1 Introduction
This chapter has two principal goals. First, it assesses the powers and responsibilities of flag States in light of the growing jurisprudence of the International Tribunal for the Law of the Sea and arbitral tribunals established under Annex VII of the United Nations Convention on the Law of the Sea (LOSC) on the interpretation of the relevant provisions of that convention.1 Second, the chapter considers the implications of this case law for flag State powers and responsibilities within an Arctic context, especially in light of the adoption of the
Much of the literature on flag State jurisdiction emphasizes the plenary and exclusive nature of the flag State’s jurisdiction (or power) over vessels flying its flag.3 While many of the recent decisions canvassed here confirm this interpretation (for example, M/V ‘Norstar’4 and Arctic Sunrise5), other decisions emphasize the due diligence responsibilities of the flag State to enforce relevant laws with respect to such matters as the safety of navigation, protection of the environment, or fisheries. These decisions include the International Tribunal for the Law of the Sea (ITLOS) Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC Advisory Opinion)6 and the South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China).7 The laws at issue include both the laws of a coastal State that are opposable against foreign flagged vessels as well as the so-called rules of reference incorporated into the norm structure of the LOSC, either by a general renvoi or by reference to the rules adopted by a relevant international organization, most frequently in this context, the IMO.8 The Polar Code is one such rule of
Part I begins with a review of the basic rules with respect to flag State powers, the immunity of foreign flagged vessels, and freedom of navigation before turning to examine the responsibilities and duties of flag States, including those responsibilities arising from the duty of due regard and from any relevant rules of reference.
Part II considers the implications of these rules and the interpretive case law for implementation of the Polar Code and Canada’s ASSPPR.
2 Part 1: Flag State Powers, Immunities and Responsibilities
2.1 The Basic Rules with Respect to Flag State Powers, the Immunity of Foreign Flagged Vessels, and Freedom of Navigation
It is up to each State to establish the terms and conditions on which it will grant nationality to a ship or different categories of ship.10 While there must be “a genuine link between the State and ship,” the existence of such a link is not a condition precedent to the grant of nationality; rather the requirement of a genuine link supports the need “to secure more effective implementation of the duties of the flag State.”11
The Annex VII tribunal in Enrica Lexie elaborated on the test for determining whether or not the immunity associated with the freedom of navigation had been violated. It observed that under international law “the exercise of jurisdiction by a State entails an element of prescribing laws, rules or regulations over conduct, or applying or enforcing such laws, rules or regulations over persons or property”24 and “additionally … the exercise of jurisdiction over a foreign ship on the high seas, unless justified by the Convention or other international treaties, is generally agreed to constitute a breach of freedom of navigation.”25
But on the facts of that incident26 the tribunal concluded that Italy had not discharged the burden on it of establishing that “the Indian Coast Guard,
The Arctic Sunrise award also offers an example of coastal State interference with the exercise of the freedom of navigation within the EEZ. While the Annex VII tribunal was at pains to examine all possible legal bases that might have been available to Russia to justify the measures that it took within its EEZ in boarding, investigating, inspecting, arresting, seizing and detaining the Arctic Sunrise without the consent of the Netherlands as the flag State, the tribunal concluded that none of these possible grounds were available to Russia.30 Accordingly, the Russian Federation was in breach of Articles 56(2), 58(1), 58(2), 87(1)(a) and 92(1) of the LOSC.31
There is no freedom of navigation in either a coastal State’s territorial sea or within its internal waters, although there is a right of innocent passage through the territorial sea of a coastal State32 as well as those internal waters that are enclosed as internal waters as the result of a coastal State establishing drawing straight baselines.33 Nor, as is illustrated by the award in Enrica Lexie, is there
Finally, the freedom of navigation on the high seas or within a coastal State’s EEZ does not afford a foreign flagged vessel a right to leave the port of a coastal State (which it voluntarily entered) to “gain access to the high seas notwithstanding its detention in the context of legal proceedings against it.”34
2.2 The Responsibilities/Duties of the Flag State
In addition to the above decisions emphasizing freedom of navigation and immunity from the jurisdiction of other States, several decisions and advisory opinions emphasize the responsibilities of the flag State with respect to the provisions of the LOSC dealing with the exploitation of marine living resources and the protection of the marine environment. Some of these decisions also explore the implications of the duty of due regard as applied to the responsibilities of the flag State (explored in more detail in the next section). These decisions dealing with the duties of the flag State are of particular interest to coastal States insofar as a coastal State may be able to use them to engage the flag State in more effective enforcement of valid coastal State rules dealing with marine living resources and environmental protection.
The first question addressed the obligations of the flag State if its flagged vessels are conducting illegal, unreported and unregulated (IUU) fishing activities within the EEZ of another State. The second question addressed the potential liability of the flag State for those activities. And the third question was largely concerned with the responsibility of an international organization, such as the European Union, and its Member States for potential IUU activities of vessels flagged to individual Member States.35 This chapter focuses on the first two questions since they raise more general issues of flag State responsibility.
With respect to the first question, ITLOS emphasized that while the coastal State may have the primary responsibility for taking the necessary measures to prevent, deter, and eliminate IUU fishing within its EEZ, this does not release other States (i.e., flag States) from their obligations.36 And, since the LOSC does not expressly address the issue of IUU fishing, the question must be examined “in light of general and specific obligations of flag States under the Convention for the conservation and management of marine living resources.”37 Under the heading of general obligations, the ITLOS listed Articles 91, 92 and 94 as well as Articles 192 and 193 of the LOSC.38 The tribunal’s comments on Article 94 are especially significant.
In general terms Article 94, headed ‘Duties of the flag State,’ requires the flag State to effectively exercise its jurisdiction and control over ships flying its flag in “administrative, technical and social matters.” The subsequent paragraphs of the article give more specific examples of what is required of a flag State in terms of assuming jurisdiction under its domestic law. But, in the view of the ITLOS, these examples are indicative of and not exhaustive of what might be embraced by the term “administrative, technical and social matters.”39 This
As for Articles 192 and 193, these provisions impose obligations on all States to protect and preserve the marine environment, including the conservation of marine living resources.42 And for ITLOS this imposes on the flag State “an obligation to ensure compliance by vessels flying its flag with the relevant conservation measures concerning living resources enacted by the coastal State” for its EEZ.43 However, as the International Court of Justice has observed in its decision on Alleged Violations of Sovereign Rights, the obligation to ensure compliance by its flag vessels does not afford a flag State the “jurisdiction to enforce conservation standards on fishing vessels of other States” in the EEZ.44
the nature of the laws, regulations and measures that are to be adopted by the flag State is left to be determined by each flag State in accordance with its legal system, the flag State nevertheless has the obligation to include in them enforcement mechanisms to monitor and secure compliance with these laws and regulations. Sanctions applicable to involvement in IUU fishing activities must be sufficient to deter violations and to deprive offenders of the benefits accruing from their IUU fishing activities.47
The flag State also has a duty to cooperate with respect to allegations of IUU fishing as it does with respect to the prevention of pollution.48
The Annex VII tribunal in the South China Sea Arbitration endorsed these observations noting that insofar as Article 62(4) imposes the obligation to observe the laws and regulations of the coastal State,49 it must follow that “anything less than due diligence by a State in preventing its nationals from unlawfully fishing in the exclusive economic zone of another would fall short of the regard due pursuant to Article 58(3) of the Convention.”50
The responses to the first question also informed the ITLOS’s response to the second question.51 The responsibility of the flag State would be engaged if it failed to take all necessary and appropriate measures to ensure that vessels flying its flag do not conduct IUU activities, whether as a repeated pattern of
The South China Sea Arbitration award also elaborated on the obligations of States under Part XII of the LOSC. As the arbitral tribunal noted, these obligations “apply to all States with respect to the marine environment in all maritime areas, both inside the national jurisdiction of States and beyond it.”57 Furthermore it is clear that these provisions can be operationalized without the support of a due regard requirement.
Relying to a significant degree on the obligation under Article 194(5) to protect and preserve fragile ecosystems,58 the arbitral tribunal concluded that “where a State is aware that vessels flying its flag are engaged in the harvest of species recognized internationally as being threatened with extinction or are inflicting significant damage on rare or fragile ecosystems or the habitat of depleted, threatened, or endangered species, its obligations under the Convention include a duty to adopt rules and measures to prevent such acts and to maintain a level of vigilance in enforcing those rules and measures.”59 The tribunal considered that China was well aware of the activities of its nationals
2.3 The Duty of Due Regard (of the Flag State)
In exercising the freedom of navigation in the high seas, all flag States owe a duty of due regard for the “interests” of other States exercising their parallel freedoms, as well as any rights under the Convention with respect to activities in the Area.63 A similar rule applies within the EEZ of a coastal State.64 Presumably, this entails a due diligence obligation on the part of the flag State to ensure that its vessels observe this duty of due regard.
The majority and dissenting members of the Annex VII tribunal in Enrica Lexie reached very different conclusions as to the content of the due regard obligation of the flag State (Italy) as it pertained to the exercise of the freedom of navigation by the Enrica Lexie within what was, in that case, India’s EEZ. India took the position in its counterclaim that Italy had violated India’s sovereign rights within its EEZ insofar as the Enrica Lexie impeded the St Antony in the exercise of its right to fish.65 The majority rejected that characterization on the basis that the actions of the marines on board the Enrica Lexie “were not directed at undermining or interfering with India’s sovereign rights”66 but were instead directed at a perceived act of piracy.67 More specifically with respect to the obligation of due regard, the majority observed that Article 58 referentially applied to the EEZ all of the high seas provisions of the LOSC relating to the repression of piracy, with the result that the “repression of piracy by States in
In the instant case, the right for which Italy must have due regard is India’s sovereign rights to exploit the living resources (fisheries) in its exclusive economic zone. Italy has a corresponding obligation to respect that right. The conduct of the Marines in firing shots at the “St. Antony”, resulting in the death of the two Indian fishermen was a breach of that obligation. This obligation exists notwithstanding that the Marines did not intend to harm India’s enjoyment of its right to exploit the living resources in its exclusive economic zone. That is so because a State’s international responsibility for wrongful conduct … is engaged independently of whether it intended to cause harm.
…. The nature of India’s right is such that Italy is not relieved of its obligation to respect and have due regard for that right on the ground that the Marines perceived that there was a threat of a collision and pirate attack.
One of the factors identified in the Chagos Marine Protected Area Arbitration award for determining the extent of the regard required by the Convention is the “availability of alternative approaches”. It was certainly open to the Marines to take some action other than firing at a miniscule vessel, leading to the death of the two Indian fishermen. … This provides another basis for concluding that the obligation to have due regard to India’s rights was breached by Italy.72
In this case the dissent seems more persuasive with respect to the content of the due regard obligation of the flag State in these particular factual circumstances.
2.4 Rules of Reference and Flag State Responsibilities
Rules of reference incorporating into the LOSC both general and specific norms of international law are found throughout the text of the Convention.73 While such rules most commonly take the form of a reference to generally accepted international rules and standards (or GAIRS),74 they may also take the form of a more general renvoi to “other rules of international law.”75
The South China Sea Arbitration is an important decision as to how rules of reference may inform and elaborate upon flag State obligations arising under different provisions of the LOSC. One of the Philippines’ submissions in this arbitration was that China had breached its obligations under Articles 21 and 94 of the Convention insofar as it operated its enforcement vessels in a manner inconsistent with the provisions of the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREGS).76 COLREGS entered into force in 1977 and at the time of the arbitration counted 156 contracting parties representing more than 98 per cent of world tonnage.77
Both China and Philippines were parties to COLREGS although the Philippines did not join until after the events complained of. Nevertheless, the tribunal concluded that the COLREGS was applicable as between the parties as a result of Article 94 of the LOSC. As discussed above, while paragraph 1 of
2.5 Conclusion to Part I
This part of the chapter has examined how recent case law has elaborated on flag State powers and the immunity of foreign flagged vessels. It has also examined how the case law has elaborated on flag State responsibilities. These responsibilities include the due diligence obligations of the flag State to have its vessels observe the laws of the coastal State insofar as the applicability of those laws is provided for by the LOSC, as well as due regard obligations and other obligations referentially incorporated into the text of the LOSC by rules of reference. While only one of these decisions, the Arctic Sunrise award, is an Arctic case, all of the decisions canvassed here are relevant to the relationship between coastal States and flag States within Arctic waters.
3 Part 2: Flag State Powers and Responsibilities and the Polar Code
As discussed elsewhere in this volume,81 the Polar Code82 entered into force in January 2017. The Code was developed to “supplement instruments in order to increase the safety of ships’ operation and mitigate the impact on the people and environment in the remote, vulnerable and potentially harsh polar waters.”83 The Code takes the form of amendments to the International Convention for the Safety of Life at Sea (SOLAS)84 and the International Convention for the Prevention of Pollution from Ships (MARPOL).85 Part I of the Code
This part begins by examining the implications of the Polar Code for flag States and then turns to examine Canada’s implementing regulations
3.1 Flag State Responsibilities
As Bartenstein has summarized, “(m)ost of the safety provisions relate to construction, design, manning and equipment.”86 These provisions, along with additional provisions related to voyage planning, represent the minimum standards to be applied by flag States.87 A flag State owes a due diligence obligation to ensure that these provisions are implemented as part of its domestic law, either through transformation in a dualist State (as noted in the introduction Canada adopted the ASSPPR for this purpose), or through direct application in a monist State (such as Russia).88 This duty follows from the provisions of Article 94 of the LOSC and the jurisprudence discussed above. Furthermore, since the provisions of the Polar Code have been adopted by the IMO, they must also represent “generally accepted international regulations, procedures and practices.” A flag State has a due diligence responsibility to ensure that its domestic measures “conform” to the requirements of the Polar Code.89 A flag State also has a due diligence obligation “to take any steps which may be necessary to secure” their observance.90
Much the same can be said for the mandatory pollution prevention provisions of the Polar Code dealing with the discharge of oil or oily mixtures, noxious liquid substances, sewage, and garbage and associated operational requirements (and, in the case of oil, structural requirements).91 These provisions must constitute GAIRS, and, as such, Article 211(2) of the LOSC requires flag States to adopt “laws and regulations for the prevention, reduction and control of pollution of the marine environment” from its flagged
3.2 Canada’s ASSPPR
As noted in the introduction, Canada has chosen to implement its responsibilities under the Polar Code through the adoption of the ASSPPR.94 Part 1 of the Regulations deals with safety measures and Part 2 deals with pollution prevention measures. Both purport to apply to “Canadian vessels navigating in polar waters and foreign vessels navigating in a shipping safety control zone.”95 The Shipping Safety Control Zones divide Canada’s Arctic waters as defined by the Arctic Waters Pollution Prevention Act96 (AWPPA) into “16 subareas in accordance with usually prevailing ice conditions.”97 Insofar as the Regulations are directed at Canadian vessels operating within polar waters at either pole, it matters not whether the Regulations go beyond the prescriptions of the Polar Code.98 But, to the extent that the Regulations aspire to apply to foreign flagged vessels operating within Canadian Arctic waters, it is important to interrogate the extent to which they go beyond the Code. To the extent that they go beyond the Code, they cannot be GAIRS and must be justified under some other authority of a coastal State under the LOSC.
Bartenstein concludes that three elements of the Regulations go beyond the safety requirements of the Code, while several aspects of the waste deposit rules in the Regulations are more stringent than those prescribed by the Code. The additional safety provisions prescribed by the Regulations relate to “navigation periods, mandatory message transmission, and the presence on
The Regulations purport to apply to all of Canada’s Arctic waters. These waters include not only the waters within the Arctic Archipelago that Canada regards as its historic internal waters, but also its 12 nautical mile territorial sea and its Arctic EEZ.101 The LOSC allows a coastal State to prescribe both vessel safety and pollution control rules for vessels exercising a right of innocent passage within its territorial sea,102 but such laws must not relate to “the design, construction, manning or equipment of foreign ships” unless they are giving effect to GAIRS. Furthermore, such laws may not “impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage.”103 Similarly, within the EEZ, foreign flagged vessels may exercise freedom of navigation104 and a coastal State may only prescribe additional pollution prevention measures that might affect freedom of navigation with the approval of the IMO.105
These restrictions on coastal State authority with respect to the territorial sea and the EEZ lead Bartenstein (writing about the additional safety provisions of the Regulations) to conclude that the navigation rules of the LOSC “do not provide a [legal] basis for the additional non-GAIRS provisions in the ASSPPR.”106 Bartenstein expresses similar reservations with respect to the additional pollution prevention provisions of the Regulations.107
non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence.
While there are some threshold questions as to the applicability of Article 234 (e.g., does it apply to the territorial sea as well as the EEZ),109 Bartenstein’s main conclusion is that Canada can rely on Article 234 to justify both the additional safety and pollution prevention provisions of the Regulations.110 While Article 234 does not refer to safety-based rules, Bartenstein concludes that safety rules can be justified under Article 234 insofar as the Code itself acknowledges the relationship between the additional safety measures and protection of the environment.111 Article 234 does require “due regard” for navigation, but, in Bartenstein’s view, this must be read in light of the environmental purpose of the article, and thus, even construction, design, manning and equipment measures might be permissible “as long as they do not prevent international navigation.”112
In summary, Canada, as a flag State, has a due diligence obligation to adopt and enforce the safety and pollution control provisions of the Polar Code with respect to its flag vessels.113 Canada may elect to adopt more stringent measures with respect to its flag vessels than those contained in the Code. In
Other flag States have a due diligence obligation to ensure that their vessels comply with the Polar Code as a reflection of GAIRS. They also have a due diligence obligation to have their vessels comply with the requirements of Canada’s ASSPPR when navigating in Canada’s internal waters. Finally, they have the same due diligence obligation with respect to any incremental requirements of the ASSPPR to the extent that those Regulations are consistent with the LOSC as outlined above, specifically including Article 234. To the extent that they are not consistent with the LOSC, including Article 234, foreign flagged vessels are entitled to immunity from those incremental provisions when navigating in Canada’s territorial sea or EEZ to the extent of that inconsistency.114
4 Conclusion
Part 1 of this chapter engaged with the recent case law dealing with the powers, immunities and responsibilities of flag States under the terms of the LOSC, including GAIRS, that is to say, the provisions of other instruments that are referentially incorporated within the LOSC’s normative framework. This case law has confirmed traditional interpretations of the freedom of navigation and associated immunities, but has also offered an expanded interpretation of those freedoms to include, for example, the right of protest on the high seas and within the EEZ of a coastal State. Perhaps more significant is the way in which the case law has expanded upon the obligations of flag States. While
Part 2 of this chapter addressed the implications of this case law for shipping and navigation in Canada’s Arctic, especially in light of the adoption of the Polar Code by the IMO and Canada’s implementing regulations. The Polar Code is concerned with both safety measures and pollution control measures. It is an example of a GAIRS and, as such (and as established by Part 1 of this chapter), a flag State has a due diligence obligation to adopt, apply and enforce these new rules with respect to any of its vessels navigating in the waters covered by the Code, including Canada’s Arctic waters. Canada as a flag State has implemented the contents of the Code with the adoption of the ASSPPR, but it has also included incremental provisions that it applies not only to its flagged vessels but also to foreign flagged vessels—whether navigating within Canada’s internal waters or within its Arctic territorial seas and its Arctic EEZ. The case law surveyed in Part 1 suggests that a foreign flag State and its vessels ordinarily might have a good claim to immunity from the application of these incremental rules on the grounds that they go beyond GAIRS and interfere with the freedom of navigation. However, the literature suggests that such incremental rules might be opposable to foreign flagged vessels on the basis of Article 234. If that is the case, and to the extent to which that is the case, there is no immunity from the application of such rules, and a State of a registry of a foreign flagged vessel has a due diligence obligation to ensure that its vessels observe these incremental requirements.
Acknowledgements
Thanks to Kristin Bartenstein and Aldo Chircop for comments and critical feedback on earlier drafts of this chapter.
United Nations Convention on the Law of the Sea, 10 December 1982 (in force 16 November 1994), 1833 UNTS 396 [LOSC].
International Code for Ships Operating in Polar Waters (Polar Code), IMO Doc MEPC 68/21/Add.1, Annex 10, entered into force 1 January 2017. The consolidated text is available here http://www.imo.org/en/MediaCentre/HotTopics/polar/Documents/POLAR%20CODE%20TEXT%20AS%20ADOPTED.pdf.
See, for example, Richard Barnes, “Flag States,” in The Oxford Handbook of the Law of the Sea, eds., Donald Rothwell, Alex Oude Eflerink, Karen Scott and Tim Stephens (Oxford: Oxford University Press, 2015), 304–324.
M/V ‘Norstar’ (Panama v. Italy), Judgment, 10 April 2019, ITLOS Reports 2018–2019, 10.
Arctic Sunrise Arbitration (Netherlands v. Russia), Award, 14 August 2015, Permanent Court of Arbitration (PCA), Case No. 2014-02.
Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, 4 [SRFC Advisory Opinion].
South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China), Award, 12 July 2016) PCA, Case No. 2013-19.
W Van Reenen, “Rules of Reference in the New Convention on the Law of the Sea in Particular Connection with Pollution of the Sea by Oil from Tankers,” Netherlands Yearbook of International Law XII (1981): 3–44; Catherine Redgwell, “Mind the Gap in the GAIRS: The Role of Other Instruments in LOSC Regime Implementation in the Offshore Energy Sector,” International Journal of Marine and Coastal Law 29 (2014): 600–621; and, most recently, Lan Ngoc Nguyen, “Expanding the Environmental Regulatory Scope of UNCLOS Through the Rules of Reference: Potentials and Limits,” Ocean Development & International Law (ODIL) 52:4 (2021): 419–444.
SOR/2017-286 [ASSPPR]. The regulatory impact assessment statement (RIAS) is available at https://gazette.gc.ca/rp-pr/p1/2017/2017-07-01/html/reg1-eng.html (1 July 2017). For commentary on the regulations, see Kristin Bartenstein, “Between the Polar Code and Article 234: The Balance in Canada’s Arctic Shipping Safety and Pollution Preventions Regulations” ODIL 50 (2019): 335–362; Kristin Bartenstein and Suzanne Lalonde, “Shipping in the Canadian and Russian Arctic: Domestic Legal Responses to the Polar Code,” in Arctic Shipping: Climate Change, Commercial Traffic and Port Development, eds., Frédéric Lasserre and Olivier Faury (Routledge, 2019), 137–155 at 140–146.
LOSC (n 1), Article 92(1); M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July 1999, ITLOS Reports 1999, 10, para 64 ; The “Enrica Lexie” Incident (Italy v. India), Award, 1 May 2020, PCA Case No. 2015-28, 1022–1025.
In the view of the Tribunal, once a ship is registered, the flag State is required, under article 94 of the Convention, to exercise effective jurisdiction and control over that ship in order to ensure that it operates in accordance with generally accepted international regulations, procedures and practices. This is the meaning of “genuine link.”
See Barnes (n 3), pp. 308–309.
Arctic Sunrise (n 5), para 226.
Id., para 227. But while these freedoms may be extensive, they evidently do not extend to engaging in those activities over which a coastal State has exclusive decision-making and regulatory power (e.g., the construction, operation and use of artificial islands and installations, LOSC (n 1), Article 60). See also South China Sea Arbitration (n 7), paras 1031–1038.
MV ‘Norstar’ (n 4), paras 214, 220; Enrica Lexie (n 10), para 464.
MV ‘Norstar’ (n 4), para 214; Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Judgment, 21 April 2022, International Court of Justice, para 161.
The jural correlative of an immunity is a disability, that is, the absence of power or jurisdiction of another legal actor, in this case, any other State. For the idea of jural correlatives, see Wesley Newcomb Hohfeld, “Some Fundamental Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 23 (1913):16–59; and for the application of Hohfeld’s ideas to the LOSC, see Philip Allott, “Power Sharing in the Law of the Sea” American Journal of International Law 77 (1983): 1–30, and for my own views Nigel Bankes “The Nature of Legal Relations between States under the Proposed BBNJ Agreement,” in International Law and Marine Areas beyond National Jurisdiction: Reflections on Justice, Space, Knowledge and Power, eds., Vito De Lucia, Alex Oude Elferink and Lan Ngoc Nguyen (Leiden/Boston: Brill, 2022), 45–75.
MV ‘Norstar’ (n 4), para 216; see also Enrica Lexie (n 10), generally paras 463–505, 521–536.
Enrica Lexie (n 10), para 531; Arctic Sunrise (Merits) (n 5), para 231.
LOSC (n 1), Article 92(1).
Id., LOSC (n 1), Article 58(3); M/V ‘Saiga’ (No 2) (n 10), paras 131–136. In that case, the coastal State (Guinea) breached the LOSC when it purported to apply and enforce its customs laws against the M/V Saiga within its EEZ.
MV ‘Norstar’ (n 4), para 224. There is a strongly written collective dissent (Judges Cot, Pawlak, Yanai, Hoffmann, Kolodkin, Lijnzaad and Judge ad hoc Treves), but the dissent largely turns on what they see as the absence of any nexus between Italy’s enforcement activities (carried out by Spain at the behest of Italy in Spanish internal waters) and the activities of the MV Norstar on the high seas.
Id., para 225.
Id. Recall that Italy, like other Mediterranean States, has not proclaimed an EEZ. Recall also that the bunkering activities were to supply luxury yachts based in Italy. High seas freedoms do not extend to include bunkering activities to supply fishing vessels within a coastal State’s EEZ. See M/V ‘Virginia G’ (n 11), para 223. The MV Norstar (n 4) was not engaged in such an activity.
Enrica Lexie (n 10), para 526; see also para 469, “the interference may take physical or non-physical forms” and para 472, “a breach of freedom of navigation may result from acts including physical or material interference with navigation of a foreign vessel, the threat or use of force against a foreign vessel, or non-physical forms of interference whose effect is that of instilling fear in, or causing hindrance to, the exercise of the freedom of navigation.”
Enrica Lexie (n 10), para 473 (references omitted).
The incident began when Italian marines posted on the M/V Enrica Lexie perceived a threat of attack from the St Antony while navigating through India’s EEZ. The marines opened fire on the St Antony, an Indian fishing vessel, killing two members of the crew. Indian coastguard vessels subsequently accompanied the Enrica Lexie to an anchorage in Indian territorial waters where the vessel was boarded.
Id., para 535.
Id., para 480.
Id., paras 1037, 1041–1043. Article 87 of the LOSC references freedom of navigation among several other freedoms. Article 90 simply provides in its entirety that “[e]very State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.”
These possible grounds included: right of visit on suspicion of piracy (Article 110); violation of coastal State laws pertaining to installations; terrorist offences; the right of a coastal State to enforce laws pertaining to non-renewable resources; enforcement jurisdiction pertaining to protection of the marine environment; and dangerous manoeuvering.
Arctic Sunrise (n 5), para 401C and also referencing the proceedings (arrest, detention and judicial proceedings) taken against the captain and crew of the Arctic Sunrise.
LOSC (n 1), Article 17.
Id., Article 8(2). It is important to note that while Canada drew straight baselines around the Arctic Archipelago in 1985, it takes the position that these baselines simply served to define “the outer limits of Canada’s historic internal waters.” Parliament of Canada, House of Commons Debates, 33rd Parliament, First Session, Vol 5, 10 September 1985 at 6463 per Joe Clarke, Minister for Foreign Affairs. Consequently, Canada takes the view that Article 8(2) is inapplicable insofar as this was not a case of “enclosing waters as internal waters areas which had not previously been considered as such.” For the straight baselines order see Territorial Sea Geographical Coordinates (Area 7) Order, SOR/85-872. For more detailed expositions of Canada’s position see Suzanne Lalonde, “Increased Traffic through Canadian Arctic Waters: Canada’s State of Readiness,” Revue Juridique Thémis 38 (2004): 49–124 and Bartenstein (n 9), pp. 346–347. See also Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. Russian Federation), Award on Preliminary Objections, 21 February 2020, PCA, Case No. 2017-06 [Coastal State Rights] noting that it goes too far to suggest that a dispute pertaining to internal waters could not concern the interpretation or application of the Convention (para 294). Rather, the question must be whether the particular conduct complained of raises questions as to the interpretation or application of the Convention (para 296).
M/V ‘Louisa’ (St Vincent and the Grenadines v. Kingdom of Spain), Judgment, 28 May 2013, ITLOS Reports 2013, 4, para 109. ITLOS ultimately concluded that it lacked jurisdiction since the applicant was unable to show the necessary nexus between the facts and any provision of the LOSC.
SRFC Advisory Opinion (n 6), para 2.
Id., paras 106, 108.
Id., para 110.
Id., para 111.
Over time, however, flag State jurisdiction and control have evolved to cope with new issues, reflecting the changing needs of society and the new demands of the time. In interpreting article 94 of the Convention, it is important to take into account this evolving, open-ended context of the duties of the flag State.
Judge Paik returns to this theme at paras 24–27.
SRFC Advisory Opinion (n 6), para 119.
Id., paras 116, 118, 119.
Id., para 120.
One of the goals of the Convention, as stated in its preamble, is to establish “a legal order for the seas and oceans which … will promote” inter alia “the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment”. Consequently, laws and regulations adopted by the coastal State in conformity with the provisions of the Convention for the purpose of conserving the living resources and protecting and preserving the marine environment within its exclusive economic zone, constitute part of the legal order for the seas and oceans established by the Convention and therefore must be complied with by other States Parties whose ships are engaged in fishing activities within that zone. (emphasis added)
Alleged Violations of Sovereign Rights (n 15), para 95.
SRFC Advisory Opinion (n 6), para 124.
Id., para 125, and referencing the Seabed Disputes Chamber, Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, 10, para 108. For further observations with respect to the nature of due diligence obligations, see Nele Matz-Lṻck and Erik Van Doorn, “Due Diligence Obligations and the Protection of the Marine Environment,” Observateur des Nations Unies 42 (2017): 178–195, Barnes (n 3), pp. 323–324, and Nigel Bankes, “Reflections on the Role of Due Diligence in Clarifying State Discretionary Powers in Developing Arctic Natural Resources,” Polar Record (2020), https://doi.org/10.1017/S0032247419000779.
SRFC Advisory Opinion (n 6), para 138.
Id., para 140 and referencing MOX Plant (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports 2001, para 82. See also South China Sea Arbitration (n 7), para 946, referencing both Article 197 (cooperation on a global or regional basis) and Article 123 (cooperation of States bordering enclosed or semi-enclosed seas).
South China Sea Arbitration (n 7), para 740.
Id., para 744.
ITLOS reframed the liability question as a question of State responsibility. SRFC Advisory Opinion (n 6), para 145.
Id., para 150. ITLOS confines itself to IUU activities within the EEZ of the SRFC Member States, but in principle these observations are applicable more generally. See also Judge Paik’s separate opinion characterizing many of these obligations as obligations of customary international law not just as obligations arising under the LOSC.
South China Sea Arbitration (n 7), para 754.
Id., para 755.
Id.
Id., para 756.
Id., para 940. See also SRFC Advisory Opinion (n 6), para 120, and, with respect to the internal waters of a State, Coastal State Rights (n 33), para 295.
But also informed by the corpus of international environmental law including the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973 (in force 1 July 1975), 993 UNTS 243; see also South China Sea Arbitration (n 7), para 956.
South China Sea Arbitration (n 7), para 961.
Id., para 964.
Id., para 983.
Id., para 993.
LOSC (n 1), Article 87(2).
Id., Article 58(3).
Enrica Lexie (n 10), para 947.
Id., para 953.
Id., paras 954, 955, referencing India’s obligation “to have due regard to the rights and duties of other States and the applicability of Article 110 of the Convention.” It is difficult to appreciate the relevance of the reference to Article 110 which deals with the right of visit of a warship.
Id., para 979.
Id., paras 980, 981.
Enrica Lexie (n 10), Joint Dissenting Opinion, paras 7–9.
Id., paras 17–19.
Id.
See especially van Reenen (n 8).
E.g., LOSC (n 1), Article 21(2). It is generally understood that a rule can be generally accepted (a contextual question of fact) even if such a rule could not be considered as a rule of customary law. See, e.g., Nguyen (n 8), pp. 423–424.
E.g., LOSC (n 1), Article 2(3), as discussed in Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, PCA Case No. 2011-03, paras 499–536.
20 October 1972 (in force 15 July 1977), 1050 UNTS 17.
South China Sea Arbitration (n 7), para 1081.
Id., para 1083.
Thus, while the jurisdiction of a Part XV tribunal is prima facie limited to “a dispute concerning the interpretation or application of this Convention” (LOSC (n 1), Article 288(1)), the content of “this Convention” expands through the process of referential incorporation.
South China Sea Arbitration (n 7), para 1105. It is not entirely clear why the tribunal considers that it needed to rule out mere negligence. All of the instances referenced here involved Chinese State vessels and thus there was no need to assess whether China acted with due diligence to ensure that its non-State flagged vessels adhered to the COLREGS as a pre-condition for China’s State responsibility.
See Bartenstein in this volume.
Polar Code (n 2). For background on the Code, see Andrea Scassola, “An International Polar Code of Navigation: Consequences and Opportunities for the Arctic,” Yearbook of Polar Law 5 (2013): 271–297; David Leary, “The IMO Mandatory International Code of Safety for Ships: Charting a Sustainable Course for Shipping in the Polar Regions,” 7 Yearbook of Polar Law 7 (2015): 426–447; Øystein Jensen, “The International Code for Ships Operating in Polar Waters: Finalization, Adoption and Law of the Sea Implications,” Arctic Review on Law and Politics 7 (2016): 60–82; Ted L McDorman, “A Note on the Potential Conflicting Treaty Rights and Obligations between the IMO’s Polar Code and Article 234 of the Law of the Sea Convention,” in International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, eds., Suzanne Lalonde and Ted L McDorman (Leiden/Boston: Brill Nijhoff, 2015), 141–159; J Ashley Roach, “The Polar Code and Its Adequacy,” in Governance of Arctic Shipping: Balancing Rights and Interests of Arctic States and User States, eds., Robert C Beckman et al. (Brill Nijhoff: Leiden/Boston, 2017) chapter 5; Tore Henriksen, “Coastal State Jurisdiction in Ice-Covered Areas: The Impacts of Climate Change and the Polar Code,” in The Achievements of International Law: Essays in Honour of Robin Churchill, eds., Jacques Hartmann and Urfan Khaliq (Bloomsbury Publishing, 2021), 175–207.
Polar Code (n 2), Preamble, para 1.
1 November 1974 (in force 25 May 1980), 1185 UNTS 2; Amendments to the International Convention for the Safety of Life at Sea 1974, IMO Resolution MSC.386(94) (21 November 2014, effective 1 January 2017)
2 November 1973 (in force 2 October 1983), 1340 UNTS 184 (as amended); Amendments to MARPOL Annexes I, II, IV and V, IMO Resolution MEPC.265(68) (15 May 2015, effective 1 January 2017). Jensen (n 82), p. 63, describes the options, referring to the advantages offered by IMO’s tacit amendment procedures for obtaining speedy entry into force. Jensen (pp. 71–75) also suggests that the provisions of the Code incorporated in SOLAS and MARPOL will also have normative effect as generally accepted international rules and standards (GAIRS) for the purposes of relevant provisions of the LOSC.
Bartenstein (n 9), p. 337.
Id., 340.
See Bartenstein and Lalonde (n 9), pp. 146–150.
LOSC (n 1), Article 94(5). Bartenstein (n 9), p. 341, however, notes that this view may not be universally shared insofar as the Code’s “goal-based approach provides States with a wide discretion as to the requirements they prescribe” and as such “does not ensure the level of uniformity that makes GAIRS acceptable.” Bartenstein attributes this position to Tore Henriksen, “Protecting Polar Environments: Coherency in Regulating Arctic Shipping,” in Research Handbook on International Marine Environmental Law, ed., Rosemary Rayfuse (Cheltenham: Edward Elgar, 2015).
LOSC (n 1), Article 94(5); SRFC Advisory Opinion (n 6).
Polar Code (n 2), Part II-A, Pollution Prevention Measures.
LOSC (n 1), Article 211(2).
Id., Article 94(5); South China Sea Arbitration (n 7), para 1082.
The regulations are adopted pursuant to the Canada Shipping Act, 2001, SC 2001, c 26 and the Arctic Waters Pollution Prevention Act, RSC 1985, c A-12 [AWPPA].
ASSPPR (n 9), ss 7, 13. Neither Part applies (s 3) to government vessels and vessels owned or operated by a foreign State when they are being used only in government non-commercial services.
AWPPA (n 94). “Arctic waters means the internal waters of Canada and the waters of the territorial sea of Canada and the exclusive economic zone of Canada, within the area enclosed by the 60th parallel of north latitude, the 141st meridian of west longitude and the outer limit of the exclusive economic zone; however, where the international boundary between Canada and Greenland is less than 200 nautical miles from the baselines of the territorial sea of Canada, the international boundary shall be substituted for that outer limit.”
Bartenstein (n 9), p. 337.
Id., 344.
Id., 339 and with a more detailed exposition at 340.
Id., 344.
See (n 31) re historic internal waters.
LOSC (n 1), Article 21(1)(a) and (f).
Id., Articles 24(1), 17, 211(4).
Id., Articles 58, 87.
Id., Articles 56(1)(b)(iii) and (2), 58(2), 211.
Bartenstein (n 9), p. 141.
Id., 145 noting that, for the territorial sea, the structural requirements for noxious liquid substances represent non-GAIRS construction, design, manning and equipment measures and, with respect to the EEZ, “[s]ince the additional ASSPPR provisions are not GAIRS, their compatibility with the EEZ regime is also not straightforward.”
On the background to Article 234 of the LOSC, see Donald McRae and DJ Goundrey, “Environmental Jurisdiction in Arctic Waters: The Extent of Article 234,” University of British Columbia Law Review 16 (1982): 197, at 210–215; Armand de Mestral, “Article 234 of the United Nations Convention on the Law of the Sea: Its Origins and its Future,” in Lalonde and McDorman (eds) (n 82), p. 111; Erik Franckx and Laura Boone, “Ice-Covered Areas,” in United Nations Convention on the Law of the Sea: A Commentary, ed., Alexander Proelss (Munich: Verlag CH Beck , 2017), 1566 at 1571–1573.
Bartenstein (n 9), pp. 341–342. On its terms, Article 234 only applies to the EEZ, but it would be odd if the coastal State were to have more extensive powers in its EEZ than in its territorial sea. Bartenstein also notes the argument that Article 234 might be inapplicable to international straits (an issue if the Northwest Passage qualifies as an international strait). For further discussion see Franckx and Boone (n 108), pp. 1576–1577 and Jan Jakub Solski, “The ‘Due Regard’ of Article 234 of UNCLOS: Lessons from Regulating Innocent Passage in the Territorial Sea” ODIL 52(3) (2021): 398–418, at 402–405.
Bartenstein (n 9), pp. 342, 345.
Id., 342; Polar Code (n 2), Preambular para 5.
Bartenstein (n 9), p. 345; Solski (n 109), p. 417, argues in favour of using the jurisdictional balance applicable to the territorial sea under Article 24 of the LOSC “as a yardstick for the test of reasonableness in the exercise of the ‘due regard’ obligation.”
LOSC (n 1), Articles 94, 211(2).
M/V ‘Norstar’ (n 4).