Naming Disputed Maritime Features in the South China Sea – “What’s in a Name?”

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.

Abandoning the myth that decisions rendered by international arbitral tribunals are not binding

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.

First Intergovernmental Standard on AI & Cyber Risk Management

In giving evidence to the Public Accounts Committee (PAC) on Cybersecurity in the UK Sir Mark Sedwill (Cabinet Secretary, Head of the UK Civil Service and UK National Security Advisor) asserted, “the law of the sea 200 years ago is not a bad parallel” for the “big international question” of cyberspace governance today (see Public Accounts Committee Oral evidence: Cyber Security in the UK, HC 1745 [1st April 2019] Q93).

In making this assertion Sir Mark may have had in mind articles such as Dr. Florian Egloff’s Cybersecurity and the Age of Privateering: A Historical Analogy in which the author asserted: 1. “Cyber actors are comparable to the actors of maritime warfare in the sixteenth and seventeenth centuries. 2. The militarisation of cyberspace resembles the situation in the sixteenth century, when states transitioned from a reliance on privateers to dependence on professional navies. 3. As with privateering, the use of non-state actors by states in cyberspace has produced unintended harmful consequences; the emergence of a regime against privateering provides potentially fruitful lessons for international cooperation and the management of these consequences.”

In our IP Wales Guide on Cyber Defence we note: “Since 2004, a UN Group of Governmental Experts (UN GEE) has sought to expedite international norms and regulations to create confidence and security-building measures between member states in cyberspace. In a first major breakthrough, the GGE in 2013 agreed that international law and the UN Charter is applicable to state activity in cyberspace. Two years later, a consensus report outlined four voluntary peace time norms for state conduct in cyberspace: states should not interfere with each other’s critical infrastructure, should not target each other’s emergency services, should assist other states in the forensics of cyberattacks, and states are responsible for operations originating from within their territory.

The latest 2016-17 round of deliberations ended in the stalling of the UN GGE process as its members could not agree on draft paragraph 34, which details how exactly certain international law applies to a states’ use of information and communications technology. While the U.S.A. pushed for detailing international humanitarian law, the right of self-defence, and the law of state responsibility (including the countermeasures applying to cyber operations), other participants, like China and Russia, contended it was premature.”

Indeed China has gone further and condemned the U.S.A. for trying to apply double standards to the issue, in light of public disclosures of spying by their own National Security Agency (NSA).

Sir Mark went on to reveal that because cyberspace governance is being only partly addressed through the UN, “we are looking at coalitions of the willing, such as the OECD and some other countries that have similar systems to ours, to try to approach this.”

Evidence of this strategy in operation can be seen at Ministerial Council Meeting of the Organisation for Economic Co-ordination and Development (OECD) on the 22nd May 2019 when 42 countries adopted five value-based principles on artificial intelligence (AI), including AI systems “must function in a robust, secure and safe way throughout their life cycles and potential risks should be continually assessed and managed.”

The recently created UK National Cyber Security Centre (NCSC) has sought to give substance to this principle through offering new guidance on cybersecurity design principles. These principles are divided into five categories, loosely aligned with the stages at which a cyberattack can be mitigated: 1. “Establishing the context. All the elements that compose a system should be determined, so the defensive measures will have no blind spots. 2. Making compromise difficult. An attacker can target only the parts of a system they can reach. Therefore, the system should be made as difficult to penetrate as possible. 3. Making disruption difficult. The system should be designed so that it is resilient to denial of service attacks and usage spikes. 4. Making compromise detection easier. The system should be designed so suspicious activity can be spotted as it happens and the necessary action taken. 5. Reducing the impact of compromise. If an attacker succeeds in gaining a foothold, they will then move to exploit the system. This should be made as difficult as possible.”

Alec Ross (Senior Advisor for Innovation to Hillary Clinton as U.S. Secretary of State) warns that, “small businesses cannot pay for the type of expensive cybersecurity protection that governments and major corporations can (afford)” A Ross, Industries of the Future (2016). It remains to be seen to what extent cybersecurity design principles will become a financial impediment to small business engaging with AI developments in the near future.

EU takes action against cyber-enabled ‘IP theft’ perpetrated from outside the EU

In the first EU measure of its type, Council Regulation (EU) 2019/796 concerning restrictive measures against cyberattacks threatening the Union or its Member States [17th May 2019] contains targeted sanctions against online “external threats” to IP. This Regulation is aimed at threats which originate from outside the EU, use infrastructure from outside the EU, or otherwise the person(s) instrumental in such a cyberattack are established abroad (Article 1).

Amongst other criteria, Article 2 of the Regulation targets an actual or attempted cyberattack on IP which has a, potentially, “significant effect”, on the “loss of commercially sensitive data”. Such commercially sensitive data will fall within the definition of a ‘trade secret’ under Council Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure [8 June 2016] if that data: 1. is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; 2. has commercial value because it is secret; 3. has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

Article 3 of this new Regulation imposes an asset freeze on natural or legal persons, entities or bodies who are responsible for the actual or attempted cyberattack; provide financial, technical or material support for or are otherwise involved in the cyberattack; or are associated with the natural or legal person, or bodies involved. As a result of such an asset freeze, all funds and economic resources belonging to, or controlled by, such listed persons and that fall under EU jurisdiction (e.g. held by EU banks) will be frozen. In addition, no funds or economic resources may be made available to or for the benefit of the said listed person by parties falling under EU jurisdiction.

This latest EU Regulation should serve to remind us that the “big international question” of cyberspace governance still remains to be resolved, albeit Sir Mark Sedwill (Cabinet Secretary, Head of the UK Civil Service and UK National Security Advisor) would note that the major private sector providers are more receptive than ever to its resolution (see Public Accounts Committee Oral evidence: Cyber Security in the UK, HC 1745 [1st April 2019] Q93).

In his article Jurisdiction In Cyberspace: A Theory of International Spaces Darrel Menthe asserts that, “unless it is conceived of as an international space, cyberspace takes all of the traditional principles of conflicts-of-law and reduces them to absurdity.” Akin to the “law of the flag” on the high seas, nationality of a vessel (manned or unmanned) in outer space or the nationality of the base in Antarctica, Menthe advocates, even in the absence of such a sui generis treaty regime as regulates the other three international spaces, that jurisdictional analysis requires cyberspace should be treated as a fourth international space governed by a comparable set of default legal rules (see Darrel Menthe, Jurisdiction In Cyberspace: A Theory of International Spaces 4 MICH.TELECOMM.TECH.L.REV 69 (1998)).

The Norstar case at the International Tribunal for the Law of the Sea. Panama wins but awarded less than 1% of its claims.

 

In the Norstar case (Panama v Italy) on 10 April 2019, the International Tribunal for the Law of the Sea found that: Italy had violated article 87, paragraph 1, of the UN Convention on the Law of the Sea; article 87, paragraph 2, of UNCLOS was not applicable in the case; and that Italy did not violate article 300 of UNCLOS. The Tribunal awarded Panama compensation for the loss of the M/V “Norstar” in the amount of US$ 285,000 with interest.

The Norstar, a Panamanian-flagged vessel was engaged in supplying gasoil to mega yachts in the Mediterranean Sea. On 11 August 1998, the Public Prosecutor at the Court of Savona, Italy, issued a Decree of Seizure against the M/V “Norstar”, in the context of criminal proceedings instituted against eight individuals for alleged smuggling and tax evasion. At the request of Italy, the vessel was seized by Spanish authorities when anchored in the bay of Palma de Mallorca, Spain, in September 1998. The Tribunal found that art. 87 might be applicable as the bunkering activities of the M/V “Norstar” on the high seas in fact constituted not only an integral part, but also a central element, of the activities targeted by the Decree of Seizure and its execution.

The Tribunal noted that article 87 “proclaims that the high seas are open to all States” and that “save in exceptional cases, no State may exercise jurisdiction over a foreign ship on the high seas”. In this context, it observed that the “[f]reedom of navigation would be illusory if a ship … could be subject to the jurisdiction of other States on the high seas” Recalling its jurisprudence in  The Virginia G, the Tribunal then expressed the view that “bunkering on the high seas is part of the freedom of navigation to be exercised under the conditions laid down by the Convention and other rules of international law” and found that the bunkering of leisure boats carried out by the M/V “Norstar” on the high seas fell within the freedom of navigation under article 87.

In the view of the Tribunal, “if a State applies its criminal and customs laws to the high seas and criminalizes activities carried out by foreign ships thereon, it would constitute a breach of article 87 of the Convention, unless justified by the Convention or other international treaties” and “[t]his would be so, even if the State refrained from enforcing those laws on the high seas” adding that, “even when enforcement is carried out in internal waters, article 87 may still be applicable and be breached if a State extends its criminal and customs laws extraterritorially to activities of foreign ships on the high seas and criminalizes them” . The Tribunal concluded that Italy, through the Decree of Seizure by the Public Prosecutor at the Court of Savona against the M/V “Norstar”, the Request for its execution, and the arrest and detention of the vessel, had breached article 87(1) of UNCLOS.

The Tribunal found that art.87(2) which provides “These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas,…” was not applicable in this case as it was Panama, not Italy, that was subject to the obligation of due regard. The Tribunal held that Italy had not violated art. 300 (Good Faith and Abuse of Rights). Article 300 cannot be invoked on its own and a State Party claiming a breach of article 300 must, inter alia, “establish a link between its claim under article 300 and ‘the obligations assumed under this Convention’ or ‘the rights, jurisdiction and freedoms recognized in this Convention’.

The Tribunal turned to reparation and held that Panama was entitled to compensation for damage suffered by it as well as for damage or other loss suffered by the M/V “Norstar”, including all persons involved or interested in its operation and emphasized the requirement of a causal link between the wrongful act committed and damage suffered.  The causal link between the wrongful act of Italy and damage suffered by Panama was interrupted on 26 March 2003” – when the shipowner received an official communication from the Court of Savona that the vessel was unconditionally released from detention – and any damage that may have been sustained after 26 March 2003 was not directly caused by the arrest and detention of the M/V “Norstar”.

The Tribunal awarded US$ 285,000 as the value of the M/V “Norstar” together with interest This was less than 1% of the total claims put forward by Panama. The tribunal did not award compensation with regard to Panama’s other claims: loss of profits; continued payment of wages; payment due for fees and taxes; loss and damage to the charterer of the M/V “Norstar”; and material and non-material damage to natural persons.

Trump, the IMO and scrubbers

 

US President Trump’s plans last week for delaying the 0.5%  sulphur cap were defeated in the IMO who have introduced a supplementary measure about banning carriage of non compliant fuels unless the ship is fitted with scrubbers, to come into effect on 1 March 2020.

One method of ensuring compliance with the sulphur cap which comes into effect on 1 January 2020 would be the fitting of scrubber systems which though costly initially may prove more economical than the use of low sulphur diesel. Maersk has recently outlined its plans to go down the scrubber route, backtracking from its earlier position not to fit them to its fleet.

An article in todays ‘Guardian’ claims that the use of open-loop scrubbers which discharge wash water into the sea will simply transfer pollution from air to sea. Such discharges would have to comply with IMO regulations but there may still be a risk of some pollution involved. A 2015 study by UBA, a German environment agency, concluded that “wet scrubbers influence the marine environment through ph decrease, temperature increase, pollutant discharges and possibly through the use of active substances. Open scrubbers in particular have a greater environmental impact than closed or dry scrubbers due to their high water consumption and significantly larger amounts of generated washwater…The discharges of large amounts of washwater with partially persistent substances, lower ph and elevated temperature, however, are not compatible with the precautionary principles of [the EU’s] waste framework directive and Marine Strategy Framework Directive.”

The use of open-loop scrubbers is effectively banned in German and Belgian waters. However, the use of low sulphur diesel fuel in ports will contribute to other forms of air-borne pollution, such as from Nitrogen Dioxide emissions.

Sea here? What’s with the Caspian?

 

On August 12 2018 the five Caspian states- Russia, Iran, Turkmenistan, Kazakhstan, Azerbaijan – signed the Convention on the Legal Status of the Caspian Sea. The surface of the Caspian is treated as a sea and the five states are granted jurisdiction over 15 nautical miles of water from their coasts and fishing rights over an additional ten miles. However, allocation of the seabed and its mineral deposits is left to the five countries to agree on a bilateral basis. Pipelines along the seabed may be constructed, with the approval of the countries whose seabed they cross, subject to environmental conditions. The Convention forbids deployment of military vessels by non-Caspian countries in the waters of the Caspian.

 

Oil spill in EEZ. Rights of coastal state to instigate proceedings against offending vessel.

 

 

In The Bosphorus Queen Case C-15/17, ECLI:EU:C:2018:557, the CJEU has ruled on the interpretation of art. 220(6) of the UN Convention on the Law of the Sea 1982 (UNCLOS) in relation to the rights of a coastal state to initiate proceedings against a vessel arising out of pollution in its exclusive economic zone (EEZ). The vessel spilt oil on the edge of Finland’s EEZ and on its return through the Finnish EEZ it was detained and required to provide security to cover the amount of a possible fine for the spill. A fine of 17,112 Euros was subsequently imposed on the ground that the spill had caused  major damage to or a threat of major damage to Finland’s coastline or related interests, or to resources of its territorial sea or EEZ. In the event the oil spilt did not reach the coastline, caused no damage, and no counter-measures were taken.

The CJEU held:(1) The EU as a party to UNCLOS, had jurisdiction to interpret its provisions. UNCLOS had primacy over secondary EU legislation. The EU was not a party to the 1969 Intervention Convention but could take account of it as it formed part of the relevant rules for interpreting UNCLOS.

(2) The relevant EU legislation was art.7(2) of Directive 2005/35 which incorporated  into EU law the provisions of art.220(6) with almost identical wording, and had to be interpreted in accordance with art. 220(6).

(3) Article.220(6) provides: “ Where there is clear objective evidence that a vessel navigating in the [EEZ] or the territorial sea of a State has, in the [EEZ], committed a violation referred to in paragraph 3 resulting 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 [EEZ], that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws.” Paragraph 3 of art.220 refers to “violations of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards.”

The coastal state’s powers under paragraph 6 were subject to clear objective evidence both  of the commission of a violation under paragraph 3 and also of the consequences of that violation.

(4) The reference to ‘coastline or related interests’ in art. 220(6) and art 7(2) of Dir 2005/35 could be interpreted as having the same meaning as the definition of these terms in art II(4) of the 1969 Intervention Convention, bearing in mind UNCLOS also applied to non-living resources. ‘Resources’ referred to harvested species and living species associated with them or which depended on them.

(5) It was not necessary to take account of the concept of ‘significant pollution’ referred to in art. 220(5) when assessing the consequences of a violation under art. 220(6). In assessing the extent of damage caused or threatened to the resources or related interests of the coastal state account should be taken of, inter alia,

– the cumulative nature of the damage on several or all of those resources and related interests and the difference in sensitivity of the coastal State with regard to damage to its various resources and related interests;

–  the foreseeable harmful consequences of discharge on those resources and related interests, not only on the basis of the available scientific data, but also with regard to the nature of the harmful substance(s) contained in the discharge concerned and the volume, direction, speed and the period of time over which the oil spill spreads .

The specific geographical and ecological characteristics and sensitivity of the Baltic Sea area have an effect on the conditions of applicability of Article 220(6) would have an effect on this assessment.

(6) Although art 1(2) of Dir 2005/35 allowed Member States to impose more stringent measures, it did not allow them to impose more stringent measures in accordance with international law that those laid down in Article 7(2) which authorised coastal states to take measures equivalent in scope to those laid down in Art. 220(6).

Autonomous Ships- Regulatory Work Begins

The idea of developing smart ships that have ability to navigate without human input has been around for some time and as a result of technological developments in recent years, it is believed that this could be a reality in near future.

The Maritime Safety Committee (MSC) of the International Maritime Organisation (IMO) at its most recent meeting (MSC 99) in May 2018 agreed to establish a Working Group (WC) (named as Maritime Autonomous Surface Ships (MASS) WC) to undertake a scoping exercise with a view to identifying which of the existing international instruments dealing with maritime safety should be amended and what new instruments should be developed to facilitate the operation of such vessels in international waters.

For the purposes of this exercise, a number of provisional definitions have been prescribed. Most significantly, MASS is defined as “a ship which, to varying degree, can operate independent of human interaction”. This is a very broad definition and encompasses all of the ships that are currently under consideration. The WG has prescribed four degrees of autonomy: (MSC 99/WP.9 Annex 1, para 4)

  1. Ship with automated processes and decision support. Such ships have on board seafarers to operate and control shipboard systems and functions.
  2. Remotely controlled ships with seafarers on board. The ship is controlled and operated from a distant location.
  3. Remotely controlled ships without seafarers on board. The ship is controlled and operated from a distant location.
  4. Fully autonomous ships. Here, the operating system of the ship is able to make decisions and determine actions by itself.

The categorisation seems to be rather basic but perhaps simplicity is necessary at this early stage. We suppose in case of (ii), it is envisaged that seafarers on board will have technical knowledge and knowhow to intervene and take control in case of an emergency. It is also worth noting that ever increasing cyber risks should be taken into account and especially in case of (iii), it is curious to know what steps can be taken to ensure that the safety is not compromised in a case where contact between the ship and offshore operator is lost. This could be also a significant issue with regard to vessels which have full autonomy (e.g. iv).

It is worth reminding ourselves that the scope of this exercise is restricted to instruments concerning maritime safety (i.e. COLREG 1972, SOLAS 1974, STCW 1974, SAR 1979 and International Convention on Loadlines 1966). Once smart ships become operational other problems, i.e. the liability of manufacturers/software producers, impact of cyber risks on traditional division of liability, salvage law, are also likely to arise. These issues do not form at this stage part of the IMO’s work on the subject.

It is expected that the work of the MASS WC will be completed by the end of 2020. Even then, this is only beginning of a long journey. It will possibly take another decade or so to formulate new legal rules and amend existing ones to enable autonomous ships to engage in cross-border commercial operations. However, as Lao Tzu once famously said:

“The journey of a thousand miles begins with one step”.

Please note that smart ships will form part of the discussion in our 14th Annual Colloquium to be held on 10-11 September 2018:

https://www.eventbrite.co.uk/e/new-technologies-and-shippingtrade-law-tickets-46148370017

 

IMO sets greenhouse gas targets for shipping.

Shipping currently contributes about 2.2% of global greenhouse gas emissions and emissions are predicted to increase between 50% and 250% by 2050 – depending on future economic and energy developments. However, shipping is excluded from the 2015 Paris Agreement on Climate Change, so responsibility for reducing its contribution to climate change falls on the IMO.

Last Friday, 13th April, at the 72nd session of the IMO’s Marine Environment Protection Committee (MEPC), a meeting attended by 100 states, the IMO adopted an initial strategy on the reduction of greenhouse gas emissions from ships, setting out a vision to reduce Greenhouse Gas (GHG) emissions from international shipping and phase them out, as soon as possible in this century. The initial strategy envisages a reduction in the total annual GHG emissions by at least 50% by 2050 compared to 2008, while, at the same time, pursuing efforts towards phasing them out entirely. The strategy sets a carbon intensity reduction target – the amount of emissions relative to each tonne of shipping cargo – of at least 40 per cent by 2030, rising to 70 per cent by 2050. The strategy includes a specific reference to “a pathway of CO2 emissions reduction consistent with the Paris Agreement temperature goals”.

The MEPC agreed to hold the fourth Intersessional meeting of the Working Group on Reduction of GHG emissions from ships later in 2018. This working group will be tasked with developing a programme of follow-up actions to the Initial Strategy; further considering how to progress reduction of GHG emissions from ships in order to advise the committee; and reporting to the next session of the MEPC (MEPC 73), which meets 22-26 October 2018.