed parts of the South China Sea. A new chapter to this history was added at the beginning of May 2020, when Vietnam learned that China provided 80 maritime features, belonging to the disputed Spratly and Paracel islands in the South China Sea, with Chinese names. Three decades earlier, in 1983, China embarked on a similar naming exercise of features in the South China Sea.
Looking at the history of incidents between China and Vietnam, it was not the first time an act of naming by one of the States created conflict between the two States. An incident also occurred after Vietnam proclaimed that the ‘South China Sea’ was henceforth to be named as the ‘West Philippine Sea’ in 2012, to which China protested heavily.
But what is the legal value of naming maritime features in the Spratly and Paracel islands by China, from an international law perspective?
Faced with the recent naming, Vietnam protested. Reportedly, it even contemplated to take the issue to international adjudication in order to be settled. Vietnam’s act of protesting is significant from the view of international law, however. This is because, by undertaking a unilateral act, a State, in this case China, may have sought to assert a right, or might have sought to create a new right. A lack of a response to a unilateral act might be construed as that a State has acquiesced in the other State’s claim. In a nutshell, acquiescence is inferred from silence or inaction in a situation that a State should have responded. Protesting against the other State’s unilateral conduct may therefore sometimes be necessary for a State to protect its claims. However, the need for producing a response is intertwined with the circumstances at hand, and not all acts actually demand a response.
International law does not address the issue of naming explicitly (see more generally on this issue E. Franckx, M. Benatar (et al.), ‘The Naming of Maritime Features Viewed from an International Law Perspective’, China Oceans Law Review (2010), pp. 1-40), raising the question of how to deal with this issue. A possible answer may lie in the fact that a State has sovereignty over its territory. The latter encompasses a State’s mainland territory, internal waters, territorial sea, archipelagic waters and high-tide features, as well as the air space above them. An implication of the sovereignty that a State has over its territory, coming down to that it enjoys full powers, would be that this also extends to the naming of maritime features that are located within its territory. By that same token, the name attributed by a State to a part of its territory would be opposable to other States. Of key importance in this regard is that this opposability would extend only to parts of what can be considered a State’s territory. But all this is premised, however, on that there is one State that has a clear title over a territory. This is problematic when applied to disputed parts of the South China Sea, to which multiple States lay claim.
The precise motive underlying the naming exercise by China is difficult to pinpoint, and various motivations have been suggested for what led China to embark thereon. One article has argued that the naming was a reaction to Vietnam being particularly active in relation to the South China Sea, considering Vietnam to have taken advantage of China’s attention having been on dealing with the COVID-19 outbreak. Allusions were also made that, through this act, China sought to reassert its ‘sovereignty over the South China Sea’. This seems to imply that at least part of the reason lying behind the naming of the maritime features in the disputed Spratly and Paracel islands, is that China perceives it as way to strengthen its sovereignty claim over them. A difficulty is, however, that some of these maritime features are submerged. The consequence of this is that they are thus not territory. At the same time, only territory has entitlements to maritime zones under the Law of the Sea.
Maritime features that are below water at high tide are called low-tide elevations (Article 13 of the United Nations Convention on the Law of the Sea (LOSC)). A further consequence from that low-tide elevations are not territory, besides that they lack the ability to generate maritime zones of their own, is that there cannot be a sovereignty dispute between States over a low-tide elevation. This does not mean that they are not without relevance, however: if a low-tide elevation is located within 12 nautical miles (nm) from the baselines of a territory, it belongs to the State that has sovereignty over this nearby territory. Also, a low-tide elevation can be located within a disputed maritime area: that is, if the low-tide elevation is located within 12 nm from a disputed territory – for example, a disputed island.
A few of the recently named maritime features are high-tide features. When high-tide features are permanently above water and naturally formed, they are considered to be territory. This means that high-tide features may also be subjected to competing sovereignty claims by States. Under the LOSC, islands are divided into two categories: rocks under Article 121(3), and fully-entitled islands, as defined by Article 121(2). The main difference lies in the entitlements that they respectively have to maritime zones. Whereas rocks are only entitled to a territorial sea, not going beyond the maximum limit of 12 nm, and a contiguous zone of an additional 12 nm, fully-entitled islands are entitled to a territorial sea, a contiguous zone, an exclusive economic zone, and a continental shelf; and, if the requirements under Article 76 of the LOSC are met, also an extended continental shelf.
But what legal weight does the act of naming by a State carry in establishing ownership of a high-tide feature, or to indicate evidence of ownership? Put differently, does the act of naming lead to a State’s sovereignty claim being strengthened as a result?
Under international law, States that lay claim to the same land territory, which includes high-tide features, may seek to fortify their sovereignty claim through peaceful means. However, a State’s claim will not be further fortified once the critical date has passed. Although it may be difficult to pin down its exact moment in time, the critical date refers to the date when the sovereignty dispute between the States concerned has crystallised.
As to the question which State has sovereignty over a land territory, in the absence of a relevant treaty, the main issue is which State has a stronger title. International courts and tribunals, if they were to deal with a dispute of this type, will usually first identify the acts of peaceful administration that have been taken by States claiming the same piece of territory, to then weigh and compare these acts, to decide which of the States concerned has a stronger title over the land territory.
International case law in which the aspect of the naming of maritime features played a more substantial role is limited. However, the case of Minquiers and Ecrehos, which was dealt with by the International Court of Justice (ICJ) in 1953, does shine some light on the relevance of naming. In this case, the fact that the United Kingdom (UK) did not name some of the islands that were in dispute, was used by France to argue that they were not within the control of the UK (Counter Memorial of France, pp. 382-383). Particularly relevant in this regard is that the ICJ noted that it “cannot draw any conclusion from the naming of the islands since this question must ultimately depend upon evidence which relates directly to the possession of these groups” (Minquiers and Ecrehos, p. 55). Here, the aspect of naming did not play a significant role for the ICJ in determining which of the States concerned had a stronger title over the islands, because it did not evidence possession of the islands.
In light of the above, it is essential to make a distinction between low-tide elevations and high-tide features, as a sovereignty dispute can only arise concerning the latter. Then, a State may seek fortify its sovereignty claim peacefully. Whether a claim will be strengthened is entwined with whether the critical date has passed, however. But in the context of establishing sovereignty over what can be considered high-tide features, their naming may be an act that actually carries little weight for an international court or tribunal, if it would be asked to deal with the matter.
Against the backdrop of China recently renaming several disputed insular features in the South China Sea, which led to protests from Vietnam, the suggestion has been raised that Vietnam might to turn to “the world arbitration court” to have the matter adjudicated. Although a court by that name does not exist, it may be inferred that reference is made here to an international court or tribunal. A myth rears its head in the same news article, one that has been perpetuated particularly after the Arbitral Tribunal established pursuant to Annex VII of the 1982 Law of the Sea Convention (LOSC) rendered its award in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China) in 2013. The myth being that “Arbitral rulings aren’t binding”. To reinforce this seriously flawed argument, the news article does indeed invoke the South China Arbitration.
After the Arbitral Tribunal delivered its decision on the merits in South China Sea Arbitration, some have used it to argue that this arbitral decision, and arbitral decisions in general, are not binding. Having declared under Article 298(1)(a) of the LOSC its non-acceptance of arbitration with respect to maritime boundary disputes or those involving historic titles, China argued that the Arbitral Tribunal could not consider the case on the merits. It also abstained from participating in the proceedings. After the Tribunal assumed that it had jurisdiction over the dispute, and went on to hand down its final decision on the merits, China reinforced its earlier expressed intentions that it would not follow the final outcome of the award.
However, from the fact that China did not recognise the validity of the Tribunal’s decision, the inference cannot be drawn that it is therefore not legally binding. To the contrary, Article 296(1) of the LOSC leaves no doubt in this regard: any decision rendered by a court or tribunal assuming jurisdiction over the dispute “shall be final and shall be complied with by all the parties to the dispute”. This is reinforced in Article 11 of Annex VII of the LOSC: an “award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute”. In this light, rather than perpetuating this myth that decisions of international tribunals are not binding, the opposite, that is abandoning this rhetoric, is far more appropriate.
In the early hours of 4 July 2019, a commercial oil tanker (Grace 1), flying the flag of Panama, was boarded and seized while passing through the Strait of Gibraltar by UK marines and the Gibraltar police. Connecting the Mediterranean Sea to the North Atlantic Ocean, the Strait of Gibraltar is one of the busiest shipping routes in the world.
The reason lying behind the seizure of the oil tanker by the UK was that the Grace 1 was suspected of transporting crude oil, which was loaded onto the vessel in an Iranian port, to Syria, in violation of EU sanctions. What might have drawn attention to the vessel, was its circuitous route. Starting at an Iranian port, the vessel first set sail south, to then follow the coastline around the entire African continent up until entering the Strait of Gibraltar, where it was intercepted. Its ultimate destination remains a subject of dispute, however.
The arrest of the vessel led to an outcry in Iran, protesting the lawfulness of the UK’s seizure on several bases. One contention that was raised by Iran, and which will be at the heart of this short blog post, is its condemnation that the UK’s seizure was an act of piracy.
But is there any validity to Iran’s piracy claim from the view of international law? Or, rather, must it be brushed off as rhetoric? The rhetorical force that the label of piracy carries is invariably strong, readily conjuring up vivid images of individuals pillaging and threatening security at sea.
Before delving into the question whether, away from its rhetorical force, Iran’s claim has legal merit, there is a preliminary issue that needs to be addressed: how was it that Iran took centre stage in condemning the UK’s action against the oil tanker? Surely, not in the role of flag State. Ownership, or whatever links a cargo may have to a particular State, is irrelevant from a legal point of view in determining the nationality of a vessel. Interestingly enough, Panama indicatedthat it had removed the Grace 1 from its registry at the end of May 2019, because of its link to terrorism financing. This does raise the issue – that will not be addressed here – whom the flag State of the Grace 1 is. Iran’s involvement seems to stem rather from that it perceives the seizure by the UK of the oil tanker, carrying Iranian oil, as a provocation, one that has to be read against the background of flaring tensions between the US and Iran that arose over the shooting down of a US drone, and the latter’s pulling out from the earlier agreed nuclear agreement.
Criteria that need to be satisfied for an act to be piracy are given in Article 101 of the 1982 Law of the Sea Convention (LOSC). This provision, reflecting customary international law, establishes what the crime of piracy consists of:
‘any illegal acts of violence or detention, committed for private ends by the crew or the passengers of a private ship or aircraft and directed … on the high seas (or in a place beyond the jurisdiction of any State) against another ship or aircraft, or against persons or property on board such ship or aircraft.’
From this provision, several requirements can be distilled. One being that a violent act must have been committed on the ‘high seas’ or ‘in a place beyond the jurisdiction of any State’. Were a violent act to be committed within the territorial sea, it cannot be included in the definition of piracy under Article 101 LOSC. Such an act would be considered armed robbery at sea.
But does the Strait of Gibraltar meet the description of ‘high seas’ or ‘a place beyond the jurisdiction of any State’? To start with some background, the entire Strait of Gibraltar is composed of waters that are either part of coastal States’ their territorial seas or exclusive economic zones, thus being under their sovereignty or jurisdiction of the relevant coastal States respectively. Further complicating matters is that some of these waters are disputed, because of the ongoing sovereignty dispute between the UK and Spain over Gibraltar. However, even if disputed waters are underpinned by a sovereignty dispute, they cannot be considered high seas.
Nowadays, most scholars adhere to the view that the Gibraltar Strait can be considered a strait that falls within the scope of Part III LOSC. The implication of which would be there being a right of transit passage for vessels. However, Article 34 LOSC makes it clear that the coastal State’s sovereignty and jurisdiction within a strait is not affected. In this light, if a vessel passes through the territorial sea part of a strait, criminal jurisdiction pursuant to Article 27 LOSC might arguably still exist for the coastal State. So, to know the exact location of where the Grace 1 was boarded and arrested is critical in determining whether the geographical scope requirement laid down in Article 101 LOSC has been met.
As its first sentence makes clear, an illegal act “of violence or detention” has to be committed for ‘private ends’. Looking at the UK’s seizure of the oil tanker, a private end component is fundamentally lacking. By its very nature, the UK’s action was public; it occurred with the authorisation of a State. And there is a further difficulty for Iran’s piracy claim to succeed. For an act to fall within the scope of Article 101 LOSC, it must have been committed by the crew or passengers of a private ship against another ship.
And was the act at all violent? What only could be construed as a ‘violent’ act or ‘detention’ would be the boarding and arresting of the Grace 1. Rather, the UK response concerned law enforcement, which does not constitute a violent act in and of itself; that is, as long as it occurs in accordance with international law. The dividing line between what constitutes law enforcement and a threat of the use of force, may not always be easily drawn, as during lawful enforcement a measure of force may be involved, but this is permissible if it is necessary, unavoidable and proportional.
Given that the requirements for an act to be considered piracy under Article 101 LOSC are cumulative, Iran’s claim cannot be upheld, seemingly failing to meet a plethora of requirements. But at the same time, it is questionable whether Iran’s use of the word piracy, or a variation thereon, to condemn the seizure is meant to convey its legal position on the matter. It seemingly fits into a broader development, where it has become en vogue to refer to all violent acts that occur at sea as piracy, no matter whether it satisfies the legal definition thereof under international law (see more generally on this phenomenon J. Schechinger, ‘An incident of “piracy” off the coast of Suriname? The definition of piracy and the use (and misuse) of international law terminology’, MarSafeLaw Journal (forthcoming)).
Before looking at this recent decision in more in depth, the history of the dispute will be laid out. Starting on 18 September 2013, when Greenpeace activists tried to enter the Russian offshore oil platform (the Prirazlomnaya) in order to protest against attempts to begin exploiting oil and gas resources in the Arctic. One day later, the Russian Federation boarded and arrested the Arctic Sunrise and detained its crew. Subsequently, the vessel was brought to the port of Murmansk and the crew was charged with having committed a range of administrative and criminal offences, including acts of terrorism and hooliganism.
The Netherlands initiates Proceedings before an Arbitral Tribunal
Some two weeks later, on 4 October 2013, The Netherlands, being the flag State of the Arctic Sunrise, started proceedings before an Arbitral Tribunal that was established pursuant to Annex VII of the 1982 Law of the Sea Convention. The Russian Federation refused to participate in the Arbitral proceedings that were initiated by the Netherlands. The position of the Russian Federation was, that this type of dispute was beyond the jurisdiction of an international court or tribunal, due to a declaration it had made at the time of becoming a party to the 1982 Law of the Sea Convention. However, the proceedings went ahead, despite the non-participation of the Russian Federation.
The Netherlands requests Interim Measures from the ITLOS
On 21 October 2013, the Netherlands requested interim measures from the International Tribunal for the Law of the Sea (ITLOS). According to the Netherlands, the Russian Federation had to immediately release the Arctic Sunrise and its crew, after the posting of a bond, upon which they would be free to leave Russian territory as well as any maritime areas under its jurisdiction. ITLOS gave an Order on interim measures on 22 November 2013. Initially, the Russian Federation did not comply with the Order of the ITLOS – eventually, however, the vessel and crew were released in late November 2013. The Russian release of vessel and crew was based on its national laws, the Order of the ITLOS played no decisive role in this, according to the Russian Federation – as it happened, the effect of the national laws and regulations on which the Russian Federation relied, coincided with what was set out by the ITLOS in its Order containing interim measures.
Arbitral Award on the Merits
One of the main substantive issues on which the Arbitral Tribunal was asked to rule during the merits phase, was the (un)lawfulness of the response of the Russian Federation to the presence of the Arctic Sunrise and its crew. The gist of the argument of the Netherlands was that, as the flag State, it had sole jurisdiction over the ship and the crew on-board during the entirety of this incident (Article 58 of the 1982 Law of the Sea Convention). On 14 August 2015, the Tribunal released its Award on the merits. The Arbitral Tribunal found that the Netherlands had exclusive jurisdiction over the Arctic Sunrise whilst it was operating in the exclusive economic zone of the Russian Federation. This means that the Russian Federation could have only lawfully initiated steps against the vessel that was flagged to the Netherlands and its crew with the latter’s consent. After coming to this conclusion, the Tribunal went on to state that the Netherlands had to be compensated.
Arbitral Award on Compensation
In its recent Award on compensation, the Tribunal set the total amount of compensation owed by the Russian Federation to the Netherlands at a little under 5,4 million euros. This sum was arrived at by adding up the damage that was done to the Arctic Sunrise (EUR 1,695,126.18); compensation related to the unlawful arrest, prosecution and detention of its crew (EUR 600,000); a variety of other damages incurred by the Netherlands, including the failure to release the vessel and crew in a timely manner (EUR 2,461,935.43); costs made by the Netherlands in issuing a bank guarantee (EUR 13,500); and lastly, the Netherlands had to be reimbursed for paying the full amount of deposits required by the Tribunal (EUR 625,000) – meaning that the Russian Federation had to pay the half it owed of the costs that were needed for the proceedings to be initiated. Although the Russian Federation is required under international law to abide by the ruling on compensation, whether it will actually do so remains to be seen.
On 12 July 2016, the Arbitral Tribunal, established pursuant to Annex VII of the 1982 Law of the Sea Convention (LOSC or LOS Convention), delivered its award in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China). In 2013, the proceedings were unilaterally initiated by the Philippines concerning the relevant disputes in the South China Sea between the Philippines and China. Having declared under Article 298(1)(a) LOSC its non-acceptance of arbitration with respect to maritime boundary disputes or those involving historic titles, China has refused to participate in the proceedings. Irrespective of the refusal of China to participate – which, in hindsight, seems to have not worked to its advantage – the Tribunal found in 2015 that it had jurisdiction to proceed to deal with the matter on the merits.
A critical aspect for the Tribunal to assess was whether the declaration made by China pursuant to Article 298(1)(a)(i) LOSC would prohibit it from considering the case on the merits, because the submissions of the Philippines were concerned with categories of disputes that China has excluded from the jurisdictional reach of an international court or tribunal: those concerning a historic title or maritime delimitation. The Tribunal concluded that the matters brought to its attention did not bear on the issue of delimitation (para. 214), since disputes over whether certain maritime features have entitlements to maritime zones are separate from the issue of delimitation, which is essentially concerned with dividing overlapping entitlements that have been established. On the matter of a historic title, the Tribunal went to analyse the meaning of ‘historic title’. In this context, it was deemed critical that reference was made to ‘title’, which means in legal jargon the complete ownership over something. The word ‘sovereignty’ only surfaces in the LOSC in connection with the territorial sea, where the coastal State has sovereignty up to a point that is 12 nautical miles (nm) removed from its coast. Given the Chinese reliance on that it has certain historic rights over the South China Sea, its claim was interpreted as not being concerned with the claiming of a historic title (paras. 225-226, 229).
There are a number of critical substantial findings of the Tribunal to be found in the award, some aspects which may have more wide-reaching implications. The following four findings will be briefly discussed in this blog post:
One of the main findings of the Tribunal is that it dismissed the validity under international law of the Chinese ‘nine-dash line’. The specifics of the nine-dash line have never been really elaborated on by China, and have given risen to different interpretations (see e.g. here, here, here and here). One interpretation is that China has claimed to have some sort of a ‘special’ historic right over the relevant areas of the South China Sea that are within the nine-dash line, by virtue of a long and consistent practice of where some measure of authority was continuously exercised. A second interpretation is that the maritime features located within the nine-dash line are all under the sovereignty of China and, at least some of them, could project maritime zones up to at least the 200 nm limit. According to the Tribunal, the extent of maritime entitlements of States in the South China Sea are regulated by the LOSC, and the nine-dash claim of China, as far as it goes beyond the limits imposed by the LOSC, is superseded by the LOSC. Although the Tribunal found the alleged Chinese historic rights to be fully incompatible with the LOS Convention, basically, the rights China claimed to have are in fact assigned to other coastal States in the area under the concept of the Exclusive Economic Zone (EEZ). However, the door was left open for that under certain circumstances – and following, amongst others, the judgment in the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) – a historic title and right might be brought under the regime set out in the LOS Convention (para. 238).
Another critical finding was that none of the maritime features China claims to have sovereignty over, including those that are part of the hotly contested Spratly Islands, have entitlements to an EEZ or continental shelf. Therefore, according to the Tribunal, there was no overlap of the entitlements of China and the Philippines to the same maritime space, given that China has no territory from which it is entitled to claim maritime zones up to at least 200 nm, which would have otherwise created an overlap with the entitlements and claims of the Philippines. As regards the hotly contested Spratly Islands, the reasoning of the Tribunal suggests that these have at best an entitlement to a territorial sea and a contiguous zone. According to the Tribunal, none of the disputed maritime features that are part of the Spratly Islands meet, without human assistance, the conditions set out under Article 121(3) of the LOSC, that is that they can sustain human habitation or economic life of their own. The threshold concerning when isolated maritime features would be entitled to an EEZ and continental shelf seems to have been set high by the Tribunal. Its approach as to how to define a ‘rock’ within the meaning of Article 121(3) of the LOSC may have more widespread consequences, and may raise some concerns on the part of other States that are faced with similar issues.
Pursuant to the LOS Convention, different types of maritime features have different entitlements to generate maritime zones, ranging from those that can claim zones up to the 200 nm mark, or even beyond, to those that due to their characteristics have no entitlements to maritime zones at all. Falling into this latter group are so called low-tide elevations. These can, assuming they are located in close proximity to the coasts of States, be relevant in the measuring of the baseline, but have no entitlements to maritime zones of their own. In contrast, islands are principally treated similarly to land and have entitlements to a territorial sea, EEZ and continental shelf. Rocks, on the other hand, may only be accorded part of the treatment that islands receive: that is, whenever they fall within the paragraph 3 exception of Article 121 LOSC, that they are unable to sustain human habitation or have an economic life of their own, the most they can generate in terms of maritime zones is a territorial sea, and a contiguous zone of an additional 12 nm. For example, Scarborough Shoal, which has been the venue for various incidents between China and the Philippines, was classified by the Tribunal as a rock that is unable to meet the two conditions set out in Article 121(3) of the LOS Convention. Further, the Tribunal found that Mischief Reef is a low-tide elevation, which is thus unable to generate any maritime zones of its own. As a result of this classification, and given that low-tide elevations cannot be appropriated by States, there could be no sovereignty dispute over Mischief Reef, and more generally between China and the Philippines. The Tribunal went on to state that Mischief Reef is firmly placed in what can be regarded to be the EEZ of the Philippines. Therefore, amongst others, fishing activities that have been performed by Chinese fishermen at Mischief Reef infringed on the sovereign rights the Philippines has over the EEZ, pursuant to the LOS Convention. This same reef was also used by China to construct a large artificial island on top, whilst proceedings before the Tribunal were already set in motion. Given that this happened without the consent of the Philippines, which would have been required because Mischief Reef is a low-tide elevation located within its EEZ and continental shelf, China infringed on the sovereign rights that the Philippines has in this regard.
More generally, and in addition to the actions undertaken concerning Mischief Reef, the land reclamation works and construction of artificial islands that China conducted on a broader scale, and in relation to a number of other maritime features (e.g. Cuarteron Reef, Fiery Cross Reef) in the South China Sea, were heavily condemned by the Tribunal. The Tribunal found that China aggravated the existing dispute between China and the Philippines through the reclamation works it conducted, whilst the dispute was brought to the consideration of the Tribunal. It also found that the Chinese actions aggravated the existing dispute between the parties over the Spratly Islands – however, it needs to be noted that this dispute figures, besides China and the Philippines, four additional players (i.e. Taiwan, Malaysia, Vietnam and Brunei). The Chinese reclamation works and building of artificial islands were also condemned for not being in line with the obligations that States have under the LOSC, particularly under Article 192 and 194(5) LOSC, in relation to the protection of the marine environment.
Directly after the award on the merits was handed down, China sought to brush over the validity of the award as being farcical in the extreme. In a further – undeniably weak – attempt to challenge the value of the award, a government sanctioned press release resorted to attacking a number of the individual members of the Arbitral Tribunal for exhibiting a perceived lack of consistency between the decision that the Tribunal arrived at and their earlier pronounced views in literature. In support of its position that the Arbitral Tribunal wrongly found to have jurisdiction over the dispute, in its view essentially by misconstruing what lies at the core of the dispute, China in this same press release cited heavily from an article previously published by Talmon, who expressed his misgivings over the Tribunal assuming jurisdiction over the dispute.
Given that the award was dismissed with a significant measure of exaggeration by China, and that it already indicated earlier, and subsequently reinforced its intentions to not follow the final outcome of the award, the question remains as to what effect the award might have on the (sometimes volatile) situation in the South China Sea. The position that China finds itself in is not an easy one. However, contrary to the ad hominin arguments aimed against individual members of the Tribunal, and the perceived biased composition it was argued to have according to the Chinese side, there is no doubt that the Tribunal was impartial and constructed in conformity with the LOS Convention – which not unimportantly, China is a party to. Although the award of the Tribunal is not enforceable, it carries substantial (diplomatic) weight. The fact that its legal position concerning the South China Sea was overwhelming rejected by the Tribunal will necessitate a rethinking on the part of China of its legal arguments, if it wants to pursue an amicable solution through diplomacy. Entering into negotiations with other claimant States bordering the South China Sea, on the basis of a position that has been essentially rejected by an independent Tribunal that has been constructed in accordance with the LOSC, is unlikely to bear much fruit.
