law of the sea convention – The Institute of International Shipping & Trade Law (IISTL) Blog

Protecting Submarine Cables: Two Submarine Telecommunication Cables Break off the Shetland Coast

The detailed map can be viewed here.

Written by Dr Youri van Logchem

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.

[i] Youri van Logchem, ‘International Relations and Defence Committee, corrected oral evidence: UNCLOS: fit for purpose in the 21st century?’ Wednesday 3 November 2021, available at https://committees.parliament.uk/event/6169/formal-meeting-oral-evidence-session/.

[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.

[iv] Ibid., p. 84.

[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.

[vi] Ibid., pp. 263-264.

[vii] Van Logchem, supra note ii, p. 113.

Israel Authorised a Floating Gas Production Platform to Move into a Rich Gas Field Located in an Area that is also Claimed by Lebanon – Can this Unilateral Act be Reconciled with International Law?

Written by Dr Youri van Logchem

Introduction

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 21^st 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.

*** This blog post has also been kindly posted, in slightly amended form, on the blog of the Journal of Territorial and Maritime Studies (JMTS Online) at https://www.journalofterritorialandmaritimestudies.net/post/israel-stations-gas-platform-in-disputed-waters.

[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.

[ii] E.g. T Scovazzi, ‘Maritime Boundaries in the Eastern Mediterranean Sea’ (2012) Policy Brief 1, 8–10, 11 June 2012, available at www.gmfus.org/publications/maritime-boundaries-easternmediterranean-sea.

[iii] Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) (Judgment) [2021], available at https://www.icj-cij.org/en/case/161/judgments.

[iv] Van Logchem, supra note 1, pp. 264-269.

[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.

[xi] Ibid., p. 137, paras. 480–481.

[xii] Van Logchem, supra note 1, pp. 172-174.

[xiii] Ibid., pp. 172-173.

[xiv] Ibid., pp. 67-86

[xv] Ibid.

[xvi] Ibid., pp. 74-78.

[xvii] Ibid., pp. 302-306.

[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.

MASS and the International Legal Framework – A Paradigm Shift or Old Wine in New Wineskins?

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 accessed here). 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).

The Award of the Arbitral Tribunal in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China): the legitimacy of China’s position takes a heavy (at least symbolic) blow

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.