Abstract
The number of vessels engaging in the dark market of trading sanctioned goods has been on the rise, especially after a new wave of sanctions is placed on a country. Dark ships are tankers that would prioritise deceptive practices to engage in illicit activities and present a serious threat to maritime security, safety and the marine environment of the region. This Article will explore the current international legal regime, as stipulated under the United Nations Convention on the Law of the Sea 1982 (unclos) and regulations of the International Maritime Organization (imo), as well as sanction regimes established by the international community in relation to dark ships. The Article proposes that measures taken under the unclos are unlikely to resolve this issue and, instead, solutions should be sought under the imo’s ambit to prevent and deter dark ships in the region.
1 Introduction
Camouflaging techniques to hide ships’ identities have been used since ancient times for military reasons. Historical records show that in the years 56–54 bc, during the Gallic Wars, Julius Caesar would send his scout ships with decks, hulls and sails painted entirely in bluish-green wax to blend in with the ocean when gathering intelligence along the coast of Britain.1 Nowadays, terms such as “dark ships,” “ghost ships,” or “ the phantom fleet” are commonly used to refer to a ship or vessel that uses concealing tactics to smuggle sanctioned goods. The term “dark ships” used throughout this Article will refer to ships of this kind.
The Western sanctions on Russia’s oil trade have led to the proliferation of dark ships and their increased presence in Southeast Asia. Aside from violating the relevant sanctions, dark ships pose a serious threat to maritime safety and present an environmental risk to the marine environment since most of these ships are outdated tankers that would likely prioritise camouflaging techniques over safety regulations. Moreover, to avoid coastal states’ jurisdiction and ports’ inspection, these vessels would usually engage in ship-to-ship transfer (‘sts’) operations outside the territorial water of coastal states, thus, posing a challenge to law enforcement. As the law of the sea is underpinned by the principle of the freedom of the high sea and the prerogative of flag states’ exclusive jurisdiction over their vessels, it is questionable whether the lex lata is sufficient to address this crisis.
So far, the literature has focused on how the rules of the United Nations Conventions on the Law of the Sea 1982 (‘unclos’) apply in the context of enforcing the United Nations Security Council’s (‘unsc’) resolution against sanctioned entities.2 The common narrative is that there appears to be a friction between the rules of maritime interdiction and states’ jurisdiction with regard to vessels in the Convention, which hinders the effectiveness of sanction measures against ships at sea, especially in the exclusive economic zone and the high sea, where prescriptive and enforcement jurisdiction rest on flag states. The legal lacuna is not easily filled, considering that the freedom of navigation remains the ethos of the law of the sea. Notably, despite being “the competent authority” in regulating international shipping – the role of the International Maritime Organization (‘imo’) in addressing dark ships has not been paid adequate attention.
This article will analyse the issue of dark ships under the law of the sea and the challenges it poses to the region. In doing so, first, it will establish that the use of dark ships has undermined commercial shipping’s safety and security and presented a potential threat to the marine environment. Secondly, it will analyse the law and regulations of the unclos, the imo and sanction regimes that are relevant to dark ships and argue that the current mechanism is insufficient to deal with the proliferation of the dark fleet. Finally, it will propose recommendations for states to prevent and deter the use of dark ships in commercial shipping.
2 The Risk of Dark Ships to Maritime Safety, Security and Marine Environment
Maritime safety and security are correlated terms but entail different notions. Maritime safety refers to preventing accidents at sea that can occur due to substandard shipping practices, unqualified crew or operator errors.3 Maritime security, as put by Klein, refers to “the protection of a state’s land and maritime territory, infrastructure, economic environment and society from certain harmful acts occurring at sea,” which include smuggling of sanctioned goods and conducting other illicit activities that endanger the marine environment and commercial shipping activity in the vicinity.4 Aside from hindering the effectiveness of the relevant sanctions put into place, the use of dark ships can cause detrimental consequences to the maritime safety, security and marine environment of coastal states.
First, dark ships can be a direct threat to the safety of maritime shipping. By turning off Automatic Identification System (‘ais’) or spoofing the location, dark ships broadcast false locations to other vessels in the vicinity and coastal authorities and, thus, increase the risk of accidents at sea. The risk is exacerbated when considering that most dark ships are large tankers that are very difficult to manoeuvre when facing a potential collision with another vessel, especially in bad weather. Such a hazard is not merely theoretical and was evident in an accident in the Bay of Bengal, where a tanker collided with a container ship in 2022.5 After investigations, it was found that the container’s ais was transmitting a signal three hours late, which gave a false impression of its navigational course and led to the collision. In 2017, a collision between the Panama-flagged chemical tanker Chemroad Mega and the Marshall Islands-flagged bulk carrier Sinica Graeca near the Horsburgh lighthouse led to the damage of the two ships and 200 tonnes of fuel oil dispersed into Singapore territorial waters.6 According to the accident report by the Singaporean authority, one of the main reasons leading to the collision was that the ais transmission of the tanker ceased before the accident occurred.
Second, dark ships present a challenge to maritime security since they often use identity-concealing tactics, such as flags of convenience (‘foc’) and vessel identity laundering, to engage in illicit activities. unclos requires that every ship sailing at sea shall fly a flag of a state where the ship is registered as its “nationality” (Articles 91 and 92). foc refers to a practice where a ship is registered in open registry states, which allows foreign-owned vessels with little or no connection to flag states to use their flag when traversing at sea.7 Moreover, black-listed ships can forge fraudulent documents to obtain a new imo registry number to disguise as another ship to evade sanctions.8
Dark ships can use foc and shell identities of ships registered in open-registry countries, such as Panama, the Dominican Republic, or Sierra Leone, to mask their true countries of origin, which are usually sanctioned countries. This practice challenges the international legal regime and reduces the effectiveness of sanction regimes.9 foc vessels have more leeway to engage in illicit activities that undermine maritime security without the fear of being held accountable for such acts.10 Identity-concealing poses a significant threat to maritime security, complicating commercial shipping identification and eroding stakeholder confidence in ship identification methods. This can lead to increased illicit activities at sea. Even if these ships are caught by coastal state authorities, investigating the true owner and seeking penalties from the flag state is a burdensome and challenging task.
Third, dark ships present a potential risk of environmental catastrophe at sea. The 2021 oil spill in Israel, which was described as its worst ecological disaster in decades and resulted in some 1,360 tons of tar balls washing ashore on the country’s coastline, was caused by a “mystery tanker” that was likely linked to trade in Iranian crude oil bound for Syria.11 In the aftermath of the G7’s sanction, Russia hastily amassed the “shadow fleet” consisting of hundreds of vintage tankers to carry out its oil trading business.12 Most of these tankers have been in operation for more than 15 years and are suffering from hull corrosion, with their systems and machinery prone to failure and breakdown. It is not difficult to speculate that these tankers have a high risk of causing serious environmental problems in case accidents, such as oil spilt or collisions, occur.
In circumventing the restrictions of sanction schemes, dark ships conducted sts outside the territorial sea of the country of destination to mask the oil’s origin and avoid port states’ entry ban.13 There have been reports of more than 40 super tankers anchored off the eastern coast of Malaysia and Singapore that acted as offshore floating storage units so smaller ships could transfer the sanctioned oil to buyers in Asia.14 Notably, most of these tankers are uninsured by reputable marine insurance companies, thus, limiting the responsibility to cover the cost of oil pollution or bunker spills in case an accident occurs in one of the world’s crucial oil trade routes.15 Recently, MV Pablo – a 26 years old Gabon-flagged Alframax tanker with a history of engaging in transporting sanctioned Iranian oil, exploded inside the exclusive economic zone (eez) of Malaysia that caused crew causalities and oil washed up on the shore of Indonesia.16 With opaque ownership and ship insurance, it remains unclear who is liable to move the wreck and pay for the cleaning-up operation that resulted from the ship incident.
In sum, dark ships present an inherent risk to maritime safety, security and the marine environment. The risk is exacerbated after the imposition of Western sanctions to curb the trade flow of Russian oil, which has inadvertently increased the number of dark ships that are ageing oil tankers at sea. As the fleet of dark ships is expanding after new waves of sanction, the potent question is whether the current legal framework is sufficient for coastal and port states to prevent and deter dark ships? The next part of this Article will revisit some of the rules and regulations of the unclos, imo and sanction regimes relevant to the matter.
3 The Regulating International Legal Framework
The unclos and imo regulations stipulate conditions regulating vessels’ registration, navigation and operation to ensure the safety and security of maritime navigation and the protection of the marine environment. Moreover, the interdiction of ships at sea is also affected by the applicable sanction regime put into place either by the unsc or individual countries.
First, the unclos requires every vessel to carry a flag, which indicates the nationality of the ship when exercising the freedom of navigation in the sea. Article 91 of unclos provides that states shall set up conditions to grant the nationality and the right to fly its flag to ship, and “there must exist a genuine link between the State and the ship.” Article 94 of the Convention mandates the flag state to “effectively exercise its jurisdiction and control in administrative, technical and social matters” concerning the ship when traversing at sea. Together, these provisions allow member states to lay out the conditions to grant ships their nationality and instruct flag states to ensure the ship’s seaworthiness and compliance with international regulations. Each country can set its law and regulations on the registration of ships, ranging from having a stringent requirement on domestic ownership and crews (closed registry) to allowing foreigners with no link to their country to fly the flag (open registry).17
Second, when the nationality or the flag of a ship is established, shipowners are required to register for an imo identification number. The imo identification scheme was introduced by the imo Assembly in 1987 to enhance “maritime safety and pollution prevention and to facilitate the prevention of maritime fraud”18 and was subsequently strengthened by other imo annexes and amendments.19 The imo Assembly has passed numerous resolutions to promote actions for the prevention of fraudulent registration and registries of ships that undermine UN sanctions.20 Particularly, the imo has included a module in its Global Integrated Shipping Information System (gisis)21 that provides information relating to ships’ particulars, including those flying under “false flag” or are under UN sanction and contact points of competent authorities and authorised organisations relating to imo matters in member states. This centralised repository is updated based on information provided by member states to the imo Secretariat and can be used to verify registry details provided by shipowners in the ship registration process.
Third, unclos provides that the International Maritime Organization (imo) shall regulate matters concerning maritime navigation.22 The imo Convention for the Safety of Life at Sea (solas) Regulation V/19.2.4 mandates most commercial ships23 to carry an ais transponder system, which enhances maritime safety by automatically providing a ship’s position, identification, navigational status, and other safety-related information to other ships and coastal states.24 The imo requires ais to be turned on at all times while the vessel is at sea unless the master deems it a safety or security risk or if security incidents are imminent.25 Accordingly, the act of a vessel turning off its ais transponder is reserved for exceptional circumstances, such as to hide the ship’s identity and location from pirates or armed robbery when transiting through waters prone to these crimes. It is advisable for the ship’s master to inform the competent authority, document the decision in the vessel’s logbook, and reactivate the ais when the threat subsides.26 Failing to do so could be interpreted as intentional deceptive shipping or “cloaking,” potentially leading to insurance claim issues and non-compliance with regulations in solas.27
Fourth, the unclos does not specifically regulate the operation of sts by ships; rather, such conduct is addressed under the International Convention for the Prevention of Pollution from Ships (marpol), specifically, Annex I, Chapter 8, as amended by Resolution mepc.186(59) on Prevention of Pollution during Transfer of Oil Cargo between Oil Tankers at Sea. Accordingly, under Regulation 42, when a tanker carries out sts operations within the territorial sea or the eez of a coastal state, the ship master needs to notify the coastal state not less than 48 hours in advance of the scheduled sts operations. The notification shall include information related to oil type and vessel identification, which may reveal the origin of the oil and the identity of the vessel’s owners. When vessels conduct sts operations inside the eez of coastal states, they may also be subjected to additional requirements under domestic law, such as obtaining prior authorisation, conducting environmental impact assessment, and having appropriate insurance. However, it has been argued that these regulations may be excessive in light of marpol, which only requires advance notification.28
In the context of oil pollution at sea, the imo established a framework for determining questions of liability and adequate compensation in cases of oil tankers through the International Convention on Civil Liability for Oil Pollution Damage 1992 (clc), the Fund Convention for Compensation for Oil Pollution Damage 1992 and its 2003 Protocol (fund). Accordingly, the Conventions placed a strict liability on the part of shipowners responsible for causing the oil pollution and ensured that sufficient funds were made available for the payment of such claims, either through the shipowners’ compulsory insurance or the fund covered by the Conventions.29 Notably, the Conventions do not cover oil pollution taking place on the high sea.
Fifth, there have not been many changes in the law of maritime interdiction over the last few decades. As succinctly summarised by Guilfoyle, a state’s public vessels may interdict a foreign ship on the high seas in one of the three limited circumstances: (i) where the vessel is without nationality; (ii) where the flag states have given their consents, or (iii) where “a permissive rule of general international law allows the interdiction.”30 The first two situations stipulate that the foreign authority can board a ship with the express permission of the flag state or if the vessel is stateless (does not fly any flag or switch different flags). Regarding the third circumstance, the unclos provided limited grounds for state authority to board, inspect or seize another state’s vessels in areas outside of its sovereignty. Specifically, inside territorial water, coastal authorities could restrict the right of innocent passage of vessels if they engage in activities that are “prejudicial to the peace, good order or security of the coastal State” (Article 19). Within the contiguous zone, a foreign vessel can be boarded and inspected based on suspicion of violating a coastal state’s customs, fiscal, immigration or sanitary laws (Article 33). A state can interdict a foreign vessel as the result of a lawful hot pursuit (Article 111) or enforce living resource laws and regulations in the eez (Article 73). In the high sea, the Convention recognises the right to board vessels engaged in piracy (Article 105). In all of these instances, the flag state, if found, shall be promptly notified.
State authorities can interdict a vessel if it falls under a relevant sanction regime outside the Convention. Sanction regimes can be categorised as those issued by the United Nations Security Council (unsc) under Article vii of the UN Charter and unilateral sanctions. Under the unsc regime, states can board and inspect vessels within their jurisdictional waters or war zones if they have reasonable grounds to suspect the presence of prohibited goods.31 Typically, the consent of the flag state is required for inspections on the high seas or at designated ports. However, there are exceptional cases, such as Libya32 and dprk,33 where boarding can occur without flag state consent. Unilateral sanctions, such as those initiated by the G7 against Russia, usually only target shipping services34 and do not affect the rule of maritime interdiction as stipulated under the unclos.
In sum, the current regulatory framework, as stipulated in the unclos and imo’s regulations, imposes certain restrictions and standards for registering, navigating, and operating commercial vessels at sea to prevent deceptive shipping practices. In the case of dark ships, sanction regimes provide an additional layer of enforcement measures. The legal sedimentation was the result of balancing the interests of shipping nations, who favour lenient requirements on ship registration and freedom of the sea, and port and coastal states, who have interests in promoting safe and secured shipping practices and protecting the marine environment. However, this equilibrium is predicated upon shipowners’ compliance and is shattered when they deliberately evade the rules and regulations to engage in illicit activities. The following section identifies challenges hindering the collective effort to counter threats from dark ships to commercial shipping.
4 The Challenges in Regulating Dark Ships
The raison d’être of a dark ship is to hide its identity from law enforcement authorities to engage in illicit activities at sea, which mostly involve sts operations to smuggle sanctioned oil. Currently, four main challenges hinder international efforts in curbing the use of dark ships, namely: (i) the prevalent use of foc of open registry states; (ii) the loopholes in vessels registration, (iii) the prerogative of exclusive jurisdiction of flag states over the conduct of their vessels at sea and (iv) the limitation of the rule of maritime interdiction. These issues are not novel; however, they have not been adequately addressed by the current regulatory framework established by the unclos and the imo’s Conventions in combating dark ships.
First, the issue of foc in maritime shipping has long been discussed extensively by legal scholars and political pundits.35 Generally, foc is not per se prohibited by international law since it can be used for purely economic and administrative reasons when shipowners seek a country that can offer the lowest administrative costs, the least regulations, and prompt service when registering their ships. However, it is to be condemned when foc is used to engage in felonious activities with the prospect that the flag state will be unwilling or unable to enforce its law on the ship when it operates at sea. Here, the concept of “a genuine link” and flag state duties often arise when discussing foc.
Attempts were made by the International Law Commission (‘ilc’) in 1955 to shed light on the requirements of “a genuine link”, such as the vessels need to “be a property of the State concerned” or the flag state must have a certain relationship with the vessels seeking to fly its flag in terms of nationality of the crews or economic connection.36 However, these requirements were not incorporated into the 1958 Convention on the High Seas and the unclos 1982. Later efforts by the imo to regulate ship nationality have not been fruitful. The 1986 United Nations Convention for Registration of Ships, which helps define elements such as genuine link, ownership, management, registration, and accountability of flag states for ship registration, is only accepted by a limited number of states and far from the requirement for its entry into force.37
Moreover, a state cannot protest the ship’s registration on the basis of a lack of “a genuine link” between the ship and the flag state. In M/V Saiga,38 a case concerning the seizure of a Saint Vincent’s oil tanker by Guinean authorities, the Tribunal ruled that “Article 91 leaves to each State exclusive jurisdiction over the granting of its nationality to ships” and does not “establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.”39 The ruling of the Tribunal on this matter is reaffirmed in a later case – M/V Virginia.40 Consequently, a state cannot refuse to recognise the right of a ship to fly a flag of a flag state or challenge the conditions to grant nationality. This uncontested privilege can lead to due diligence issues on the flag states’ part that may make them overlook or be unwilling to verify the history or track record of vessels seeking their nationality.
Secondly, black-listed ships can launder their identity by exploiting loopholes in vessel registration.41 When engaging in international commerce, each ship must carry an unique number, which remains unchanged during the entire life of the ship, even in case of a change of flag, name, or ownership. The registration and assignment of imo identification numbers are done through a sole service provider (S&P Global Market Intelligence), who will verify the information submitted by ship operators. Notably, the registration of a new imo identification number does not require an in-person vessel inspection by the S&P authorities or photographic evidence of the ship in the application process. As such, perpetrators can exploit the loopholes in the imo’s cataloguing and management framework by obtaining new imo identification numbers and names by assuming the identity of other “clean ships” under apparently false pretences to re-engage in international commerce.42 Notably, in these cases, the imo was unable to verify the authenticity of information submitted by shipowners in the application process for new imo identification numbers, which may lead to a rise of fraudulent registration with little or no oversight.
Thirdly, the effort to identify and prosecute dark ships is hindered by the prerogative of exclusive jurisdiction of flag states to prescribe and enforce laws, rules, or regulations over the conduct of vessels flying their flags. As elaborated by the Arbitral Tribunal in Enrica Lexie, a case involving an incident concerning an Italian-flagged oil tanker and its crew members in India’s contiguous zone, the principle of exclusive flag State jurisdiction “prohibits not only the exercise of enforcement jurisdiction on the high seas by States other than the flag State but also the extension of their prescriptive jurisdiction to lawful activities conducted by foreign ships on the high seas.”43
This rule also applies to sts operations by vessels in areas seaward of territorial water of coastal states. Neither the unclos nor imo regulations delegate any power to the coastal states to deny or interdict sts operations in the eez, except when there are “clear grounds” that such activity will result “in a substantial discharge causing or threatening significant pollution of the marine environment.”44 In the high sea, ships engaging in sts do not have to notify any state and, in the event of a violation, such as causing an oil spill as a result of misconduct, flag states will be the primary actor to investigate, commence proceedings, and impose penalties against the responsible parties.45 Consequently, the rule of exclusive flag states’ jurisdiction can be abused by dark ships to engage in illicit activities. Even when there is clear evidence that a vessel is a dark ship, there is little coastal or port states can do to enforce their laws and regulations unless the vessel comes into territorial water or arrives in ports.
Fourth, the rule of maritime interdiction, which has remained unchanged for the past few decades, also poses a challenge in enforcing measures against a vessel’s spoofing or turning off of its ais in areas outside the territorial water of the coastal state. Both the unclos and sanction regimes, even those established under Article vii UN Charter by the unsc, require flag state consent for any particular enforcement action against vessels flying their flags in the high seas and eez, areas where illicit activities are likely taking place. In case a ship is spotted manipulating its ais signal, seeking flag state consent for boarding and seizing the sanctioned goods can be time-consuming, if not pointless, since flag states under sanctions, such as the dprk or Russia, will probably not authorise foreign interdiction, and open registry states will likely not exercise effective flag state jurisdiction. If dark ships cause collisions at sea as a result of their misconduct, holding the shipowners liable for damage would be difficult.46 With uncooperative flag states, it is burdensome to enforce penalties on the perpetrators.
5 The Proposed Way Forward
This part will analyse measures that can be considered to strengthen the legal regime in preventing and suppressing the negative impacts of dark ships. It will argue that the endeavour to address this issue at the unclos is a hopeless enterprise and contend that measures should be consolidated at the imo to counter risks manifesting from bad shipping practices.
5.1 The Hurdles of Addressing the Dark Ship Issue through the unclos Mechanism
The most ambitious and far-fetched measure would be to amend the flag states’ exclusive jurisdiction over their vessels under Article 92 unclos. This prerogative bars coastal and port states from exercising their laws and enforcement measures on board a flagged vessel save for having the consent of the flag state. Obtaining such consent might be difficult when the flag state is not cooperative or has not appointed a designated authority to promptly and effectively make such a decision. In the view of certain countries, such as the US, the revisit of the flag state jurisdiction to allow for boarding and inspection of vessels in cases of blatant violation without the explicit authorisation of the flag state would enable maritime interdiction to work more effectively and efficiently to apprehend the illicit acts.47
Additionally, the cohesion between flag states and their vessels could be strengthened by shedding light on the requirements of a “genuine link” for vessel nationality in Article 91 of the unclos. The use of foc by shipowners relies on the uncontested right of flag states to prescribe the conditions for granting nationality to ships under its domestic laws and regulations. In this regard, a commonly raised question is whether the genuine link requirement is considered post-registration of a ship, given that Article 91 mandates an existence of “a genuine link between the State and the ship.” Put differently, should there be any room for a state “to challenge the absence of proper jurisdiction and control by the flag State over the ship” on the basis of the flag state’s failure to maintain the genuine link as stipulated under Article 91 of the Convention?48 The clarification of this question in the positive, either by the unclos member states or through an advisory opinion submitted to the itlos, would encourage open registry flag states to exercise proper jurisdiction and control over their ships to ensure that their vessels do not engage in illicit activities.
Nevertheless, the effort to address the dark ship issue at the unclos level would have to overcome certain hurdles. The cardinal rule that only the flag state has jurisdiction to prescribe laws, rules or regulations over the conduct of vessels flying their flags, as well as to enforce such laws, rules or regulations over persons on board their vessels, runs deep in the law of the sea discourse. As put by the Annex vii Tribunal in Enrica Lexie, “the principle of exclusive flag State jurisdiction has been recognised as an essential adjunct to the principle of the freedom of the seas or a corollary of the open and free status of the high seas.”49 This principle is also adhered to in cases of unsc sanctions, where the consent of flag states must be sought in cases of interdiction of vessels on the high seas.50 Moreover, attempts to limit the discretion of prospective flag states in granting nationality to ships, such as the introduction of substantive criteria in the ill-fated 1986 Convention on Ship Registration by the imo or challenging the genuine link requirement before international courts and tribunals,51 have not been fruitful. As such, the revision of such a fundamental issue would require the amendment of Article 92 and possibly a complete overhaul of other relevant provisions concerning the rights and duties of flag states in the unclos, including Article 91 – a herculean task that is likely, not feasible since it requires the consensus of member states on sensitive maritime issues.52
5.2 The Role of the imo in Combating Dark Ships
As the competent authority in regulating shipping practices, the imo could be a viable venue to consolidate efforts in addressing the dark ship issue. Over the course of its existence, there have been nearly fifty legally binding conventions, protocols, and regulatory codes and over a thousand non-mandatory guidelines, recommendations, and information documents adopted under the auspices of the imo that cover all aspects of international shipping under the three pillars of maritime safety and security, prevention of marine pollution, and liability and compensation.53 Thus, the imo could play a crucial role in deterring dark ships from undermining the safety and security of commercial shipping.
The discussion of dark ships before the imo predominantly focuses on addressing the issue at the ship’s registration phase, which includes establishing a reporting system on ships flying under “false flag” or under UN sanctions in the gsis and providing guidelines on transfer of ships between states.54 Insofar, there has been no discussion on a holistic approach to address the issue of dark ships. This Article suggests that further measures could be envisaged under the imo’s framework to address the conduct of dark ships in the post-registration phase.
First, at the conceptual level, the imo should consider expanding the scope of the definition of “phantom ships” used in their documents. In one of its earliest resolutions using this terminology in 2001, the imo Assembly referred to phantom ships as those “that have been registered on the basis of false or inaccurate information.”55 This definition was constructed to address certain member states’ concerns that some vessels have fraudulently used their flags. Consequently, these member states could not obtain legitimate revenue from registries and when the ships engaged in unlawful activities, it would harm the reputation of these states as flag states.
While fraudulent registration of ships remains a serious problem, the operation of dark ships has evolved from individual gains to organised operations to smuggle sanctioned goods using deceptive practices. As such, imo member states should recognise the current modus operandi of dark ships and include notions, such as using substandard tankers, spoofing or turning off ais in an unjustifiable manner, or conducting sts with the objective of smuggling sanctioned oil, in its definition of “phantom ships” to orientate future discussion and prospective measures.
Second, regarding ais manipulation, a notification framework can be envisioned either under the solas or the current gisis information system so that competent authorities of member states may raise an alert when spotting a vessel exhibits signs that it might be a dark ship, such as turning off ais in safe water, masking its flag and physical appearance, anchoring idle offshore to form a sts hub at sea. Dark ships can be unmasked using sophisticated satellite technology, which may not be available to all states. Information sharing, thus, plays an important role in tipping-off dark ships’ whereabouts to the competent authorities in the vicinity for appropriate measures. Furthermore, appointments of designated authorities in each member state to respond to requests from other states, such as to confirm nationality or flag registry or to authorise ship boarding, can also be a viable proposal to promote prompt actions when discovering a vessel engaging in suspicious activity. Such a cooperative mechanism would provide competent authorities with advance information and the whereabouts of the potential dark ship so that appropriate measures can be implemented in a timely manner.
Third, imo member states could develop a comprehensive plan to address situations where dark ships anchor outside states’ jurisdictional waters to form sts hubs to smuggle sanctioned goods. The current notification regulation under marpol only applies to sts operations inside the eez of coastal states and, thus, cannot address situations where dark ships deliberately evade the reporting obligation by anchoring on the high sea to perform sts operations. Additionally, if oil pollution or accidents result from such transfer, it would be difficult to identify and hold the polluter liable for the environmental damage. The lack of regulation over activities on the high seas and the emphasis on flag states’ exclusive jurisdiction over their vessels are the main hindrances to policing sts performed by aging tankers with little regard for the safety of the operation.
At the time of writing this Article, a draft Assembly resolution on this matter has been proposed by Spain for consideration at the imo Assembly meeting (27 November – December 2023).56 The proposal requires vessels to notify their flag states and adhere to safety requirements in imo Convention when conducting sts on the high seas. It also suggests port states increase inspection of ships that turn off their ais when arriving at ports. However, this proposal has certain limitations. The requirement for vessels engaging in sts on the high sea to notify flag states will likely have very little effect since most of these flag states of dark ships are either countries under sanctions or open registry states that will not be keen on monitoring and enforcing safety and liability regulations on their tankers.
The call for enhanced inspection of dark ships at ports would be unlikely to resolve the issue. As most dark ships are vintage vessels and do not have adequate marine insurance, they will not go into unfriendly ports out of fear of inspection or potential prosecution. Port states may have some power over foreign-flagged vessels that arrive in port, especially when it comes to denying port entry for sanctioned goods or investigating and instituting proceedings against vessel-source pollution (Article 218 unclos). However, such limited jurisdiction is only effective if all ports are under the same standards to enforce similar rules in unison.57 Otherwise, dark ships and their counterparts can seek a safe harbour in another port that can give them a pass.
Consequently, in addressing unlawful sts, this Article suggests that attention should be focused on enhancing the surveillance of coastal states and inspection of port states in the region against other vessels that are accomplices to dark ships in their sts operations. Dark ships often require domestic accomplices, such as smaller vessels or other land-based operators, to assist with their illicit activities. In this sense, deterrent measures, such as denial of port entry or enhanced inspection of cargoes, could be envisaged against vessels that come into the territorial water of coastal states or make a call to port after engaging in sts operations with dark ships.
When sts accidents occur and lead to transboundary oil spills, coastal and port states will be the most affected. As such, they would be keen on taking action to prevent these activities from occurring within their waters. Moreover, when these accomplices enter territorial water or ports, coastal and port states have the authority, under the unclos, to interdict these vessels, whereas they lack the means to interdict dark ships operating in the eez and high sea under the exclusive jurisdiction of their flag states.
6 Conclusion
Speculations converge on the point that despite sanctions, the trade in sanctioned goods by the dark fleet of dark ships will continue to be on the rise. As the South China Sea is a vital artery holding up more than 30% of global maritime crude oil trade, its coastal states are deeply affected by this phenomenon. The tendency to ban Russian oil in Western countries would mean that there will be an increased presence of old and ageing oil tankers in the South China Sea, especially near key transit points such as the Strait of Malacca, to transport oil to Asian buyers. Admittedly, in the current political atmosphere, it could be too ambitious to consolidate international efforts to fix primordial lacunae in the unclos, such as the flag of convenience, ship nationality, the prerogative of flag state exclusive jurisdiction and interdiction of vessels.
It is, nevertheless, important to recognise that dark ships represent a risk to maritime safety and security in the region. When an aged tanker spoofs its ais or engages in sts operation near the regional choke point for commercial shipping, such as the Strait of Malacca, it represents a major security and safety threat to the region. An accident involving dark ships, such as a collision at sea or oil spill as a result of sts operations, would be detrimental to the environment and difficult to hold polluters accountable. In this sense, the imo, as an international organisation with a robust mechanism of formulating rules and regulations to ensure maritime safety, security, and marine environment protection, could play a key role in addressing dark ships. As such, member states should focus on strengthening early notification and response mechanisms to identify dark ships and, simultaneously, be ready to inspect suspicious vessels that engage in operations with dark ships when the former enter jurisdictional water or enter ports. The region certainly does not need another Torrey Canyon accident to consolidate common efforts against unsafe shipping practices.
L Casson, Ships and Seamanship in the Ancient World (Johns Hopkins University Press, Baltimore and London, 1995), 235.
See M Frostad, ‘United Nations Authorized Embargos and Maritime Interdiction: A Special Focus on Somalia’ in Gemma Andreone (Ed.), The Future of the Law of the Sea (Springer International Publishing, Cham, 2017); J Kraska, Maritime Interdiction of North Korean Ships under UN Sanctions, 37 Berkeley Journal of International Law 369 (2019); R Pedrozo, dprk Maritime Sanctions Enforcement, 96 International Law Studies 98 (2020).
R Balkin, ‘The imo and Global Ocean Governance: Past, Present, and Future’ in David Joseph Attard and others (Eds.), The imli Treatise on Global Ocean Governance (Oxford University Press, Oxford, 2018), 10–11.
N Klein, ‘Maritime Security’ in Donald Rothwell and others (Eds.), The Oxford Handbook of the Law of the Sea (Oxford University Press, Oxford, 2015), 582.
M Voytenko, Tanker and Container Ship Collision, Both Damaged, Bay of Bengal, Maritime Bulletin, 15 April 202.
Transport Safety Investigation Bureau Singapore, Collision between Chemroad Mega and Sinica Graeca off Horsburgh Lighthouse Singapore Territorial Waters on 17 August 2017 (Ministry of Transport 2019) mib/mai/cas.020.
D König and T René Salomon, ‘Flags of Convenience’ in Rüdiger Wolfrum and Anne Peters (Eds.), Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford, 2022).
A Boling and others, Unmasked: Vessel Identity Laundering and North Korea’s Maritime Sanctions Evasion, c4ads (2021).
J Kraska, Maritime Interdiction of North Korean Ships under UN Sanctions, 37 Berkeley Journal of International Law 369, 370–71 (2019); R Pedrozo, dprk Maritime Sanctions Enforcement, 96 International Law Studies 98, 99 (2020).
lfe Goldie, Environmental Catastrophes and Flags of Convenience – Does the Present Law Pose Special Liability Issues?, 3 Pace International Law Review 63, 86–90 (1991); E Powell, Taming the Beast: How the International Legal Regime Creates and Contains Flags of Convenience, 19 Annual Survey of International & Comparative Law 263, 278–79 (2013).
D Osler, Israel Mystery Spill Was “Tank Washing Not Terrorism”, Lloyd’s List Intelligence (6 April 2022). There are reports of incidents involving sts between sanctioned ships that led to lives lost. See D Khalmetov and A Ershov, Ship in Deadly Black Sea Blaze Was Turned Away from Port over Sanctions, Reuter, 23 January 2019.
D Sheppard and C Cook, Russia Assembles “Shadow Fleet” of Tankers to Help Blunt Oil Sanctions, Financial Times, 3 December 2022.
J Wittels, Russia Sets Up Oil-Transfer Site in Baltic Sea to Ease Tanker Chaos, Bloomberg, 15 December 2022.
See Lloyd’s List Intelligence, Russia, Sanctions, and Ship-To-Ship Scenarios, available at https://www.lloydslistintelligence.com/knowledge-hub/data-storytelling/russia-sanctions-and-ship-to-ship-scenarios.
L Julian, Will Your Claim against a Russian Oil Tanker Be Paid?, The Washington Post, 14 November 2022.
S Chambers, Pablo Explosion a Warning Sign of Worse to Come, Splash247, 8 May 2023.
N Ready, ‘Nationality, Registration, and Ownership of Ships’ in David Joseph Attard and others (eds), The imli Manual on International Maritime Law (Oxford University Press, Oxford, 2014).
Resolution A.600(15) adopted by the imo Assembly, 15th Session, 19 November 1987.
For e.g., Resolution A.1117(30) adopted by the imo Assembly, 15th Session, 6 December 2017 extends the imo ship identification number scheme’s scope application to small ships, including fishing vessels; Circular Letter No.1142 adopted by the mpec, 20 December 2004 requires all documents carried on board a ship to be marked with imo identification number; solas Regulation xi-1/3 requires imo identification numbers to be permanently marked in a visible place on a ship.
See Resolution A.923(22) adopted by the imo Assembly, 22nd Session, 22 January 2002 on measures to prevent the registration of “phantom” ships; Resolution A.1142(31) adopted by the imo Assembly, 31st Session, 10 January 2020 on measures to prevent the fraudulent registration and fraudulent registries of ships; Resolution msc.160(78) adopted by the msc, 20 May 2004 on the adoption of the imo unique company and registered owner identification number scheme.
See imo Secretariat, Global Integrated Shipping Information System, available at https://gisis.imo.org/Public/Default.aspx.
See e.g., Article 22(3); Article 41(5); Article 53(9) unclos. See also M Benosa and R Beckman, cil Guide to the imo (National University of Singapore, Singapore, 2022), 44.
Except for leisure craft, fishing boats and warships, and some coastal shore stations including Vessel Traffic Service (vts). See Resolution A.1106(29) adopted by the imo Assembly, 29th Session, 2 December 2015.
M Murphy, ‘Lifeline or Pipedream? Origins, Purposes, and Benefits of Automatic Identification System, Long-Range Identification and Tracking, and Maritime Domain Awareness’ in Rupert Herbert-Burns and others (Eds.), Lloyd’s miu Handbook of Maritime Security (crc Press; London, 2009), 16–17.
Resolution A.1106(29) adopted by the imo Assembly, 29th Session, 2 December 2015, 8.
Ibid. at para. 22.
See e.g., Rule 26 (Warranties, Classification and Statutory Requirements) of the Maritime Mutual Club Rule Book; Rule 30 (Liabilities Excluded if as a Result of Wilful Misconduct) of the Shipowners’ Club Rules.
Y Ishii, ‘Unconventional Lawmaking and International Cooperation on Illegal Bunkering at Sea’ in Natalie Klein (Ed.), Unconventional Lawmaking in the Law of the Sea (Oxford University Press, Oxford, 2022), 83–4.
R Balkin, ‘The imo and Global Ocean Governance: Past, Present, and Future’ in David Joseph Attard and others (Eds.), The imli Treatise on Global Ocean Governance (Oxford University Press, Oxford, 2018), 15–19.
D Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, Cambridge, 2009), 339.
See eg. Resolution 1929 adopted by the Security Council, 6335th Meeting, 9 June 2010 (on Iran), para. 15; Resolution 2375 adopted by the Security Council, 8042nd meeting, 11 September 2017 (on dprk), paras. 7. For an overview of the history of unsc authorized maritime interdiction up to 2016, See M Frostad, ‘United Nations Authorized Embargos and Maritime Interdiction: A Special Focus on Somalia’ in Gemma Andreone (Ed), The Future of the Law of the Sea (Springer International Publishing, Cham, 2017), 214–17.
Resolution 1973 adopted by the Security Council, 6498th Meeting, 17 March 2011, para. 13. The unsc authorised member states to carry out inspections on the high seas of vessels bound to or from Libya if they have reasonable grounds to suspect that the vessels carrying sanctioned goods.
Resolution 2375 adopted by the Security Council, 8042nd Meeting, 11 September 2017, paras. 8–9. The UN Sanction Committee can require the flag state to “de-flag” the vessel, making it becomes a stateless ship.
See Skuld, Insight: Russia Sanctions, available at https://www.skuld.com/topics/legal/sanctions/russia/insight-russia-sanctions/.
R Barnes, ‘Flag States’ in Donald Rothwell and others (Eds.), The Oxford Handbook of the Law of the Sea (Oxford University Press, Oxford, 2015); Walker GK (Ed.), Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention (Martinus Nijhoff Publishers, Leiden, 2012), 193; W McLeod, The Flags of Convenience Problem, 16 South Carolina Law Review 409 (1964).
Article 5 on Right to fly a Flag of Chapter ii on Regime of the High Seas in Report of the International Law Commission to the General Assembly in Yearbook of the International Law Commission, Vol. ii, A/2934 (United Nations, New York, 1955), 21.
So far, the Convention has only been ratified by 15 states where Article 19 of the 1986 Convention requires the membership of at least 40 states with a combined tonnage amounts to at least 25% of world tonnage for the Convention to enter into force. See Status of the United Nations Convention on Conditions for Registration of Ships, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XII-7&chapter=12&clang=_en.
The M/V ‘Saiga’ case (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment of 1 July 1999, International Tribunal for the Law of the Sea.
Ibid. at paras. 63 and 83.
The M/V ‘Virginia G’ (Panama v Guinea-Bissau) Judgment of 14 April 2014, International Tribunal for the Law of the Sea.
S Chambers, New Report Highlights the Rise of Vessel Identity Laundering, Splash 247, 24 September 2021); J Basquill, Vessel Identity Laundering: An Emerging Threat to Maritime Trade, Global Trade Review, 10 September 2021.
See A Boling and others, Unmasked: Vessel Identity Laundering and North Korea’s Maritime Sanctions Evasion, c4ads (2021).
‘Enrica Lexie’ Incident (Italy v. India), Award, 2020, paras. 524, 527 citing to judgments of itlos in the M/V “Norstar” Case (Panama v. Italy), Judgment, 2019, para. 225.
Article 220 unclos (Enforcement by coastal States).
Y Takei, Assessing Flag State Performance in Legal Terms: Clarifications of the Margin of Discretion, 28 The International Journal of Marine and Coastal Law 97, 101–2 (2013); Barnes R, ‘Flag States’ in Donald Rothwell and others (Eds.), The Oxford Handbook of the Law of the Sea (Oxford University Press, Oxford, 2015), 314.
L Julian, Will Your Claim against a Russian Oil Tanker Be Paid?, The Washington Post, 14 November 2022.
R Pedrozo, dprk Maritime Sanctions Enforcement, 96 International Law Studies 98, 114–15 (2020).
The M/V ‘Virginia G’ (Panama v Guinea-Bissau), Dissenting Opinion of Judge Jesus, 2014, para. 50.
Enrica Lexie’ Incident (Italy v. India), Award, 2020, para 524 (footnotes and quotations omitted). See also The M/V ‘Saiga’ case (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment, 1999, paras. 63 and 83; The M/V “Norstar” Case (Panama v. Italy), Judgment, 2019, para. 225.
See eg., Resolution 2375 (2017) adopted by the Security Council, 8042nd meeting, 11 September 2017, paras. 7, 8: “Calls upon all Member States to inspect vessels with the consent of the flag State, on the high seas, if they have information that provides reasonable grounds to believe that the cargo of such vessels contains items the supply, sale, transfer or export of which is prohibited.”
See The M/V ‘Saiga’ case (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment, 1999, para. 83. See also Treves T, Flags of Convenience Before the Law of the Sea Tribunal, 6 San Diego International Law Journal 179 (2004).
C Whomersley, How to Amend unclos and Why It Has Never Been Done 9 The Korean Journal of International and Comparative Law 72 (2021).
See imo, Publications, available at https://www.imo.org/en/publications/pages/home.aspx. For the detailed discussion of the imo’s rule making process, See Benosa M and Beckman R, cil Guide to the imo (National University of Singapore, Singapore, 2022), 32–41.
imo Legal Committee, ‘Proposal to establish a database of fraudulent registration and fraudulent registries of ships in gisis submitted by China’, leg 110/6/2, 16 January 2023; imo Legal Committee, ‘The wrongful exploitation of the imo identification number schemes submitted by Georgia and United Arab Emirates’, leg 110/6/3, 20 January 2023.
imo Assembly, ‘Resolution A.923(22), Measures to Prevent the Registration of “Phantom” Ships’, 22 January 2002’.
See imo, Summary of the Meeting of the Legal Committee 110th Session, available at https://www.imo.org/en/MediaCentre/MeetingSummaries/Pages/Legal-Committee%2c-110th-session.aspx.
J Kraska, Maritime Interdiction of North Korean Ships under UN Sanctions, 37 Berkeley Journal of International Law 369, 375 (2019).