International Law of the Sea : Current Trends and Controversial Issues 9789460948305, 9789462360815

Citation preview

edited by angela del vecchio

edited by angela del vecchio

international law of the sea

international law of the sea

current trends and controversial issues

current trends and controversial issues

In the last few decades, the law of the sea has been affected not only by the processes of globalization that have changed the key interests of the international community but also by natunew opportunities to exploit marine resources and to produce energy and which make the sea in itself a resource, have contributed to a further development of the law of the sea. This book analyses those areas of the law of the sea in which these transformations taking place seem to be more significant: migration by sea, the security of navigation and the fight against piracy, safety of navigation, protection of maritime labour, the legal framework governing the polar regions and some special issues relating to the harnessing of marine resources. This book offers a contribution to the study of the evolution of the law of the sea and will not fail to be of interest to academics in the field.

international law of the sea

ral phenomena like climate change. In addition, technological advances that have opened up

edited by a ngela del vecch io

[WT] EIP Omslag International Law of the Sea-1.indd 2-5

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International Law of the Sea

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I n t e r n at i o n a l L aw of the Sea Current Trends and Controversial Issues

A ngel a D el Vec chio (E d.)

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Published, sold and distributed by Eleven International Publishing P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel: 1-800-944-6190 (toll-free) Fax: +1-503-280-8832 [email protected] www.isbs.com Eleven International Publishing is an imprint of Boom uitgevers Den Haag.

ISBN 978-94-6236-081-5 ISBN 978-94-6094-830-5 (E-book) © 2014 Angela Del Vecchio | Eleven International Publishing

This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands

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Table of Contents Introduction1 Law of the Sea and New Interests of the International Community Angela Del Vecchio I Migration by Sea

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Irregular Migration and Safeguard of Life at Sea. International Rules and Recent Developments in the Mediterranean Sea Marcello Di Filippo

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2 The Action of Greece and Spain against Irregular Migration by Sea Simone Marinai

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3 The Struggle against Irregular Migration by Sea at the Canary Islands Víctor Luis Gutiérrez Castillo

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The Patrolling of the European Union’s External Maritime Border: Preventing the Rule of Law from Getting Lost at Sea Jorrit J. Rijpma

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II Security of Navigation and Struggle against Piracy

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5 International Security and Powers of Enforcement at Sea Umberto Leanza

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International Terrorism at Sea between Maritime Safety and National Security. From the 1988 SUA Convention to the 2005 SUA Protocol Ida Caracciolo 7

Piracy and Somalia: The Few Advantages and the Many Drawbacks of International Cooperation Francesca Graziani 8

The Prevention and Repression of Piracy in Somalia in the Policy of the European Union Lina Panella

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 9 The Issue of Jurisdiction in Piracy Cases Giuseppe Stuppia Protecting Merchant Ships by Means of Vessel Protection Detachment (VPD) and Privately Contracted Armed Security Personnel (PCASP): The Italian Experience Fabio Caffio

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III Safety of Navigation

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11 Port State Control Elda Turco Bulgherini

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12 Coastal State Competences Regarding Safety of Maritime Navigation Roberto Virzo

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13 Civil Liability, Shipping and Marine Pollution: A Critical Appraisal Daniele Gallo

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The Mechanism of Funds for the Compensation of Maritime Environmental Damage Michele M. Comenale Pinto

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IV Marine Resources

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15 Microalgae Use for Energy Purposes Aldo Imerito

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The Exploitation of Offshore Transboundary Marine Resources or those in Disputed Areas: Joint Development Agreements Maria Rosaria Mauro

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17 International Law and the Protection of Fishers317 Irini Papanicolopulu 18

Developments in Maritime Labour between International Law and EU Law Pietro Pustorino

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 V International Law of the Sea and Polar Regions 19

Global Warming and the Arctic Ocean: Challenges for International Law Maria Clelia Ciciriello 20 Crossed Destinies: Polar Regions and International Law Fiammetta Borgia The Last Frontier of the International Protection of Human Rights at the Outermost Bounds of the Earth: Polar Activities between Cultural and Biological Diversity Federica Mucci

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The 2010 Treaty between Norway and the Russian Federation on Maritime Delimitations: Considerations about the Application of the Law of the Sea Aldo Amirante

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Environmental Liability in Antarctica: The 2005 Annex VI to the Madrid Protocol and the Italian Legal System Giulia Nicchia

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Index 431

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Introduction Law of the Sea and New Interests of the International Community Angela Del Vecchio* Since the entry into force of the United Nations Convention on the Law of the Sea (UNCLOS), it has become evident that the intent to establish a legal order for the seas and oceans that would facilitate international communication, the peaceful use of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources and the protection and preservation of the marine environment has seemingly not been fully achieved. The law of the sea has been very much affected not only by the processes of globalization that have changed the key interests of the international community but also by natural phenomena such as climate change that have made areas of the sea previously covered by ice more accessible and by increased violence at sea in a form not envisioned by UNCLOS. Moreover, those who drafted UNCLOS could not have foreseen the increase in the illegal trafficking of immigrants, new forms of piracy or the frequent threats of terrorist attacks at sea or in ports. Neither could they have imagined the technological advances that have opened up new opportunities to exploit marine resources and to produce energy and that make the sea in itself a resource. Therefore, it was felt worthwhile to dwell on those aspects of the law of the sea to identify, where possible, various solutions to the new problems. To this end, research on Law of the Sea: New Interests of the International Community was undertaken and sponsored by five Italian universities, namely, LUISS Guido Carli, ‘Tor Vergata’ University of Rome, University of Pisa, Second University of Naples and University of Sannio, with funding provided by the Ministry of Education, University and Research (MIUR). Bearing in mind that not all areas of the law of the sea have been affected in equal measure by the above-mentioned developments, the research concentrated only on the sectors in which the transformations taking place seem to be more significant: migration by sea; the security of navigation and the fight against piracy, safety of navigation, protection of maritime labour, the legal framework governing the polar regions and some special issues relating to the harnessing of marine resources. It is those themes that are the focus of this collection of works, divided into five parts. The first part of the book concerns immigration by sea. Indeed, during the last two decades the cases of illegal immigration by sea have increased both in the Mediterranean and in other geographic areas. This has involved both an increasing militarization of migration *

Full Professor of European Union Law, LUISS Guido Carli University, Rome.

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Introduction controls and the need to strengthen cooperation among states, and to that end several multilateral and bilateral agreements have been concluded and new rules introduced in the domestic law of the countries concerned. In relation to the special problems posed by the illegal trafficking of migrants in Southern Europe, that phenomenon and its consequences in the Mediterranean area are analysed, and also studied in particular are the policies adopted by Italy and Malta (Di Filippo), Greece and Spain (Marinai) and the Canary Islands (Gutiérrez Castillo). To complete the picture, the activities of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) in the EU’s fight against illegal immigration are examined too (Rijpma). But the traffic of illegal migrants by sea engaged in by organized criminal groups, often on a transnational basis, also has an impact on the security of maritime navigation, which in some areas can be put at risk owing to terrorist attacks and, above all, nowadays to piracy. In fact, as more and more terrorist networks operating on a global level and modern forms of piracy make navigation extremely vulnerable, especially in some areas, it seemed appropriate to devote the second part of the book to developments in the fight against maritime piracy and terrorism at sea. Multiple aspects of security in maritime traffic are taken into consideration, and the analysis focuses particularly on violence perpetrated against a ship, its passengers or the crew, which can be classified as acts of terrorism or piracy, depending on the circumstances. Terrorist attacks are similar to those committed by pirates, but terrorists, even though they can also use a ship as a logistic base for their attacks or as a means of transporting weapons for their attacks, are driven by goals different from those underlying piracy. In fact, piracy consists of any act of depredation or violence committed for private ends by a private ship on the high seas against another ship or against persons or property on board such ships. As regards terrorism at sea, the main conventions governing the matter are studied (Caracciolo and Leanza), and special attention is paid to the provisions of the Hamburg Convention of 1979 and the establishment of search and rescue areas (also called SAR zones), whose boundaries can at times be difficult to delimit as is the case with the SAR between Italy and Malta (Leanza). As regards the fight against piracy, the importance of EU action in preventing and combating piracy in Somalia is highlighted (Panella), and likewise the steps taken by the United Nations, especially through the UN Security Council resolutions, and the few advantages and the many drawbacks of international cooperation in Somalia (Graziani). Again in the second part of the book, there is a detailed analysis of the policies adopted by Italy against piracy through the use of contractors or military units to protect ships (Caffio) and the resort to domestic courts to bring pirates to justice (Stuppia). In addition to the problems connected with the security of navigation and the struggle against piracy, in an international community that is becoming ever more globalized, it

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Introduction is becoming increasingly important to guarantee the safety of navigation in all of the seas and oceans around the world and to protect the environment. The growth in world maritime traffic and the increase in the number of serious accidents involving oil tankers causing frequent environmental disasters have led to the evolution of international standards and domestic rules. Protection of the environment is a matter of global dimensions and must be governed not only by countries’ domestic laws but also and above all by worldwide or regional rules applied by all actors in the current international community – be they states, international organizations or shipowners, etc. – that play a role in the sector. In this context, the third part of the book checks whether or not the new solutions contained in international instruments adequately respond to the needs of the international community to improve the safety of navigation, to protect the lives of persons on board and to reduce accidents during navigation that might cause serious damage to the marine environment. Apart from some specific aspects are then examined in relation to the safety of marine navigation and coastal State jurisdiction (Virzo), the important role played by Port State Control in ensuring compliance with safety rules (Turco Bulgherini) and the consequences of maritime environmental disasters and the CLC system consisting of the International Convention on Civil Liability for Oil Pollution Damage, adopted at Brussels on 29 November 1969 and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, adopted at Brussels, on 18 December 1971 (better known as the FUND Convention) (Comenale Pinto). Finally, and again on the topic of marine environmental disasters, the third part of the book concludes with an examination of the rules governing private actors’ civil liability for damage caused by the accidental spilling of hydrocarbons transported by oil tankers into the sea following incidents like explosions, collisions or structural failure of a ship (Gallo). Closely connected to the topic of the protection of the marine environment is undoubtedly the question of exploiting the resources of the sea, to which the fourth part of the book on marine resources and the sea as an energy source is devoted. As regards the system for exploiting offshore mining resources, it should be noted that very often the solution to their management is the delimitation of the maritime area where they are located. At times what is involved is an area subject to the overlapping jurisdiction of two or more coastal states or an area in which there are transboundary resources. Both are situations that frequently give rise to international disputes for the resolution of which various mechanisms such as the Commission on the Limits of the Continental Shelf (CLCS) under UNCLOS or joint development treaties (Mauro) have been adopted. Ever apart from the exploitation of marine resources, in more recent times the international community has begun to consider the sea as a source of alternative energy, such as that generated by currents, tides and microalgae, not to mention offshore wind power. Research into these new sources of renewable energy production is, today, a hot topic,

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Introduction worldwide. In particular, it has been demonstrated that the cultivation of plants containing substances with a high-energy content and their use (with or without pre-treatment) as fuels in so-called biomass power stations can produce electricity and heat (Imerito). Indirectly linked to the exploitation of marine resources is also the issue of the protection of the work of fishermen under international law (Papanicolopulu). Indeed, an improvement in the working conditions of fishermen facilitates the carrying on of an activity that is still central in the life of the international community and for which international conventions exist, including the ILO Maritime Labour Convention, which recently entered into force (Pustorino). The last issue covered by the fifth part of the book is the international law of the sea and polar regions. Before climate change, the international community was interested solely in Antarctica, its legal regime (governed by the Treaty of Washington and the Madrid Protocol), the regulation of the activities that could be carried out there by states and environmental protection. The research focuses on a comparative analysis of the legal regime applicable to Antarctica and the Arctic in order to highlight the differences in the rules governing the two polar regions and their evolution over time (Borgia). Also discussed is the issue of environmental liability under the 2005 Annex to the Madrid Protocol (Nicchia). Moreover, attention is dedicated to the increased possibility of exploiting the resources in the polar regions and the impact on the delicate environmental balance existing there (Ciciriello) in the event of any environmental disasters. In effect, especially in the Arctic, including the Arctic Ocean, climate change has the effect of exacerbating the already existing and interconnected problems related to both the environment and the economic and social development of the area in question. In the general context of the polar regions, consideration is also given to two special issues: the delimitation of Arctic zones and the implementation of human rights in the very peculiar context of the polar regions. As regards the first issue, of key importance is the 2010 Treaty between Norway and the Russian Federation on the maritime delimitation of the border of the Barents Sea (Amirante), a treaty that put an end to a dispute that had lasted about forty years and ushered in a new era of potential cooperation between the two Arctic countries. As regards the second issue, the human rights of the populations in the polar regions were considered even though there is no native and almost no permanent human population in Antarctica and the resident population in the Arctic Circle is relatively small. But it is not so much the number of individuals that enjoy rights that is important but rather the rights protected. In this regard a specific analysis was conducted on the very fragile balances that need to be safeguarded in such extreme conditions between the survival and cultural needs of specific human communities through the recognition of traditional fishing/hunting rights and the protection of animal species at the poles, and especially marine mammals (Mucci).

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Introduction Therefore, the writings in this book intend to offer a contribution to the study of the evolution of the law of the sea through an analysis of the sectors that have undergone significant change. As mentioned above, the focus has been on the aspects that are best suited to enabling one to adequately interpret the new needs that have emerged in international society and that in some cases, for example, piracy, echo the past although in a modern form. In short, the book seeks to furnish an overall picture of the new and complex issues relating to the law of the sea.International Law of the Sea

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Part I Migration by Sea

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Irregular Migration and Safeguard of Life at Sea. International Rules and Recent Developments in the Mediterranean Sea

Marcello Di Filippo* 1.1 The Peculiar Issues Raised by Irregular Migration by Sea In recent years, migration flows by sea towards southern European Union (EU) Member States have increased significantly.1 Contrast actions by coastal states, both unilateral or coordinated through the Frontex agency, and the relevance of international rules concerning various subjects – law of the sea, safeguard of life at sea, human rights, non-refoulement of persons in need of international protection – raise a set of problematic issues, about which the European Commission admitted in 2006 the need to carry out an in-depth legal and technical analysis.2 Recently, the main international organizations dealt with irregular migration and the need to contrast it, underlining alternatively the related threat to security (together with terrorism and organized crime)3 or the need to conciliate control

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Associate Professor of International Law, University of Pisa ([email protected]). See (with further references) X. Hinrichs, ‘Measures Against Smuggling of Migrants at Sea: A Law of the Sea Related Perspective’, Revue belge de droit international, Vol. 36, 2003, p. 413, at pp. 413-414, 421, 446-447; T. Spijkerboer, Trends in the Different Legislations of the Member States Concerning Asylum in the EU: The Human Costs of Border Control, study prepared on behalf of the Commission ‘Civil Liberties, Justice and Home Affairs’ of the European Parliament, July 2006, Doc. IPOL/C/LIBE/FWC/2005-23-SC1, PE 378.25, at pp. 1-2; United Nations Office on Drugs and Crime, Organized Crime and Irregular Migration From Africa to Europe, July 2006 ; L. Coslovi, Brevi note sull’immigrazione via mare in Italia e Spagna, January 2007 ; H. de Haas, The Myth of Invasion. Irregular Migration From West Africa to the Maghreb and the European Union, IMI research report, University of Oxford, October 2007; R. Weinzierl & U. Lisson, Border Management and Human Rights. A Study of EU Law and the Law of the Sea, German Institute for Human Rights, December 2007 , at p. 18. See the Communication ‘Reinforcing the Management of the European Union’s Southern Maritime Borders’, Doc. COM(2006) 733, 30 November 2006; the subsequent Commission Staff Working Document ‘Study on the International Law Instruments in Relation to Illegal Immigration by Sea’, Doc. SEC (2007) 691, 15 May 2007 (hereinafter, the Commission Working Document). See the Berlin Declaration, signed on 25 March 2007 by the Presidency of the Council, the President of the Commission, the President of the European Parliament, on conclusion of the informal meeting of the Heads of State or Government, held in Berlin on 24 and 25 March 2007: see point II, where the undersigned undertake to jointly fight against “terrorism, organized crime and illegal immigration.”

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Marcello Di Filippo of borders and migration policy choices with respect to aliens’ human rights and other international provisions.4 Specific issues arise when irregular migration by sea is at stake. Recent experience shows a significant variety of techniques: hiding of stowaways in ferries or cargoes in regular service5; arrivals on board old ships in bad condition and overloaded; use of small boats driven by the migrants themselves and completely unsuited for long journeys (being usually devoted to short-term fishing); employment of speed rubber dinghies and quick unloading of migrants, often before reaching dry land and with brutal modalities, if necessary, in order to avoid interception by the coast guard6 and, lastly, carrying out the major part of the journey by means of a medium- or large-sized boat that stops at the limit of ­territorial waters, disembarking migrants with light launches that go back and forth ­between the coast and the ‘mother’ boat.7 Practice highlights the dangerous nature of such movements and the occurrence of tragic outcomes, about which precise statistics are inherently unavailable.8 In addition, such flows are very often mixed, in the sense that persons attempting irregular entry may be, at the same time, ordinary migrants, individuals in need of international protection (either from the departure state or their own state, when different9) or other vulnerable persons (unaccompanied minors, sick persons, victims of trafficking, pregnant women). The issue at stake proves difficult because an ad hoc international regulation does not exist and destination countries may find themselves in the uncomfortable position of tolerating arrivals without being able to effectively contrast them if genuine adherence to human rights 4

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See the amendments to the SOLAS and SAR Conventions, approved in 2004 by the International Maritime Organization (hereinafter, IMO), about which see infra, Section 4; the UN GA Resolution of 23 February 2007, Doc. A/RES/61/165, entitled ‘Protection of Migrants’, in particular §§ 6-7. See also the leaflet, co-authored in 2006 by IMO and the UN High Commissioner for Refugees (hereinafter, IMO & UNHCR), entitled Rescue at Sea. A Guide to Principles and Practice as Applied to Migrants and Refugees, at . This issue will not be treated here, the attention being focused on journeys and boats entirely devoted to irregular migration: for a discussion of problems raised by stowaways, see among others G. Bastid-Burdeau, ‘Migrations clandestines et droit de la mer’, in La mer et son droit. Melanges offerts a Laurent Lucchini et Jean-Pierre Quénedec, A. Pedone, Paris, 2003, p. 5, at pp. 60-64. From Albania and Montenegro to Italy in the 1990s, from Somalia and other countries to Yemen in the Aden Gulf nowadays. See the cases described in IMO Circular MSC/Circ. 896, Rev. 1. See, for instance, the data reported in Spijkerboer 2006, pp. 6-7; Weinzierl & Lisson 2007, p. 18; Parliamentary Assembly of the Council of Europe, Lives Lost in the Mediterranean Sea: Who Is Responsible?, report presented by T. Strik to the Committee on Migration, Refugees and Displaced Persons, Doc. 12895, 5 April 2012. Additionally, see three sources, very different in nature but converging in drawing attention to the same problem: the UNHCR website section on mixed migration flows ; the biannual circulars issued by the IMO Maritime Safety Committee on ‘Unsafe practices associated with the trafficking or transport of illegal migrants by sea’ ; the data reported on the website Fortress Europe . Among the various sources on this subject, reference can be made to the web page and to the special issue of the UNHCR review Refugee, entitled ‘Refugee or ­Migrant. Why It Matters’, Vol. 148, 2007, No. 4.

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1  Irregular Migration and Safeguard of Life at Sea standards is to be ensured (and smugglers know it perfectly). An overview of ­applicable international rules, of different origin, confirms such an impression: provisions on jurisdiction over maritime zones and on related coercive powers; obligations on safeguard of life at sea and on search and rescue of persons in distress; rules on human rights, especially the ones concerning the right to leave a country and the protection of persons in need of international protection, including refugees.10 The purpose of this chapter is to scrutinize the international provisions concerning safeguard of life at sea in order to check whether the resulting framework is coherent or whether the effect is a contradiction or a tension between their abstract content and their practical enforcement. Particular emphasis will be placed on the Mediterranean Basin, on the solutions envisaged (or proposed) in International Maritime Organization (IMO) circles and on the role of the EU and the ultimate effect of its rules and policy choices: new solution or new problems? 1.2 Obligations Aimed at Safeguarding Life at Sea: The Relevant Treaty Rules In the last few decades, the long-established maritime custom to provide comfort and take on board shipwrecked persons and those whose life is at risk has found wide recognition in positive international law. The United Nations (UN), and especially, IMO devoted much attention to this issue, as witnessed by several treaties and related instruments. The United Nations Convention on the Law of Sea (UNCLOS) treats this topic in a general character provision, stating that every state shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers to render assistance to any person found at sea in danger of being lost; to proceed with all possible speed to the rescue of persons in distress, if informed of their need for assistance, in so far as such action may reasonably be expected of him. In addition, every coastal state shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements, cooperate with neighbouring states for this purpose (see Art. 98, para. 2). A more detailed regulation of those issues can be found, however, in two older IMO Conventions, adopted in the seventies and amended on various occasions thanks to 10 For a comprehensive overview of the various issues at stake, see (also for additional references) A. FischerLescano, T. Löhr & T. Tohidipur, ‘Border Controls at Sea: Requirements Under International Human Rights and Refugee Law’, International Journal of Refugee Law, Vol. 21, 2009, p. 265; R. Barnes, ‘The International Law of the Sea and Migration Control’, in B. Ryan & V. Mitsilegas (Eds.), Extraterritorial Migration Control: Legal Challenges, Martinus Nijhoff, Leiden, 2010, p. 103; V. Moreno-Lax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’, International Journal of Refugee Law, Vol. 23, 2011, p. 174; S. Trevisanut, Immigrazione irregolare via mare. Diritto internazionale e diritto dell’Unione europea, Jovene, Napoli, 2012; J.J. Rijpma, ‘The Patrolling of the European Union’s External Maritime Border: Preventing the Rule of Law From Getting Lost at Sea’, in this volume, Section 4.2.

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Marcello Di Filippo a simplified revision mechanism. The International Convention for the Safeguard of Life at Sea, adopted in London on 1 November 1974 (hereinafter, SOLAS Convention),11 provides that the master of a ship at sea that is in a position to be able to provide assistance, on receiving a signal from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service that the ship is doing so12; moreover, the Convention requires each contracting government to ensure that necessary arrangements are made for distress communication and coordination in its area of responsibility and for rescue of persons in distress at sea around its coast. These arrangements shall include the establishment, operation and maintenance of such search and rescue facilities as are deemed practicable and necessary, having regard to the density of the seagoing traffic and the navigational dangers, and shall, so far as possible, provide adequate means of locating and rescuing such persons.13 The International Convention on Search and Rescue at Sea, adopted in Hamburg on 27 April 1979 (hereinafter, SAR Convention),14 reiterates the duty to set up SAR areas and the related rapid intervention services and adds that parties shall ensure that assistance is provided to any person in distress at sea, doing it regardless of the nationality or status of such a person or the circumstances in which the person is found,15 and that an operation to retrieve persons in distress provides for their initial medical treatment or other needs and delivers them to a place of safety.16 Against this background, it arises that both the master of a vessel (no matter whether official or private) and the states (especially the one territorially competent for the relevant SAR region) must comply with several obligations, occasionally of a certain degree of intensity. Hence, it comes out that a state acting on the high seas with a view to protecting its maritime borders from unauthorized entries may be compelled to carry out an activity of first assistance and taking on board of irregular migrants, not being allowed to ignore their actual conditions and need for rescue.17 It is worth noting that intervention in favour of a vessel in need of rescue is a duty and is not made conditional on its nationality. Additionally, the above-mentioned treaty-based regimes do not solve every practical question: they present some interpretative doubts, require a proper implementation by states parties, and need the conclusion of regional or bilateral agreements concerning the delimitation of SAR zones and the coordination of their activities. When coming to the law in action (especially in the Mediterranean Sea), we must face several problems that are able to produce a crises of the rescue regime drafted by the relevant conventions. As aptly observed, 11 Entered into force on 25 May 1980; 162 Contracting States as of 31 January 2013. 12 See Chapter V, Reg. 33, para. 1. 13 See Chapter V, Reg. 7. 14 Entered into force on 22 June 1985; 104 Contracting States as of 31 January 2013. 15 Chapter 2.1.10. 16 Chapter 1.3.2. 17 Additionally, see the cases described by Hinrichs 2003, pp. 445-447.

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1  Irregular Migration and Safeguard of Life at Sea “current concerns relating to rescue at sea are largely associated with irregular migration rather than with accidents or the malfunction of vessels at sea,”18 and “international legal norms are faced with developments unforeseen at the time of their drafting,” while “these same international norms are the only ones which apply in these new scenarios.”19 1.3 EU Law and SAR Matters The EU is not party to the SOLAS and SAR Conventions, but the European Commission (EC) is party to the UNCLOS, although its declaration of competence does not include SAR matters. However, some aspects of EU law may exacerbate current controversies concerning search and rescue activities. For instance, under the legislation currently in force (Dublin Regulation, Schengen Borders Code, Return Directive20), a principle may be derived according to which asylum seekers, refugees and irregular migrants must be taken in charge by the state whose borders have been first crossed. Notwithstanding the enunciation of a general principle of intra-EU solidarity in Article 80 TFEU,21 there is no permanent and automatic mechanism of burden sharing among EU Member States with regard to irregular migratory flows, by both land and sea. In favour of a particularly affected Member State, four main tools may be activated under procedures that are not excessively based upon political circumstances: − Joint Frontex operations coordinated by Frontex, such as HERMES 2011, which was launched on 20 February 2011 to help Italy with maritime border surveillance, identification of migrants and refugees as well as search and rescue operations at sea; − Rapid Border Intervention Teams (RABITs) deployed by Frontex after a request from a Member State in need of help for managing border controls. This tool, was first employed in 2010, in favour of Greece, faced with an extraordinary incoming flow at the land border with Turkey; − Financial assistance to be mobilised, especially under the External Borders Fund and European Refugee Fund, or even under the European Return Fund; − Asylum Support Teams (AST), multidisciplinary teams of EU experts deployed by the European Asylum Support Office (EASO) in a Member State for a limited time in order to back the asylum system of that Member State. Even in this case, Greece was the first country to ask for this emergency support in 2011. 18 N. Klein, ‘International Migration by Sea and Air’, in B. Opeskin, R. Perruchoud & J. Redpath-Cross (Eds.), Foundations of International Migration Law, Cambridge University Press, Cambridge, 2012, p. 260, at p. 275. 19 P. Mallia, Migrant Smuggling by Sea. Combating a Current Threat to Maritime Security Through the Creation of a Cooperative Framework, Martinus Nijhoff, Leiden, 2010, p. 97. 20 For a description of such normative framework, see Rijpma 2013, Section 4.3. 21 Art. 80 reads as follows: “The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.”

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Marcello Di Filippo Additionally, two other tools may be activated, more strictly dependent on the political will of other Member States: voluntary relocation schemes, such as the one called Eurema, launched in 2011-2012 in favour of Malta, concerning around 600 refugees (twelve Member States and three third states agreed to relocate refugees disembarked at Malta)22; temporary protection under Directive 2001/55, never enforced. In practice, the state whose ship is conducting a SAR operation or the state responsible for the relevant SAR region, on accepting disembarkation, may be compelled by EU law to face the consequent burden (asylum seekers and refugees to accommodate; processing of asylum claims; irregular migrants to manage and eventually return to origin or transit countries). While some help in managing the situation on the ground may be obtained through the four tools listed above, the perspective of obtaining more robust solidarity (a relocation voluntary scheme, or the activation of the mechanisms regulated in Directive 2001/55) is conditioned by contingent and political aspects. Such a situation created some reluctance in Member States with regard to participation in Frontex operations with their official ships (preferring, in the case of participation, to deploy helicopters, airplanes or other facilities) or to the hosting of the operation itself. In 2010, the EU Council approved the Decision No. 2010/252 of 26 April 2010, supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by Frontex.23 This Decision contains guidelines only for the Frontex-led operations and not for activities carried out by Member States in their autonomy. Moreover, it is divided into two parts, one binding and one merely recommendatory. This being said, the Decision is an important tool of reference for international practice. In the binding part, interesting clarifications are made on the extension of coercive powers on ships without nationality and, especially, on the prohibition to disembark persons in places that may be unsafe from a non-refoulement perspective. In the recommendatory part, SAR matters are directly treated. In the following analysis the relevant part of the Decision will be recalled.24 22 See the press release of 12 May 2011, at ; the Statement by Cecilia Malmström, EU Commissioner in charge of Home Affairs, on the results of the Ministerial Pledging Conference (12 May 2011), Doc. MEMO/11/295 of 13 May 2011; European Asylum Support Office, EUREMA Fact Finding Report on Intra-EU Relocation Activities From Malta, July 2012 . 23 OJ 2010 L 111/20. 24 It must be added that the EU Court of Justice declared the invalidity of this decision, owing to procedural faults: Court of Justice (Grand Chamber), Judgment of 5 September 2012 in Case C-355/10, European Parliament v. Council of the European Union, not yet published. The judgment of the Court does not contest the substance per se of the Decision, but only the procedure followed to enact rules, which require political choices falling within the responsibilities of the EU legislature. Additionally, the effects of the contested decision are maintained until the entry into force, within a reasonable time, of new rules intended to replace the annulled decision. In a document issued in November 2012, the European Commission announced that it will present a legislative proposal at the beginning of 2013: see Second Biannual Report on the Functioning of the Schengen Area 1 May 2012-31 October 2012, Doc. COM(2012) 686 final, 23 November 2012, Section 3.4.

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1  Irregular Migration and Safeguard of Life at Sea 1.4 Controversial Issues, with Special Regard to the Mediterranean Sea When examining the actual degree of implementation of the international rules on the safety of life at sea, a first problematic issue that we see is the fragmentary state of affairs as far as the drafting of regional or bilateral treaties on the delimitation of SAR areas is concerned. Focusing on the Mediterranean Basin, a provisional plan was adopted by IMO in the 1997 Conference of Valencia, as a framework of reference for the Mediterranean Sea and the Black Sea, open to additional specification at state’s level and to integration by means of more detailed bilateral and regional agreements.25 Unfortunately, the discussions carried out in Valencia among the states of Central Mediterranean (absent Algeria and Libya) were unfruitful, and did not allow us to reach a consensus. In particular, the area delimited by the coasts of Italy, Malta and Libya raises various problems. Both Malta26 and Italy27 unilaterally established a SAR zone, partially overlapping. The extension of the Maltese SAR area appears to be excessive, paying due regard to the country’s capacity to warrant adequate coverage and to the circumstance that it includes the Italian islands of Lampedusa and Lampione and the surrounding territorial waters.28 As far as Libya is concerned, it is not sure that 25 See the ‘General Agreement on a Provisional SAR Plan’, adopted during the IMO Conference held in Valencia (8-12 September 1997), as Ann. 1 to the Res. 1. 26 See the map and the information reported at and in IMO Circular SAR.8/Circ.1/Corr.3, 20 October 2005, Global Sar Plan Containing Information on the Current Availability of Sar Services, Ann. 2 , p. 25. 27 See the map annexed to Presidential Decree (D.P.R.) No. 660/1994 and in IMO Circular SAR.8/Circ.1/ Corr.5, 23 April 2007, Global Sar Plan Containing Information on the Current Availability of Sar Services , p. 26. 28 It has been reported that “The reasons for this enormous SAR area are historical and are also connected to the lucrative income Malta derives from its Flight Information Region (FIR). The size of the SAR region is bound to the Maltese FIR. Malta is earning around €8.23 million yearly for air traffic passing over its SAR/FIR region”: see S. Klepp, ‘A Double Bind: Malta and the Rescue of Unwanted Migrants at Sea, a Legal Anthropological Perspective on the Humanitarian Law of the Sea’, International Journal of Refugee Law, Vol. 23, 2011, p. 538, at p. 545. The anomalies of the Malta SAR zone may be addressed only following the conclusion of dedicated delimitation and cooperation agreements with neighbouring countries. With Greece, an Agreement on Cooperation in the Field of Search and Rescue was signed on 12 January 2008 (and ratified by Malta on 3 April 2008) but has not yet entered into force; see : it delegates to Greek authorities the coordination of SAR activities over a broad portion of the eastern Maltese SAR region. As far Italy is concerned, some rounds of negotiation in recent years did not produce a decisive outcome. As reported by the then legal advisor of Italy (Professor Umberto Leanza), in September 1999 a substantive understanding had been reached on a draft framework agreement, under whose terms subsequent technical arrangements on specific items (SAR matters among others) would have been concluded between the parties. In 2002 the framework agreement reached the stage of signature, but contrasts arose as to the possible content of related technical arrangements: see ‘Framework Agreement for Aero-maritime Surveillance in the Mediterranean for the Fight Against Illegal Trafficking at Sea, With Particular Reference to Those Activities Which Directly Cause Harm to Customs and Revenue’, signed on 20 December 2002, entered into force on 31 July 2003; for the text, see . A new round of negotiations took place between 2002 and 2005, but apparently no technical arrangements were finalized. For additional details, see U. Leanza, ‘Maritime Safety and Security Within Mediterranean Context: Strategic Outlines’, reprinted in the proceedings of the 1st Mediterranean Coast Guard Services Forum, held in Genoa on 6-7 May 2009, at , p. 12.

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Marcello Di Filippo a formal establishment of the SAR followed the adhesion to the SAR Convention.29 It should be noted, however, that in the past the Maltese government often referred to the Libyan SAR area when dealing with distress situations involving disembarkation issues of migrants rescued there; moreover, on 18 March 2009, Libya and Malta signed a “Memorandum of Understanding (MoU) in the field of search and rescue,” aimed at coordinating the search and 30 rescue operations within their respective SAR regions. ­­ In any case, it is certain that during the last few years, the issues of the unsatisfactory fulfilment of search and rescue and of the insufficient cooperation with other states involved in SAR operations in the waters included in the Libyan SAR region or otherwise proximate have often been raised.31 The above-mentioned difficulties are not shared by any part of the Mediterranean Basin. In fact, it may be recalled that in the Ionic and Adriatic zone a consensus was found during the talks in Valencia and that some years later (2000), a treaty-based regime, rather satisfactory, was defined by the interested states.32 A second problematic issue is represented by the notion of distress. It may be wondered whether it embraces a self-induced situation of danger (in order to claim rescue by the authorities of a prospective destination country) or the commencement of a risky voyage on an unseaworthy vessel. Contrary to what has been suggested by a commentator,33 I share the view that distress is an objective situation, which calls for rescue by ships that are able to intervene, irrespective of the genesis of it.34 Rather than exemption from rescue duties, such a scenario might lead to consequences of another kind of: interested states could impose sanctions on smugglers (when identifiable) and prevent or interrupt risky voyages even just 29 See the Commission Working Document, qtd. at p. 5, note 4; Leanza 2009, p. 11. Besides, the relevant IMO Circulars on Global Sar Plan Containing Information on the Current Availability of Sar Services do not report any information regarding Libya SAR zone and services, notwithstanding Libya’s quality of contracting States of the SAR Convention: lastly, see Doc. SAR.8/Circ.4, 1 December 2012. Libya formally accessed the SAR Convention in 2005, and the SOLAS Convention in 1981. 30 The text is not made public and no information on its status is available on the Maltese MFA website: see . 31 See the Commission Working Document, qtd. at p. 5 and p. 33, where it is stated that “the waters neighbouring Libya are not subject to SAR patrols” and that there are still some areas where SAR services are not provided at the moment by the State mainly responsible (for instance in the waters around Libya). 32 During the Ancona Conference of 19 May 2000, Italy concluded several Memoranda of Understanding with Albania, Croatia, Greece, and Slovenia: see M. Gestri, ‘I rapporti di vicinato marittimo tra l’Italia e gli Stati nati dalla dissoluzione della Iugoslavia’, in N. Ronzitti (Ed.), I rapporti di vicinato dell’Italia con Croazia, Serbia-Montenegro e Slovenia, Luiss University Press-Giuffré, Rome-Milan, 2005, p. 177, at pp. 207-211; A. Tassi, ‘Le zone di ricerca e soccorso in Mediterraneo’, Rivista Marittima, Vol. 146, No. 4, 2007, p. 31, at p. 33. As for other parts of the Mediterranean Sea, a critical issue is represented by the delimitation of SAR zones between Greece and Turkey: on this subject, see S. Trevisanut, ‘Search and Rescue Operations in the Mediterranean: Factor of Cooperation or Conflict?’, The International Journal of Marine and Coastal Law, Vol. 25, 2010, p. 523, at pp. 532-534; S. Marinai, ‘The Action of Greece and Spain Against Irregular Migration by Sea’, in this volume, Section2.10 (therein additional references). 33 See M. Pugh, ‘Europe’s Boat People: Maritime Cooperation in the Mediterranean’, Chaillot Paper No. 41, July 2000, p. 57. 34 See Mallia 2010, p. 98.

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1  Irregular Migration and Safeguard of Life at Sea outside the harbours of the departure country and in the adjacent waters: in such cases, these reactions might well be deemed legitimate restrictions on the right to leave a country, under Article 12, paragraph 3 of the 1966 UN International Covenant on Civil and Political Rights and under Article 2, paragraph 3 of the 4th Additional Protocol to the ECHR.35 A third question arises with the same concept of rescue. Does it imply taking on board the persons in danger, or escorting their vessel to a safe harbour? Or would it be sufficient to merely provide water, food, basic sanitary assistance and fuel and allow the vessel to continue its journey when it is self-evident that an attempt of irregular entry into another state’s territory will be realized? Sometimes, the latter interpretation has been advanced as a justification for not interfering with the ‘sacred’ freedom of navigation, especially when the migrants reportedly expressed the will to continue the journey.36 If it is clear beyond all doubt that any situation requires an ad hoc evaluation, in general terms, however, it must be stressed that freedom of navigation is not accorded to any vessel other than ships that fulfil a set of requisites, including that of being registered under a state’s flag, showing its flag, satisfying minimum requisites of safety and seaworthiness and being manned by a duly trained commander and crew. Thus, absent such requirements, the rescuing unit should prefer an interpretation of its duties based upon good faith and the assumption of responsibility rather than on the hope that migrants will sail towards another state’s shores. Moreover, when two EU Member States are involved, the duty of solidarity (spelled in Art. 4, para. 3 TEU and Art. 80 TFEU) is hardly compatible with a ‘turn away the eyes’ policy by the intervening unit. Fourthly, maritime law requires delivery of rescued persons as soon as possible to a place of safety, which is defined as a location where rescue operations are considered to terminate, and where the survivors’ safety or life is no longer threatened, basic human needs (such as food, shelter and medical needs) can be met and transportation arrangements can be made for the survivors’ next or final destination.37 A restrictive interpretation of the notion might lead to the consideration that a port of any country where such basic needs are satisfied would match the requirements of a place of safety, irrespective of the quality of the rescued persons and of the possible need for international protection.38 However, a wider construction of the concept of place of safety is advanced by many commentators,39 35 This being said, it must be underlined that other aspects might arise, under a human rights’ perspective: see below, in the text. 36 See the references to Maltese practice made by F. Caffio, ‘Un accordo euromediterraneo per il salvataggio dei migranti’, 6 June 2011 ; Klepp 2011, pp. 552-554 and p. 557. 37 See IMO Guidelines on the Treatment of Persons Rescued at Sea, Doc. MSC.167(78), 20 May 2005, Principle 6.12. 38 This seems to be the position of Maltese authorities, according to Klepp 2011, pp. 549-550. 39 See Weinzierl & Lisson 2007; S. Trevisanut, ‘The Principle of Non-Refoulement at Sea and the Effectiveness of Asylum Protection’, Max Planck Yearbook of United Nations Law, Vol. 12, 2008, p. 205; Fischer-Lescano, Lohr & Tohidipur 2009, p. 291; K. Wouters & M. Den Heijer, ‘The Marine I Case: A Comment’, International Journal of Refugee Law, Vol. 22, 2010, p. 1; Moreno-Lax 2011, pp. 199-200; M. Tondini, ‘The Legality of the Interception of Boat People Under Search and Rescue and Border Control Operations’, Journal of International Maritime Law, Vol. 18, 2012, p. 59, at pp. 63-65.

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Marcello Di Filippo having due regard to converging data of international practice (IMO Guidelines,40 United Nations High Commissioner for Refugees (UNHCR) positions,41 EU orientations42): a location is safe when no risk of refoulement arises and where basic human rights of migrants and asylum seekers are respected. As a consequence, depending on the presence of asylum seekers or other vulnerable persons on the vessel in distress, “the arrangements made in regard to some of those rescued may not be valid for others.”43 This clarification is even more important as far as flagless vessels are concerned. For a public ship engaged in controls over irregular migration, a SAR intervention and the subsequent transportation of migrants to a port may appear as an easy way to assert jurisdiction on persons and boats, even where doubt might be raised about their exact journey, their behaviour and the prospective final destination. Asserting a situation of distress allows one to immediately intervene and then to disembark persons, in a national port44 or in the port of a third country (for instance, the departure one, or a transit one) that has expressed its consent, mainly in the context of a bilateral cooperation agreement on combating irregular migration by sea. Should the place of safety be meant to be just a shelter from sinking and starving, serious deficits as to the protection of human rights and respect of the non-refoulement principle might arise.45 40 For this view, see the Principle 6.17 contained in the IMO Guidelines on the Treatment of Persons Rescued at Sea: “The need to avoid disembarkation in territories where the lives and freedoms of those alleging a wellfounded fear of persecution would be threatened is a consideration in the case of asylum-seekers and refugees recovered at sea. / La nécessité d’éviter le débarquement dans des territoires où la vie et la liberté des personnes qui affirment avoir des craintes bien fondées de persécution seraient menacées est à prendre en compte dans le cas de demandeurs d’asile et de réfugiés récupérés en mer” (emphasis added). 41 See IMO & UNHCR, Rescue at Sea. A Guide to Principles and Practice as Applied to Migrants and Refugees, qtd. at pp. 7-10; UNHCR, Background Paper for the Expert Meeting in Djibouti (8-10 November 2011). Refugees and Asylum-Seekers in Distress at Sea – How Best to Respond?, October 2011, qtd. at Ann. A, § III.2, p. 7. 42 Council Decision 2010/252 of 26 April 2010. In Part I of the Decision (of a binding nature), § 1.2 reads as follows: “No person shall be disembarked in, or otherwise handed over to the authorities of, a country in contravention of the principle of non-refoulement, or from which there is a risk of expulsion or return to another country in contravention of that principle. Without prejudice to paragraph 1.1, the persons intercepted or rescued shall be informed in an appropriate way so that they can express any reasons for believing that disembarkation in the proposed place would be in breach of the principle of non-refoulement”. 43 See Moreno-Lax 2011, p. 198. 44 Thus avoiding lengthy and costly activities of surveillance over the vessel concerned: once disembarked, rescued persons might be, depending on the circumstances, removed to origin or transit countries. 45 On the strictly related issue of the extraterritorial application of human rights law and of the principle of non refoulement, see the authors cited in note 10. For its relevance, here a reference must be made to ECtHR (Grand Chamber), Judgment of 23 February 2012, Application No. 27765/09, Hirsi Jamaa and others v. Italy. This landmark judgment has been the object of several comments: see, among others, G. Carella, ‘Il divieto di respingimenti in mare, il caso Hirsi Jamaa e l’isola che non c’è’, Sud in Europa, 2012, No. 1, p. 5; A. Liguori, ‘La Corte europea dei diritti dell’uomo condanna l’Italia per i respingimenti verso la Libia del 2009: il caso Hirsi’, Rivista di Diritto Internazionale, Vol. 95, 2012, p. 415; N. Napoletano, ‘La condanna dei “respingimenti” operati dall’Italia verso la Libia da parte della Corte europea dei diritti umani: molte luci e qualche ombra’, Diritti umani e diritto internazionale, Vol. 6, 2012, p. 436; G. Cellamare, ‘La sentenza Hirsi Jamaa e la “nuova fase di cooperazione” tra Italia e Libia nel settore migratorio’, Sud in Europa, No. 2, 2012, p. 3; M. Giuffré, ‘State Responsibility Beyond Borders: What Legal Basis for Italy’s Push-backs to Libya?’, International Journal of Refugee Law, Vol. 24, 2012, p. 692.

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1  Irregular Migration and Safeguard of Life at Sea Last, but not least, the actual identification of the place of disembarkation put the SAR system under high pressure. Which state must allow disembarkation of the rescued persons after the first emergency intervention? The generic reference often made to the ‘next port of call’ in some writings or in UNHCR statements is devoid of a precise legal meaning and is absent from international maritime law treaties.46 At the same time, such treaties do not identify a precise responsibility to accept rescued persons for any state. Generally speaking, several states, having links with the situation, may be deemed potentially interested for disembarkation: the flag state of the rescuing unit or of the vessel in distress; the next port of call on the rescuing ship’s planned route; the closest port to the place where the rescue occurred; the state from which the vessel took the sea; the state competent for the relevant SAR zone; the countries of nationality of those rescued. The problems are particularly serious for private ships, which may be subjected to economic losses and complications, given that it is not always easy to prosecute the original route. Practice shows that a rescue at sea by private vessels may be followed by a refusal of the nearest state or the state territorially competent for the relevant SAR zone to accept the disembarkation of the migrants,47 or by the master having difficulty in convincing such authorities of not being involved in smuggling of migrants.48 Sometimes, the mess is total, as the recent case concerning the Maltese fishing boat Budafel shows.49 For public ships, 46 As to possible meanings, depending on the actual situation, see UNHCR, Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea, 18 March 2002, § 30.1: the Note was discussed at the expert round table ‘Rescue-at-Sea: Specific Aspects Relating to the Protection of Asylum-Seekers and Refugees’, held in Lisbon, Portugal on 25-26 March 2002. 47 See the famous case of the Norwegian boat ‘Tampa’, occurred in 2001, on which see M.N. Fornari, ‘Soccorso in mare di profughi e diritto di asilo: questioni di diritto internazionale sollevate dalle vicende della nave Tampa’, La Comunità Internazionale, Vol. 57, 2002, p. 61; P. Mathew, ‘Australian Refugee Protection in the Wake of the Tampa’, American Journal of International Law, Vol. 96, 2002, p. 661; M. White, ‘M/V Tampa Incident and Shipping Obligations of a Coastal State’, Indian Journal of International Law, Vol. 44, 2003, p. 314. More recently, similar cases took place in the waters between Malta and Libya, involving Spanish fishing boats (‘Francisco Catilina’ in July 2006; ‘Monfalcó’ in May 2007) not allowed to disembark either in Malta or in Libya, migrants rescued in a situation of clear distress: some days later, migrants were accepted by Spain and other European countries (see UNHCR, Press Briefing, 1 June 2007; El Pais, 4 June 2007). For further details on other cases, see B. Miltner, ‘Irregular Maritime Migration: Refugee Protection Issues in Rescue and Interception’, Fordham International Law Journal, Vol. 30, 2006, p. 75, at pp. 87-89; J. Coppens & E. Somers, ‘Towards New Rules on Disembarkation of Persons Rescued at Sea?’, The International Journal of Marine and Coastal Law, Vol. 25, 2010, p. 377, at pp. 379-381; Marinai 2013, Section 2.10. 48 See the Cap Anamur case (2004) and the indictment of some Tunisian fishermen (2007), both concerning Italy. For some interesting comments, S. Trevisanut, ‘Le Cap Anamur: profils de droit international et de droit de la mer’, Annuaire du Droit de la Mer, 2004, Vol. 9, p. 49; A. Di Pascale, ‘Migration Control at Sea: The Italian Case’, in B. Ryan & V. Mitsilegas (Eds.), Extraterritorial Migration Control: Legal Challenges, Martinus Nijhoff, Leiden, 2010, p. 281, at pp. 302-304. On 7 October 2009 the Tribunal of Agrigento acquitted the convicted persons of their charges in the Cap Anamur trial. Similarly, on 21 September 2011 the Court of Appeal of Palermo acquitted the Tunisian fishermen of the charge of smuggling of migrants and of disobedience towards public authorities. 49 See the account given by various sources: UNHCR, Press Briefing, 1 June 2007; La Repubblica, 27 May 2007 and 29 May 2007; the report from the Italian NGO Consiglio italiano rifugiati, presented during an EP public hearing ; the version from the Maltese government, included in a document presented in the same hearing ; Coppens & Somers 2010, p. 380.

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Marcello Di Filippo inconveniences are not any lesser, leading to situations where the only accessible solution may be represented by their own ports.50 In order to solve such problems and avoid the risk that commercial ships refrain from providing the due rescue or that warships have no other choice, due to diplomatic disagreement with the nearest states, than to conduct the migrants towards their own coasts, IMO adopted in 2004 some amendments to SOLAS and SAR Conventions, aimed at strengthening the search and rescue system and minimizing the inconveniences for ships carrying out an intervention.51 Article 4.1-1 SOLAS, as amended, states that Contracting Governments shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships’ intended voyage, provided that releasing the master of the ship from the obligations under the current regulation does not further endanger the safety of life at sea. The Contracting Government responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and co-operation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the Organization. In these cases the relevant Contracting Governments shall arrange for such disembarkation to be effective as soon as reasonably practicable. Article 3.1.9 SAR, as amended, is drafted in almost identical terms.52 Such amendments entered into force on 1 July 2006, according to the simplified revision mechanism of the mentioned conventions. 50 See the serious deficiencies in the behavior of several military ships, emerged in the so called Strik Report: Parliamentary Assembly of the Council of Europe 2012, qtd. at §§ 141-149; Parliamentary Assembly of the Council of Europe, Res. 1872 (2012), 24 April 2012. 51 See IMO Maritime Safety Committee Resolutions MSC.153(78) and MSC.155(78), adopted on 20 May 2004. 52 “Parties shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships’ intended voyage, provided that releasing the master of the ship from the obligations does not further endanger the safety of life at sea. The Party responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and cooperation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the Organization. In these cases, the relevant Parties shall arrange for such disembarkation to be effective as soon as reasonably practicable.” The IMO Guidelines on the treatment of persons rescued at sea, adopted by Committee on Maritime Safety together with the mentioned amendments by Resolution MSC.167(78), defines place a safety a location where rescue operations are considered to terminate and that an assisting ship could only temporarily considered a place of safety (see Sections 6.12-6.14).

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1  Irregular Migration and Safeguard of Life at Sea Problems have not disappeared, however: a relevant state like Malta did not accept the amendments, thus not being bound by them. Moreover, even under the amendments mentioned, the state responsible for the relevant SAR region does not seem to be under an unconditional duty to receive rescued persons: arguments have been put forward by some scholars in order to claim such duty in the event that no other state shows willingness to accept disembarkation,53 but it must be admitted that the language of the 2004 amendments is carefully drafted in order to avoid any automatism54 and that it was chosen after lengthy and complex discussions in IMO quarters.55 It follows that this state of the art in international legislation must be read in conjunction with different interpretations of the SAR Convention by proximate Mediterranean countries. While Malta (which not by chance refused to accept the 2004 amendments) maintains that rescued persons must be disembarked at the closest safe port (usually at Lampedusa or in Sicily),56 Italy replies that unless a different arrangement is reached on a case-by-case basis, the state competent for the relevant SAR zone must allow the disembarkation: given the extension of the Maltese SAR area, this would mean La Valletta’s port in the majority of cases. The dispute between these two countries – exacerbated by the subsequent duties to take charge of asylums seekers and of repatriation of migrants, absent an EU-based mechanism of burden sharing – periodically produces relevant deadlocks, as illustrated by the following recent cases: the merchant ship Pinar (flying Panama’s flag and whose owner had Turkish nationality), having rescued some migrants in Maltese SAR waters, was forced to wait for four days in the high seas, before being allowed by ­Italian authorities to approach

53 See Trevisanut 2010, p. 530. According to T. Gammeltoft-Hansen, The Refugee, the Sovereign and the Sea: EU Interdiction Policies in the Mediterranean, DIIS Working Paper No. 2008/6, at pp. 25-27, the 2004 amendments oblige the State responsible for the relevant SAR zone to allow disembarkation. A similar stand seems proposed in the House of Lords European Union Committee’s Ninth Report on the European Union, devoted to Frontex, 2008, § 109. A more nuanced position is expressed by Weinzierl & Lisson 2007, p. 40 (with further references). 54 The language employed in the amendments would have been different if a strict duty to receive rescued persons were to be placed upon the said State. The failure to stipulate a precise State of disembarkation is not judged a defect per se by Coppens & Somers 2010, pp. 387-388, due to the need to take into account multiple factors in each situation, not least the different need of migrants in a context of mixed flows. 55 For this view, see amongst others Mallia 2010, pp. 135-140; Barnes 2010, pp. 139 and 142. See also UNHCR, Background Paper for the Expert Meeting in Djibouti, p. 3, n. 7. 56 This was underlined by the Maltese Government with regard to some incidents occurring in the Libyan SAR region: see the letter of 8 June 2007 of the Malta Permanent Representative to the EU, addressed to the German Permanent Representative to the EU, in his capacity as Chairman of CoRePer, available at ; the statement of the Maltese Minister for justice and home affairs, delivered at the JHA Council meeting of 12 June 2007, available at .

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Marcello Di Filippo Italian shores57; the Italian frigate Spica58 and the patrol boat Commander Borsini,59 which unsuccessfully tried to access La Valletta’s port after having rescued a group of migrants in Maltese SAR water and was later obliged to sail towards Port Empedocle in Sicily. This Italian-Maltese saga registered additional worrying developments. Following the occurrence of serious disorders in Lampedusa in the aftermath of the so-called Arab Springs, on 24 September 2011, the Italian authorities declared the island to be an ‘unsafe port’ under SAR Convention and related provisions,60 realizing a sort of ‘excision strategy’ of the small island in the context of the controversial issue of the place of disembarkation61 and of the related identification of the closest safe port. On 1 October 2011, in a joint statement, UNHCR, IOM and Save the Children, part of the Praesidium project,62 warned that this decision would endanger rescue operations with coast guards unable to dock in Lampedusa, requiring them to travel further (supposedly up to Sicilian coasts or to Malta) to bring those rescued.63 It must be admitted that the above-mentioned riots in Lampedusa (leading to the partial destruction of the centre of first accommodation of migrants, transformed into a sort of detention centre without access to judges, lawyers and asylum procedures) broke out because of the choice of the Italian authorities not to relocate in Sicily and on the mainland the thousands of persons who gradually arrived on the small island from Tunisia and Libya during the previous weeks: the accumulation of persons in a precarious and uncertain situation on a small island (in a sort of no-law context) created strong tension with the authorities and, subsequently, even with the inhabitants. All these facts are not dependent on an objective inability of the Lampedusa island to receive persons rescued at sea and are the consequences of an ill-conceived 57 As Italian authorities clearly stated, Italy permitted disembarkation solely in view of the serious humanitarian emergency occurred on board of the merchant ship, and this gesture must not be interpreted as a precedent, nor as a recognition of the reasons put forward by Malta in the subject-matter: see the joint press release of the Ministers of Foreign Affairs and of Home Affairs of 19 April 2009 . The Maltese Prime Minister, in a declaration released to his Parliament on 21 April 2009, underlined that the rescue occurred 41 nautical miles from Lampedusa and 114 nautical miles to the South West of Malta, thus rendering Italy the State responsible for accepting disembarkation . See also the conclusions of the Maltese Council of Ministers of 5 May 2009 . 58 The facts occurred between 10 and 11 May 2009: see . 59 The facts occurred between 13 and 14 August 2011: see . 60 See the information given by the Italian Government to the Chamber of Deputies on 28 September 2011, at . 61 As a consequence, persons rescued at sea for whom Italy accepted responsibility were not brought to Lampedusa but to Sicily. 62 On this Project, see UNHCR, Refugee Protection and International Migration: A Review of UNHCR’s Operational Role in Southern Italy, Doc. PDES/2009/05, September 2009 ; the press release on the UNHCR website . 63 See .

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1  Irregular Migration and Safeguard of Life at Sea strategy of avoidance of responsibility by the Italian government in the context of migratory fluxes originated by the political changes in Northern Africa. The situation of Lampedusa was still unclear at the end of 2012: rescued persons have been effectively carried there by Italian public units following some SAR interventions on the high seas, but it seems that the declaration of ‘unsafe port’ has not yet been officially revoked. Thus, differences among interested states about the identification of the place of safety may postpone the disembarkation and act as a disincentive for potential rescuing units. The state responsible for the SAR region – as a consequence of its inertia or of a limited will to fulfil its duty to handle the situation, owing to objective difficulties or opportunity considerations – may discharge upon other states and the intervening ship the burdens following a SAR activity.64 Here we are faced with a mix of legal and political issues: some years ago, it was rightly pointed out that the reluctance of EU Member States to provide patrol boats in the joint operations coordinated by Frontex was due to the risk that the country providing the boats would have remained responsible for migrants rescued or intercepted at sea.65 Moreover, some ships might prefer not to fulfil their rescuing duties to avoid facing delays or costs arising from the uncertainties about disembarkation to a place of safety. 1.5 The Failed Attempt of IMO and EU to Elaborate New Legal Standards Owing to the uncertainties discussed in the previous section, some initiatives have been taken by IMO bodies to overcome the difficulties. The Facilitation Committee, responsible for the implementation and updating of the Convention on Facilitation of International Maritime Traffic (FAL Convention),66 discussed the topic and approved the interpretative guidelines of the amendments to the Convention, adopted in 2005 (aimed at facilitating disembarkation of persons rescued at sea). A circular, of a recommendatory nature, containing “Principles relating to administrative procedures for disembarking persons rescued at sea” was adopted in January 2009, stating that If disembarkation from the rescuing ship cannot be arranged swiftly elsewhere, the Government responsible for the SAR area should accept the disembarkation of the persons rescued in accordance with immigration laws and regulations of each Member State into a place of safety under its control in which the persons rescued can have timely access to post rescue support.67 64 A similar perplexity is expressed by Miltner 2006, p. 109. 65 See D. Lutterbeck, Coping With Europe’s Boat People. Trends and Policy Dilemmas in Controlling the EU’s Mediterranean Borders, ISPI Policy Brief No. 76 , February 2008, p. 5. 66 Done at London, 9 April 1965, 115 Contracting States as of 31 January 2013. 67 See Facilitation Committee, Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea, Doc. FAL.3/Circ.194, 22 January 2009, § 2.3.

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Marcello Di Filippo It is remarkable that several delegations opposed the use of the mandatory word ‘shall’ (originally present in the draft text) in recommendatory guidance, and accordingly the Committee agreed that ‘shall’ should be replaced by ‘should,’ where it appeared.68 ­Besides, Japan (backed by many other states) required the insertion of the phrase “in accordance with immigration laws and regulation,” thus further reducing the strength of the indication therein spelled.69 It must also be emphasized that strong objections were raised by some important IMO Member States (such as Australia, Malta and Spain), pointing either at the lack of competence of the FAL Committee on the subject matter70 or at the contrariness of such guidance to a proper interpretation of relevant provisions currently in force contained in the SAR and SOLAS Conventions as amended in 2004.71 In the light of the foregoing, it seems that this circular left the situation of uncertainty substantially unchanged. In the same period, when the FAL Committee worked on the above-mentioned circular, in the framework of the activities of another IMO body, the Flag State Implementation (FSI) Sub-Committee, Spain and Italy jointly submitted a document72 proposing to adopt further amendments to SOLAS and SAR Conventions, in order to incorporate and even strengthen the solution put forward in the FAL Circular73 and thus to cast away any doubt about the identification of the state responsible for the disembarkation of the rescued individuals. Malta replied with articulate reasoning, claiming that already the 2004 amendments were excessively burdensome for the contracting state responsible for the relevant SAR region and that the right solution was for disembarkation to occur in the safe port closest to the location of the rescue.74 After a lengthy discussion, the FSI sub-committee recognized that the substance of the questions raised by Italy and Spain required an appropriate discussion in other IMO fora (the MSC [Maritime Safety Committee] and the COMSAR Sub-Committee).75 During the discussion in the COMSAR Sub-Committee held in March 2010, a wide majority of states did not support Italy and 68 See Facilitation Committee, Report of the Facilitation Committee on Its Thirty-Fifth Session, Doc. FAL 35/17, 19 March 2009, § 6.59. 69 Ibid., § 6.58. 70 See Facilitation Committee, Report of the Facilitation Committee, qtd. at Ann. IV (Spain). 71 Ibid., qtd. at p. 32, Ann. V (Australia), Ann. VI (Malta). 72 See Doc. FSI/17/15/1, 13 February 2009, Compulsory Guidelines for the Treatment of Persons Rescued at Sea. 73 See the quoted document, § 10. The proposed text of the amendment reads as follow: “The Contracting Government responsible for the search and rescue region, where the rescue operation takes place, shall exercise primary responsibility for ensuring that such coordination and co-operation occurs, so that the persons rescued at sea are disembarked from the vessel involved in the rescued operation and delivered to a place of safety under its control, where persons rescued at sea can have timely access to post rescue support” (emphasis added). 74 See Doc. FSI 17/17/2, 27 February 2009, Comments on document 17/15/1, especially §§ 14-16. It has been rightly observed that the Maltese position, though following a shareable approach in principle, appears to be pushed by its peculiar overreaching SAR zone, whose extension should instead be delimited according to the actual capacity of the concerned country to fulfil the correlated international obligations: see Trevisanut 2010, p. 532. 75 See Doc. FSI 17/20, 24 April 2009, Report to the Maritime Safety Committee and the Marine Environment Protection Committee, especially §§ 15.10-15.12 (note that some delegations expressed their support to the proposal put forward by Italy and Spain).

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1  Irregular Migration and Safeguard of Life at Sea Spain’s proposal to elaborate new amendments to SOLAS and SAR Conventions, emphasizing the satisfactory point of balance reached by the 2004 amendments and the need to solve outstanding problems in the context of the flexibility therein envisaged, thus calling for the conclusion among interested parties of dedicated regional or bilateral agreements.76 While in IMO the discussions were lively, even EU institutions were working on the ­subject of maritime operations and SAR events: as already mentioned, the EU Council adopted the Decision No. 2010/252, containing rules (in Part I) and recommendations (in Part II) supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by Frontex. It must be taken into account that in any Frontex operation at sea, one Member State acts as host country. According to the recommendatory guidelines, the participating unit should forward as soon as possible all available information to the Rescue Coordination Centre responsible for the search and rescue region where the situation is taking place. In cases where the Rescue Coordination Centre of the third country responsible for the search and rescue region does not respond to the notification transmitted by the participating unit (as often occurred with Libya), the latter should contact the Rescue Coordination Centre of the host Member State.77 This solution has the merit of singling out a responsible authority in case of lack of cooperation by the competent third state, avoiding dangerous (negative) conflicts of competence among Member States. Additionally, the recommendatory guidelines tackle the contentious issue of the place of disembarkation: Without prejudice to the responsibility of the Rescue Coordination Centre, and unless otherwise specified in the operational plan, priority should be given to disembarkation in the third country from where the ship carrying the persons departed or through the territorial waters or search and rescue region of which that ship transited and if this is not possible, priority should be given to disembarkation in the host Member State unless it is necessary to act otherwise to ensure the safety of these persons.78 In the event of a scarce collaboration by third states of origin or transit, the burden of accepting disembarkation should lie on the host Member State. This choice presents its own intrinsic rationality, though not being the only conceivable, and it is open to different solutions to be specified in the operational plan of the mission. 76 See Doc. COMSAR 14/17, 19 March 2010, Report to the Maritime Safety Committee, §§ 10.14-10.17. 77 Part II, Section 1.2. 78 Part II, Section 2.1.

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Marcello Di Filippo Malta reacted very critically, announcing it would not host Frontex operations on its ­territory anymore.79 Later on, Malta expressed its readiness to host the 2010 Nautilus IV operation on condition that the operational plan specified that illegal immigrants ­rescued by the EU’s sea patrols would be disembarked at the nearest safe port (i.e. very often Lampedusa or Sicily).80 It seems that the EU decision did not succeed in solving the outstanding issue of the choice of the place of disembarkation both in the case when two or more Member States are involved and in the limited case of a Frontex-led operation. The ball goes back into the IMO’s field. 1.6 New Approaches Currently under Study by the IMO: towards a Regional Treaty for the Mediterranean Sea? Following a proposal put forward during the debate that took place in the 2010 ­COMSAR sub-committee, the IMO Secretary General offered his good offices for consultation among a group of interested states of the Mediterranean Basin. The MSC approved such an approach.81 One meeting was held in 2010, and two were held in the first half of 2011, in which Italy, Malta82 and Spain participated, during which it was agreed to develop a draft regional agreement on concerted procedures relating to the disembarkation of persons rescued at sea. The COMSAR Sub-Committee endorsed the proposal during its 2011 meeting and stated that such a regional agreement might serve as a ‘pilot scheme,’ which, if successful, could be extended to other parts of the world experiencing the same or similar situations.83 Moreover, during the 2011 meetings of this consultation group, it was agreed to expand the consultation to include other interested parties concerned (starting with Mediterranean countries) and relevant regional and international organizations,84 and that the first ‘expanded’ meeting would be held in Rome on 12 October 2011.85 Subsequently, the IMO Secretariat was advised by the consultation group that the intention was to develop the regional agreement in the form of a MoU.86

79 See ; . 80 See . 81 See Report of the Maritime Safety Committee on Its Eighty-Seventh Session, Doc. MSC 87/26, 25 May 2010, §§ 14.18-14.21. 82 Malta did not participate to the second meeting. 83 See Doc. COMSAR 15/16, 29 March 2011, Report to the Maritime Safety Committee, § 10.10. See also the Report of the Legal Committee on the Work of Its Ninety-Eighth Session, Doc. LEG 98/14, 18 April 2011, § 13.25. 84 See the Note by the Secretariat on the progress made on the development of a draft Regional agreement on concerted procedures relating to the disembarkation of persons rescued at sea, Doc. MSC 89/INF.23, 12 April 2011. 85 See the Note by the Secretariat on the progress made on the development of a draft Regional agreement on concerted procedures relating to the disembarkation of persons rescued at sea, Doc. FAL 37/6/1, 1 July 2011. 86 See Doc. FAL 37/WP.1, 9 September 2011, § 6.32.

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1  Irregular Migration and Safeguard of Life at Sea The first regional meeting was attended by countries of the Mediterranean region ­(Algeria, Cyprus, France, Greece, Italy, Lebanon, Malta, Morocco, Spain, Turkey), by the United Kingdom and by the IMO Secretariat. The draft terms of reference were approved in principle, and a draft regional MoU was considered and partly revised during that meeting. In order to make significant progress towards finalizing the draft regional MoU, it was considered beneficial to hold informal consultations among interested parties to agree on some of the more contentious issues and associated draft texts before organizing the next regional formal meeting. Accordingly, informal consultations of interested parties were held at IMO headquarters on 21 February 2012: some of the most contentious aspects were discussed and agreements reached on sensitive subjects, and the draft text of the regional MoU was improved accordingly.87 A second formal regional meeting, to review the draft MoU, was planned to be held on 18 April 2012 at IMO Headquarters .88 However, during the 2013 COMSAR Sub-Committee session (held in January 2013), the Secretariat informed Member States that, following a request for more time to be given for informal consultations between some parties concerned, the meeting had been postponed and would be rescheduled in the near future. The sub-committee took note of this development and invited the MSC to extend the target completion year for this planned output to 2014.89 Bilateral consultations have continued in the last few months, and apparently some differences have been smoothed, but it is not still certain, at the moment of writing, when the meeting will be reconvened.90 1.7 Final Remarks Irregular migration by sea put the search and rescue regime under high pressure. If some persistent ambiguity in the relevant provisions of SOLAS and SAR Conventions is a natural consequence of the need to take into account the peculiarities of the context, the high numbers of SAR operations (and of the related need to assume responsibilities for asylum seekers and irregular migrants) exacerbated the matters of controversy, especially in the Mediterranean. IMO could reach a certain degree of consensus only on general rules and accompanying guidelines, but was unable to eliminate the ultimate grounds for divergence among its Member States: this is particularly evident in the tension between Italy and Malta. Nor has the EU been successful in drawing a precise line so far.

87 See Doc. COMSAR 15/16, 29 March 2011, Report to the Maritime Safety Committee, § 10.3. 88 Invitation were extended to the Governments of Albania, Algeria, Bosnia and Herzegovina, Croatia, Cyprus, Egypt, France, Greece, Israel, Italy, Lebanon, Libya, Malta, Monaco, Montenegro, Morocco, Slovenia, Spain, the Syrian Arab Republic, Tunisia, Turkey and the United Kingdom. 89 Information courteously provided by the IMO Secretariat on 25 February 2013. 90 Information courteously provided by the Head of the Facilitation Section (Maritime Safety Division, IMO) on 27 February 2013.

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Marcello Di Filippo The reasons underlying the lack of adequacy of the current legal regime of SAR matters are grounded in other fields, i.e. the migratory policies and other priorities of some destination states, the issue of burden sharing among interested countries, the difficulty (both political and legal) of effectively dealing with some origin or transit states. Certainly, promoting a cooperative approach tailored to the common problems affecting a given region – as IMO is trying to do with the Mediterranean states – appears to be a correct way to proceed.91 However, as underlined by UNHCR in some recent initiatives and positions, the connected problem of the responsibility for asylum seekers and refugees must be tackled as a matter of priority92; to this end, the issues posed by irregular migrants and by their eventual repatriation must also be matched, not leaving alone the states more exposed to incoming flows. Towards this end, I think that a crucial role in the Mediterranean should be played by the EU and its Member States, taking into account that the main problems at stake concern or involve them in a substantial way. A more effective system of burden sharing93 among EU Member States could pave the way for fruitful talks about the disembarkation procedures and the delimitation of SAR zones (both among EU Member States and between them and third states, in the framework of the process sponsored by IMO), obliging the interested actors to take more transparent and verifiable stances. Additionally, a cohesive EU would be stronger and more credible interacting with transit countries and origin countries on the complex issues raised by international migration. In such a perspective, addressing some root causes and proposing a truly global approach might help reduce irregular flows and the related worrying negative side effects on the ­human rights of migrants. It is time to abandon the idea that challenges raised by irregular migratory movements may be faced only (or almost exclusively) with repressive instruments or security-based preventive tactics. Equally, it must be clear that cooperative deals may not be made with whatsoever state, no matter how decisive its support may be for contrasting smugglers94: human rights come first, as authoritatively asserted by the European Court of Human Rights (ECtHR) in the recent Hirsi judgment.

91 To this views, see also Trevisanut 2010, pp. 525-526 and 538-539. 92 UNHCR, Summary Conclusions of the Expert Meeting in Djibouti (8-10 November 2011). Refugees and Asylum-Seekers in Distress at Sea – How Best to Respond?, 5 December 2011, §§ 22-23 (and the annexed Model Framework for Cooperation following rescue at sea operations involving asylum-seekers and refugees); Background Paper, qtd. 93 A system of burden sharing undoubtedly must include the vexed question of the relocation of asylum seekers and refugees (a sort of taboo so far for many EU Member States, firmly opposing any preventive legal engagement), but should also embrace enhanced forms of support, to be built upon existing tools such as RAPID and EASO expert teams, and upon good practices like the Praesidium Project. See also the idea of setting up ‘Mobile Protection Response Teams’, advanced by the UNHCR, Background Paper, Ann. B; Summary Conclusions of the Expert Meeting in Djibouti, §§ 20-21. 94 See the discussion on the concept of “place of safety”, supra Section 1.4.

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2

The Action of Greece and Spain against Irregular Migration by Sea

Simone Marinai* 2.1 Greece and Spain as Natural Destinations for Migratory Flows The territories of Greece and Spain are situated physically at opposite extreme positions of the Mediterranean boundaries of the European Union (EU). They represent, respectively, the door of access for migration flows coming from the Middle East and other Asian countries, and from northern and sub-Saharan Africa. The morphology of the two countries is, at least in part, similar. In both cases, the coastal borders prevail. The Greek shores stretch for about 13,500 km and are surrounded by about 3,000 islands that can represent convenient mooring posts for small boats coming mainly from Turkey. Spain counts about 5,000 km of shores, is separated from Africa by a strait only 15 km wide, controls enclaves of Ceuta and Melilla on the Moroccan coast, and represents, also through the Canary Islands, a potential stepping stone to Europe for flows coming from north-western Africa. The wide coastal extension of the two countries makes particularly difficult the task of surveillance activity for preventing the entry of irregular migratory flows. Notwithstanding the similarities relating to the morphology and the coastal shape, the response of Greece and Spain to irregular migration by sea is appreciably different. 2.2 Migrations by Sea Towards Greece Migratory flows reaching Greece by sea come mainly from Turkish coasts. More limited are the flows coming from Libya and Egypt. Favourite destinations are the islands (Lesbos, Chios, Samos, Leros, Kos, Rhodes, Crete) that from north to south are situated immediately in front of the western coast of Turkey.1 Concerning immigrants coming from Turkey, the short trip allows them to avail themselves of small boats that are often led by traffickers and smugglers in human beings. In the case of rubber dinghies, even smaller and less expensive, smugglers avoid going on board in order not to risk being caught by the Greek coast guard. * 1

Assistant Professor of International Law, University of Pisa. Another relevant way of access is represented by the north-west land border with Turkey that mostly corresponds to the Evros river.

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Simone Marinai Considering that the migrants who arrive from the shores of Turkey are mainly Afghans, Iraqi Kurds, Pakistanis, Iranians, Egyptians and Syrians, it can be deduced that generally Turkey is not the country of origin of the migrants, but only a country of transit. However, this is not the case when the migrants are Kurds previously settled in Turkey. Only a few immigrants consider Greece to be the final destination of the trip; in fact, Greece itself is mainly considered a transit country to be crossed on the way to other countries of western or northern Europe. The number of arrivals increased significantly until 2010 when, according to data provided by the European Union (EU) Agency for Fundamental Rights, 90% of the irregular immigrants crossing over to the EU came from the land and maritime borders of Greece.2 In the first nine months of 2010, the arrivals on the Greek Aegean islands dropped significantly following the intensified Frontex operations while there was a corresponding increase in the crossing through the Evros land route.3 However, more recently, in the second half of 2012, the tightening of controls at the Greek–Turkish land border with the deployment of about 1,800 border police officers and the construction of the Evros fence border, coupled with the Frontex operation ‘Poseidon land’, have provoked a renewed flow of arrivals by sea, with boats arriving on the different Greek islands almost daily.4 The new wave has led to an increased number of interceptions at sea by the Greek coast guard and to a higher number of maritime incidents.5 2.3 The Treatment of Immigrants Arriving in Greece by Sea Various international bodies have found several flaws in the treatment of irregular immigrants arriving in Greece by sea. It must be taken into account that when the irregular immigrants arriving by sea are caught, they are held in a police station or in an office of the coast guard awaiting a decision on the criminal indictment for illegal entry or the administrative expulsion order. In case of expulsion, they should be transferred to appropriate 2 3 4

5

EU Agency for Fundamental Rights, Coping With a Fundamental Rights Emergency. The Situation of Persons Crossing the Greek Land Border in an Irregular Manner, Vienna, 2011. See Frontex, Situation at the External Borders, January-September 2010, at . See UN Special Rapporteur on the human rights of migrants concludes the fourth and last country visit in his regional study on the human rights of migrants at the borders of the EU: Greece, Athens, 3 December 2012, at . See also EU Council, Doc. No. 14229/12, 28 September 2012, with attached European Commission document DEC 32/2012. See, e.g., the cases reported at and at .

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2  The Action of Greece and Spain against Irregular Migration by Sea centres, but the crowding of those centres makes it necessary that they remain in the places where they have been housed. Since July 2009, the maximum length of detention has increased from three to six months,6 and to twelve months in cases where the irregular immigrants refuse to cooperate with the expulsion procedure or while waiting for the documentation requested to the country of origin. The conditions of treatment in the holding facilities are particularly difficult. According to the European Committee for the prevention of torture and other inhuman or degrading treatments (CPT), the Pagani centre, near Mytilene, on the island of Lesbos, is constantly overcrowded, especially in summer, when arrivals are more frequent. This renders the infrastructure inadequate and living conditions inhuman and degrading.7 Similarly, the CPT verified in the course of a visit in 2009 that the cell of the Chios port authority was not suitable for overnight detention and that the immigrants apprehended by the Patras port authority after the 2008 earthquake were being held in two metal containers where the conditions of detention were described as inhuman and degrading.8 Despite some improvements after the CPT visits,9 on 15 March 2011 the CPT made a public statement highlighting the lack of action by the Greek authorities to tackle the systemic deficiencies identified.10 Grave inadequacies in the standard of treatment of immigrants arriving by sea have also been ascertained by the judiciary. For example, acts of torture of immigrants coming from Turkey detained after being intercepted at sea have been certified by the European Court of Human Rights (ECtHR).11 Notwithstanding the persistent deficiencies of the Greek system of reception of immigrants arriving by sea, it shall be recorded that the close cooperation among the Hellenic coast guard, the Hellenic police force and Frontex in the Aegean Sea, during the first semester of 2010, particularly from April 2010, caused the shift of migration flows from the sea border towards the land border of Evros. As a result, some of the overcrowded centres of detention situated in many Greek harbours have thinned out, with a clear improvement in the treatment of the immigrants still hosted.12 On the other hand, the new routes have caused an exceptional and urgent migration flow through the Evros region, which reached

See alien Act No. 3386/2005 as amended by Act No. 3772/2009. See Report to the Government of Greece on the visit to Greece carried out by the CPT, from 17 to 29 September 2009, Strasbourg, CPT/Inf (2010) 33, 17 November 2010, para. 64. 8 See CPT/Inf (2010) 33, para. 84. 9 See, e.g., CPT/Inf (2010) 33, para. 82; Report submitted by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, M. Nowak, Mission to Greece, A/HRC/16/52/ Add.4, 4 March 2011, para. 46. 10 See CPT, Public Statement Concerning Greece, CPT/Inf (2011) 10, 15 March 2011. 11 See, e.g., Zontul v. Greece, Application 12294/07, Judgment of 17 January 2012; Ahmade v. Greece, Application 50520/09, Judgment of 25 September 2012. 12 See Response of the Government of Greece to the report of the CPT on its visit to Greece from 20 to 27 January 2011, CPT/Inf (2012) 2, 10 January 2012, pp. 11 and 60. 6 7

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Simone Marinai its peak at the end of the summer of that year and forced Greece to send a formal request to the European Commission (EC) for assistance at its land border. Consequently, Frontex’s Executive Border decided to deploy from November 2010 to March 2011 the first ever Rapid Border Intervention Team (RABIT) operation that allowed a 76% decrease in the number of irregular migrants apprehended compared with the previous daily average.13 During this massive flow, the further deterioration of the conditions of treatment in the police detention facilities in the Evros region was unavoidable.14 In the same way, the recent new wave of arrivals by sea will be expected to cause a worsening of the situation in the detention centres where the immigrants arriving by sea are accommodated. The situation of asylum seekers gives rise to an even more serious concern. The opportunity to lodge an asylum application is completely denied in the cases of informal frontiers refoulements that have been reported in the north of the Aegean Sea: practices of puncturing of rubber boats and of removing the boats’ engines and oars are reportedly undertaken as deterrent measures.15 Despite the objections of the Greek authorities that have asserted lack of evidence with regard to the alleged incidents, the United Nations High Commissioner for Refugees (UNHCR) has certified that at least one of the reported cases has been documented through a remarkable consistency of testimony. Beyond this evident violation of basic human rights, it is undeniable that the Greek asylum system does not adequately protect the asylum seekers from the risk of being returned to territories where they are exposed to persecutions or other serious breaches.16 They are treated as irregular immigrants, are subjected to a detention regime17 and often have no chance to apply for asylum. In theory, the immigrant may apply for asylum at the place of his or her arrival, but in practice, according to UNHCR, the structural deficiencies of the services of assistance and the lack of cooperation among frontier authorities make it nearly impossible to apply for asylum if the immigrant does not present himself (or herself) at the Central Office of Athens.18 For this reason, it is very difficult for the immigrant held in a centre situated 13 See Frontex, RABIT Operation 2010, Evaluation Report, Warsaw, August 2011, p. 8. 14 See Report to the Government of Greece on the visit to Greece carried out by the CPT from 19 to 27 January 2011, CPT/Inf (2012) 1, 10 January 2012, paras. 16-30. 15 See Report by T. Hammareborg, Council of Europe Commissioner for Human Rights, Strasbourg, 4 February 2009; UNHCR, Observation on Greece as a Country of Asylum, December 2009, p. 4. 16 See UNHCR, Universal Periodic Review, November 2010, at . About the defects in the Greek asylum system see L. Karamanidou & L. Schuster, ‘Realizing One’s Rights Under the 1951 Convention 60 Years On: A Review of Practical Constraints on Accessing Protection in Europe’, Journal of Refugee Studies, Vol. 25, No. 2, 2012, p. 169; P. McDonough & E. Tsourdi, ‘Putting Solidarity to the Test: Assessing Europe’s Response to the Asylum Crisis in Greece’, UNHCR, New Issues in Refugee Research, Research Paper No. 231, January 2012. 17 However, the Presidential Decree No. 90/2008 (implementing the directive No. 2005/85/EC) does not provide the duty of detention of the asylum applicant. 18 See UNHCR, note 15 above, p. 9.

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2  The Action of Greece and Spain against Irregular Migration by Sea on a peripheral island to seek refugee status. Then, it shall be considered that many immigrants who hold the requirements for the recognition of the refugee status, often prefer not to apply in Greece. In fact, the asylum seekers acknowledge the low recognition rates of this kind of application in Greece and, at the same time, the consequences of the Dublin system, according to which once the request for asylum is presented to the authorities of a Member State, the applicant will be included in the Eurodac data base with the faculty, for the state where a second application might be presented, to pretend that will be the first state (in this case, Greece) to assume the responsibility on the asylum seeker. It is significant that, according to data referred by the UNHCR, in 2009 the rate of success in asylum requests was 0.04%. It follows that the asylum procedure has collapsed and refugees are denied access to any meaningful refugee determination procedure.19 In this context, Greece has been condemned by ECtHR for breach of Articles 3 and 5, paragraphs 1 and 4 for degrading treatment, irregular detention of asylum seekers, violation of the right to institute proceedings for review of the lawfulness of the detention.20 Taking account of the Greek practice concerning the treatment of asylum seekers, all EU Member States21 – availing themselves of the sovereignty clause provided by Article 3, paragraph 2, of the Dublin regulation – have suspended transfers of asylum seekers to Greece in cases in which they should be allowed.22 In fact, EU Member States that transfer asylum seekers to Greece risk being charged with violation of international obligations in the subject matter, as Greece is not considered a safe country. This is what happened, e.g., to Belgium, which was condemned by the ECtHR, together with Greece, for violation of Articles 3 and 13 of the European Convention on Human Rights (ECHR) because, after returning immigrants to Greece, that state exposed them to the risk linked to the deficiencies of the Greek asylum system, to detention and life conditions that violate Article 3 and the need for effective remedy against the denial of the status of refugee.23 At around the same time, the European Court of Justice (ECJ) declared that Article 4 of the Charter of Fundamental Rights of the EU must be interpreted as meaning that a Member State may not transfer an asylum seeker to another Member State, like Greece, where the systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that 19 See A/HRC/16/52/Add.4 of 4 March 2011, para. 83. 20 S.D. v. Greece, Application 53541/07, Judgment of 11 June 2009. 21 See EASO, 2011 Annual Report on the Situation of Asylum in the European Union and on the Activities of the European Asylum Support Office, 2012, p. 38. 22 See S. Carrera & E. Guild, ‘Joint Operation RABIT 2010’ – FRONTEX Assistance to Greece’s Border With Turkey: Revealing the Deficiencies of Europe’s Dublin Asylum System’, at www.ceps.eu>, 2010, p. 16. 23 See M.S.S. v. Belgium and Greece, Application 30696/09, Judgment of 21 January 2011. For a comment, see V. Moreno Lax, ‘Dismantling the Dublin System: M.S.S. v. Belgium and Greece’, European Journal of Migration and Law, Vol. 14, No. 1, 2012, p. 1; C. Costello, ‘Courting Access to Asylum in Europe: Recent Supranational Jurisprudence Explored’, Human Rights Law Review, Vol. 12, No. 2, 2012, p. 287.

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Simone Marinai the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.24 Moreover, the EC launched an infringement procedure against Greece in 2009 for having failed to implement the EU asylum procedure correctly and for having maintained several deficiencies in the treatment of asylum seekers. Greece strived to improve its asylum system through the introduction, in November 2010, of a fast-track asylum procedure, in addition to a normal procedure, that reintroduces and improves the functioning of Appeal Committees open to the participation of a representative of UNHCR.25 The main task of these Committees is to clear the backlog of some 46,000 asylum requests pending for years at the second instance.26 On January 2011 an Asylum Authority was created, that was responsible for the evaluation in the first instance of applications for asylum.27 In parallel, the EC engaged in a dialogue with the Greek authorities and helped them to develop the National Action Plan on Migration Management.28 In April 2011, the European Asylum Support Office (EASO),29 together with the Greek authorities, developed a two-year operating plan that allowed deployment, since May 2011, of Asylum Support Teams on the ground to assist in building up the Greek asylum and reception services and reduce the backlog.30 The support (also financial) afforded to Greece has resulted in a number of positive developments: in particular, an increase in asylum recognition rates (from less than 1% to 12.35%) and an improvement in the quality of decision making have been reported.31 However, the effective perspective of a decisive enhancement of the asylum system will probably depend on the possibility of resolving the grave financial crisis afflicting Greece.32 24 ECJ, Judgment of 21 December 2011, N.S. v. Secretary of State for the Home Department et M.E. and Others v. Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, Joined Cases C-411/10 and C-493/10. For a comment, see G. Morgese, ‘Regolamento Dublino II e applicazione del principio di mutua fiducia tra Stati membri: la pronunzia della Corte di giustizia nel caso N.S. e altri’, Studi sull’integrazione europea, Vol. 7, No. 1, 2012, p. 147; J. Buckley, ‘N.S. v. Secretary of State for the Home Department (C-411/10)’, European Human Rights Law Review, No. 2, 2012, p. 205; S. Lieven, ‘Case Report on C-411/10, N.S. and C-493/10, M.E. and Others, 21 December 2011’, European Journal of Migration and Law, Vol. 14, No. 2, 2012, p. 223. 25 Presidential Decree No. 114/2010, 22 November 2010. 26 See Human Rights Council, Working Group on the Universal Periodic Review, Eleventh session, Geneva 2-13 May 2011, National report, Greece, A/HRC/WG.6/11/GRC/1 of 14 February 2011, p. 13. With regard to fundamental human rights in Greece, see Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with para. 15 (b) of the annex to Human Rights Council Res. 5/1, A/HRC/ WG.6/11/GRC/2 of 17 February 2011. 27 Act No. 3907/2011 on the establishment of reception centres and a new independent asylum service. 28 See press release MEMO/10/450, 27 September 2010. 29 See Reg. (EU) 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office, OJ 2010 L 132/11. 30 See European Asylum Support Office, Work Programme 2012, September 2011, EASO/MB/2011/25. 31 See European Commission: COM(2011) 835, 2 December 2011, pp. 10-11; COM(2012) 250, 20 May 2012, pp. 10-11. 32 For more on this view, see also UNHCR, Asylum Situation in Greece Including for Dublin II Transferees, 31 January 2011, p. 5.

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2  The Action of Greece and Spain against Irregular Migration by Sea 2.4 The Cooperation Mechanisms Developed by Greece From the perspective of the foreign policy carried out by Greece for the struggle against irregular migrants arriving by sea, the readmission agreement concluded on 8 November 2001 with Turkey should have had a strategic relevance.33 On the contrary, the Protocol in question proved not particularly effective. In fact, it is reported that Turkey accepts about 3% of the applications for readmission requested by Greece,34 and, at the same time, that Greece is accused of frequent refoulements at borders and informal deportations towards Turkish coasts.35 According to the 2001 Protocol, the Greek authorities should present to the Turkish authorities the application for readmission within 15 days from the date of arrival of the immigrant in Greek territory. However, the compliance with that time limit is often difficult, considering that it could be problematic to establish the country of origin and to have other details about the identity of the immigrant. Once sent, the request is evaluated by the Turkish authorities, which often delay answering for over 90 days, when the maximum term for the detention of the immigrant in Greece has expired.36 In spite of the provision of the 2001 Protocol, Turkey refused to activate the Izmir harbour as a point of delivery of the immigrants. Actually, it seems that the returns mostly occur in Evros, with high transport, escorts and other costs charged to Greece.37 However, Greece and Turkey showed their willingness to improve the state of implementation of the readmission Protocol. The Greek Minister of Citizen Protection declared in a press release of 14 May 2010 that during the official visit to Greece of Turkish Prime Minister Erdoğan, issues concerning irregular migration, organized crime and civil protection had been stressed.38 With regard to the implementation of the Readmission Protocol, 33 Protocol for the Implementation of Art. 8 of the Agreement between Greece and Turkey on combating crime, especially terrorism, organized crime, illicit drug-trafficking and illegal migration. About the climate of détente that began in 1999 and that allowed the conclusion of the agreement see C. Tsardanidis, ‘Migration and Greek Foreign Policy’, in Á.G. Chueca Sancho, V.L. Gutiérrez Castillo & I. Blázquez Rodríguez (Eds.), Las migraciones internacionales en el Mediteráneo y Unión europea, Huygens Editorial-Tres Culturas, Barcelona, 2009, p. 103 and, in particular, p. 113. 34 For more detailed data, see European Migration Network (EMN), EMN National Contact Point for the Hellenic Republic, Annual Policy Report 2009, Athens, 8 February 2010, p. 18. According to Council of Europe Committee on Migration, Refugees and Population, Readmission Agreements: A Mechanism for Returning Irregular Migrants, Rapporteur Ms. T. Strik, Doc. 12168, 17 March 2010, para. 53, under the bilateral readmission agreement, some Iraqi and Iranian nationals have been returned from Greece to Turkey; once in Turkey, those immigrants were allegedly returned to Iran or Iraq, having not had the chance to apply for asylum in Greece or in Turkey. 35 See I. Nikolakopoulou-Stephanou, ‘Greek and European Policy Priorities for Controlling Illegal Immigration’, Revue Héllenique de Droit International, Vol. 59, No. 2, 2006, p. 641 and, in particular, p. 650, n. 24. 36 See A. Triandafyllidou & T. Maroukis, ‘The Case of Greek Islands: The Challenge of Migration at the EU’s Southeastern Sea Borders’, Documentos CIDOB, Migraciones, No. 17, 2008, p. 63. 37 See M. Baldwin-Edwards, ‘Migration Between Greece and Turkey: From the “Exchange of Populations” to the Non-Recognition of Borders’, South East Europe Review for Labour and Social Affairs, No. 3, 2006, p. 115 and, in particular, p. 120. 38 See Hellenic Republic, Ministry of Citizen Protection, press release, 14 May 2010, at .

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Simone Marinai Turkey committed to set up a harbour in Smirne or nearby to be used as a boundary station for the readmission of irregular immigrants in the next three years. In the framework of the implementation of the Readmission Protocol, Turkey declared itself ready to accept a minimum of 1,000 applications for readmission per year. The strengthening of the cooperation in asylum policy and in the struggle against irregular migration is foreseen through the exchange of best practices and experiences of the two countries. What remains to be resolved is the fate of immigrants whom Turkey readmits into its territory. Turkey is able to repatriate immigrants who are nationals of neighbouring states, such as Iraqis, Iranians and Syrians; nationals of other countries are arbitrarily detained and held for indefinite periods until they are released with orders to leave Turkish territory. It is very difficult to accept applications for asylum during the period of detention. All these circumstances have induced the ECtHR to declare that Turkey has violated Articles 3, 5 and/or Article 13 of ECHR.39 Then, it shall be taken into account that Turkey still maintains the geographical limitation under Article 1(B) of the 1951 Geneva Convention relating to the status of refugees.40 Consequently, Turkey is not obliged to apply the Convention to refugees from outside Europe. Although UNHCR has recognized that Turkey provides non-European refugees with temporary asylum and guarantees to them permission to remain in the country until UNHCR finds durable solutions for them elsewhere, and although a number of positive developments (essentially due to the pressure of EU in the framework of the pre-accession process), including in terms of legislation, have been recorded,41 it is significant that recently the Human Rights Committee expressed concern that present Turkish law insufficiently protects refugees, in particular as a consequence of the above-mentioned geographical limitation42 and that the EC still considers the Turkish asylum system far below EU standards.43 The willingness to cooperate in the field of immigration is affected by the climate of tension that traditionally characterizes the relationships between Greece and Turkey. A step forward is represented by the establishment of the High Level Cooperation Council between Greece and Turkey,44 which, following the May 2010 meeting, convened for

39 See, e.g., Abdolkhani and Karimnia v. Turkey, Application 30471/08, Judgment of 22 September 2009; Tehrani and o. v. Turkey, Applications 32940/08, 41626/08, 43616/08, Judgment of 13 April 2010. 40 About the Turkish asylum system, see I. Kaya, ‘Reform in Turkish Asylum Law: Adopting the EU Acquis?’, CARIM Research Reports No. 16, RSCAS, San Domenico di Fiesole (FI), EUI, 2009; K. Kirişçi, ‘Turkey’s New Draft Law on Asylum: What to Make of It?’, in S. Paçaci Elitok & T. Straubhaar (Eds.), Turkey, Migration and the EU: Potentials, Challenges and Opportunities, Hamburg University Press, Hamburg, 2012, p. 63. 41 See Turkey, UNHCR Global Report 2011 and Turkey, UNHCR Global Appeal 2013 Update, both at . 42 See Human Rights Committee, Concluding Observations on the Initial Report of Turkey Adopted by the Committee at Its 106th Session, CCPR/C/TUR/CO/1, 13 November 2012, para. 20. 43 See European Commission, SWD(2012) 336, 10 October 2012, p. 79. 44 See the Joint Communiqué, 14-15 May 2010, at .

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2  The Action of Greece and Spain against Irregular Migration by Sea the second time in March 2013.45 However, there are several unresolved issues: For instance, the situation of the self-proclaimed Turkish Republic in the northern part of the island of Cyprus, the edge of the jurisdiction on the respective maritime zones and on natural gas resources in the Aegean Sea, the delimitation of the respective search and rescue region,46 the rights of minorities in western Thrace and in Istanbul and the military drills of the Turkish air force in the airspace of the Greek islands. The ongoing frictions inevitably impact cooperation in the immigration sphere, which, notwithstanding the announced goodwill of the parties, still ploughs through. For these reasons, the announcement that negotiators of the EC and Turkey have initialled an EU–Turkey readmission agreement, on 21 June 2012, is welcome.47 This agreement, in the event it will ever enter into force, after a three-year transitional period, will take precedence over the incompatible provisions of any legally binding bilateral instrument concluded between EU Member States and Turkey. However, although the new agreement will represent a step forward in the cooperation with Turkey, it will not solve all the problems since it does not address the causes of the migratory flows. Apart from the relationships with Turkey, Greece has focused the negotiation of readmission agreements, especially with other European countries,48 more than with countries of origin, although it is reported that it is in the process of negotiating bilateral agreements of readmission at least with Afghanistan, Bangladesh, Kazakhstan, Indonesia, Iraq and Nigeria.49 When readmission agreements have not been signed, they have been replaced by agreements of police cooperation, which in some cases also enable readmission to the country of origin or a third country willing to accept the migrant.50 Similar agreements have been concluded on various forms of organized crime such as trafficking and smuggling in human beings, facilitating exchange of information among

45 During the March 2013 meeting, the representatives of the two States adopted, inter alia, a Joint Declaration on enhancing cooperation in the field of illegal migration and readmission. 46 According to the Hamburg Convention on maritime search and rescue of 1979, each search and rescue region shall be established by agreement among the parties concerned. Lacking a similar agreement, the two countries have unilaterally declared their respective search and rescue area and notified the IMO. 47 See press release MEMO/12/477, 21 June 2012. See also European Commission, COM(2012) 239, 22 June 2012. 48 Greece has signed readmission agreements with Bosnia Herzegovina, Bulgaria, Croatia, France, Hungary, Italy, Latvia, Lithuania, Poland, Romania, Slovenia, Switzerland and Turkey. 49 See European Commission, SWD(2012) 139, 30 May 2012, p. 46. Other sources report that Greece is also at the stage of deliberation for conclusion of agreements with Russia, Pakistan, Albania, Moldova and Serbia. See the data provided by the International Cooperation Department of the Greek police force headquarters as reported in Hellenic Republic, Ministry of Interior Decentralization & e-Government, Annual Policy Report 2009, Athens, 8 February 2010, p. 39, at . 50 See A. Dimitriadi & A. Triandafylliou, ‘Study Concerning the Project and Strategies of Greece, Fostering Assisted Returns to and Reintegration in Third Countries, Greece’, EMN, Athens, September 2009, at .

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Simone Marinai the parties and other forms of cooperation. Such agreements have been concluded with Albania, Armenia, Bosnia Herzegovina, Bulgaria, China, Croatia, Cyprus, Egypt, France, Hungary, Iran, Israel, Italy, Lithuania, Malta, Pakistan, Poland, Romania, Russia, Slovenia, Tunisia, Turkey and Ukraine.51 Particular mention needs to be made of the agreements that Greece has concluded with Albania, which, especially in the 1990s, was the principal country of origin of the immigrants.52 Although immigration was mainly through land boundaries, and for this reason is not relevant to the focus of the present study, a few of the Albanian immigrants have been reported arriving by sea in little speed boats through the Ionian Sea and heading to the north-west coast of Greece or to the island of Corfu. In the struggle against this kind of irregular migration, in 1992 Greece and Albania concluded a police cooperation agreement53 that, in Article 4, includes the obligation to readmit persons who illegally cross the borders of the other contracting party, as well as their nationals who reside illegally in the territory of the other country. Later, in the framework of the good relationships set forth with the friendship, cooperation, good neighbourliness and security agreement signed in 1996, the two countries also concluded a Protocol for strengthening cooperation between the Greek coastguard and the Albanian police for the effective supervision of the portion of the sea between the two countries.54 Moreover, it shall be considered that Greece profits from the readmission agreement concluded by EC with Albania in 2006 that entered into force on 1 May 2006.55 The cooperation agreements initiated by Greece on a wider scale include the ratification, on 11 January 2011, of the 2000 Palermo Convention against transnational organized crime and the ratification of its two Protocols on smuggling and trafficking in human beings. More recently, on 3 March 2011, Greece has signed – but has not yet ratified – the 2002 Optional Protocol to the UN Convention against torture.

51 See EMN, Practical Measures for Reducing Irregular Migration, Greece National Report, March 2012, p. 27, at where are also specified the acts through which Greece has given internal execution to the above mentioned agreements. 52 About the relationship between Greece and Albania, see General Secretariat of Public Order, Ministry of Interior, Recommendations and best practices on return and readmission, Aeneas Program, Athens, September 2008; T. Maroukis & E. Gemi, ‘Circular Migration Between Albania and Greece: A Case Study’, Metoikos Project, EUI, 2011 at . 53 Greece implemented the Agreement by Act No. 2147/1993. 54 See the Protocol between the Minister of the Merchant Navy of the Hellenic Republic and the Minister of Internal Affairs of the Republic of Albania for the cooperation between the Hellenic Coast Guard and border police of Albania in the effective supervision of the sea among the two countries, signed in Tirana on 19 December 2005, executed by Greece with Act No. 3540/2007, Gov. Gazette A’ 46. 55 See Agreement between the EC and the Republic of Albania on the readmission of persons residing without authorization, Luxembourg, 14 April 2005, OJ 2005 L 124/22.

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2  The Action of Greece and Spain against Irregular Migration by Sea However, it is significant that Greece has not ratified the Protocol No. 4 to the ECHR,56 which, in its Article 4, forbids collective expulsion of aliens, or the 2005 European Convention on action against trafficking in human beings.57 Particularly interesting, in the light of the serious economic crisis engulfing Greece, is its attempt to find financial resources that have become essential for the implementation of any migration policy. With this intent, in the framework of the Action Plan on Migration Management that Greece presented to the EC,58 Greece announced its willingness to sign bilateral agreements with countries of origin and to develop repatriation programmes within the framework of the International Organization for Migration (IOM). With this aim, on 31 July 2012 Greece signed with IOM a grant agreement for the implementation of voluntary returns, including reintegration measures. The IOM project will assure 10 million euros to Greece and will allow it to offer migrants the opportunity of returning home in a safe and dignified manner. The programme is also intended to facilitate the reintegration of migrants through the provision of a small reinstallation allowance for all returnees and reintegration plans for most vulnerable groups. Assisted voluntary returns from Greece are also funded by European Economic Area (EEA) Grants59 and by the UK Border Agency. Greece has also started a dialogue with other Mediterranean countries (Cyprus, Italy and Malta) that share the need for dealing with migration flows arriving by sea. Together with those states, a common initiative has been formalized in a paper of 13 January 200960 that addresses the issue from the perspective of the countries of south Europe with the intention of putting pressure on EU institutions to develop a common response. With special reference to the need for rescuing persons at sea, the four countries declared their willingness to continue to overstep their responsibilities when necessary with a view to saving lives at sea and wish that other EU Member States too shoulder part of this burden by assuming long-term responsibility for some of the persons rescued, particularly in the context of rescues conducted during Frontex operations.

56 57 58 59

Greece and UK are the only two EU countries that have not ratified the Protocol. The Convention has been only signed by Greece on 17 November 2005. See press release MEMO/10/450, 27 September 2010. In November 2011, Greece signed a Memorandum of Understanding with the Member States of the European Economic Area (EEA) in order to provide 20 million euros to support programmes relating to the management of migratory flows. See Memorandum of Understanding of November 2011 on the Implementation of the EEA Financial Mechanism (2009-2014) between Iceland, The Principality of Liechtenstein, The Kingdom of Norway and The Hellenic Republic. 60 See .

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Simone Marinai 2.5 Migration by Sea towards Spain Concerning Spain, it should be stressed that migratory flows arriving by sea have become relevant particularly during the middle of the first decade of the 2000s. According to data with the Ministry of the Interior of Spain, the number of arrivals by sea is reported to have been about 18,000-19,000 per year in the first three years of the millennium; in 2005-2006, the number of arrivals peaked at about 39,000; subsequently, the flows gradually dropped to 3,632 in 2010, before recording a mild increase to 5,443 arrivals in 2011.61 In the next few paragraphs it will be observed that this trend of migratory flows is closely related to the cooperation mechanisms developed by Spain that have also caused a change in the routes chosen by immigrants and, at the same time, in the techniques used to get to Spanish shores. In origin, the flows proceeded essentially from Morocco and from the enclaves of Ceuta and Melilla. The cooperation strengthened with this country produced in 2005 a reduction of 40% of the arrivals from Morocco and pushed migrants to mainly choose, as new starting point of their journey, the shores of western Africa and, as elective destination, the Canary Islands.62 The awareness of the high likelihood that boats could be caught by Spanish authorities induced the organizers of the trips to choose less expensive craft (diminishing the potential losses in case of their seizure) and to force the migrants to operate the vessel themselves, avoiding the risk of being caught by the Guardia Civil. The new strategies found by traffickers have had the effect of provoking an increase in the risks posed to the lives of migrants. The boats are less safe, the drivers have no experience in sailing and, what is more, the new routes are longer and force them to cross the open sea, with all the risks that follow from that.63 The substantial reduction in the flows arriving by sea has been assured through a sensitive mix of measures to provide a global approach to irregular migration. However, the phenomenon has certainly not disappeared; indeed, it has recently registered a mild increase in arrivals by sea, especially through the Strait of Gibraltar and the other domains of Spain on the Moroccan coast. In this respect, the events that occurred at the end of August 2012 deserve special mention: 87 immigrants swam across to the Isla de Tierra, a small uninhabited Spanish island that is part of the Alhucemas archipelago, located 300 m from 61 See . 62 See M.A. Acosta Sánchez & A. Del Valle Gálvez, ‘La crisis de los cayucos. La Agencia europea de fronterasFrontex y el control marítimo de la inmigración clandestina’, Tiempo de Paz, No. 83, 2006, p. 19; P. Garcìa Andrade, ‘Extraterritorial Strategies to Tackle Irregular Immigration by Sea’, in B. Ryan & V. Mitsilegas (Eds.), Extraterritorial Immigration Control. Legal Changes, Martinus Nijhoff Publishers, Leiden, 2010, p. 311 and, in particular, p. 319. 63 See J. Carling, ‘Migration Control and Migrant Fatalities at the Spanish-African Borders’, IMR, Vol. 41, No. 2, 2007, p. 316 and, in particular, pp. 328 et seq.; Garcìa Andrade 2010, p. 317.

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2  The Action of Greece and Spain against Irregular Migration by Sea the Moroccan coast, and after a few days, almost all of them were returned by the Spanish authorities to Morocco, an action that was immediately objected to by non-governmental organizations (NGOs) that accused the European country of infringing the prohibition of collective expulsion.64 2.6 The Treatment of Immigrants and Asylum Seekers Arriving in Spain by Sea Immigrants arriving in Spain by sea, after being caught by the Spanish authorities, shall be sent to a retention centre for foreigners, following an order of the investigating judge. The law specifies that the retention centres do not have a detention character and the internment is only intended as a precautionary measure pending the implementation of the expulsion procedure.65 According to recent data with the Spanish Minister of Interior, the average duration of the stay in the centres is about eighteen days.66 However, the stay may in no case last longer than sixty days, after which the immigrants must be released. This happens, e.g., in case the Spanish authorities are unable to expel the immigrant, lacking his (or her) documents or lacking a readmission agreement with the country of origin or provenance of the immigrant. In that event, the immigrant falls in a sort of legal limbo, because he (or she) has to leave the retention centre, but still remains on Spanish territory in an irregular position and often without documents. This involves several problems at the humanitarian and social levels although certain NGOs and the social services of the Autonomous Communities usually give them some form of aid.67 At the beginning of 2012, there were twelve holding centres (six in the peninsula and six in the Canary Islands) capable of receiving 4,116 immigrants.68 The law provides that the following rights should be granted to immigrants: the right of being informed about their condition, the right of respect for their human life and their health, the right to be facilitated in the exercise of all the rights guaranteed by the legal 64 See Report of Migreurop for the Human Rights Commission[er] of the Council of Europe, The Protection of Migrants Rights in Europe: Spain, November 2012, p. 8. About the episode see also A. Zijlstra, Question for written answer to the European Commission, European Parliament, E-007851/2012, 5 September 2012, and Answer given by Ms. Malmström on behalf of the European Commission, E-007851, 15 October 2012. 65 See Arts. 62 et seq. of Ley Orgánica No. 4/2000 of 11 January 2000, concerning the rights and the liberties of aliens in Spain and their social integration, as amended by Ley Orgánica No. 2/2009 of 11 December 2009. 66 See Comparencia del señor Ministro de Interior (Fernández Díaz) para informar sobre las líneas generales de la política de su departamento. A propuesta del Gobierno (No. of file: 214/000006), Comisión de Interior, Session No. 2 (extraordinary) of 31 January 2012, in Cortes Generales, Diario de sesiones del Congreso de Diputados, No. 29, 2012, p. 2 and, in particular, p. 8. 67 See Report by A. Gil-Robles, Council of Europe’s Commissioner for Human Rights, on his visit to Spain, 10-19 March 2005, CommDH(2005)8, 9 November 2005, paras. 82-83. 68 See again Comparencia, note 66 above, p. 8.

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Simone Marinai system, the right to legal, medical and linguistic assistance, the right to access to their families and to come into contact with NGOs.69 Despite these provisions, there is no hiding the fact that the conditions of stay inside the retention centres are often inadequate. In general, a tendency has been observed to give priority to the security and police controlrelated measures inside the centres, while it would be more logical for police custody to be carried out from outside the facilities by assigning the role of coordinating the living activities to the personnel specialized in social intervention.70 With regard to single centres, serious shortcomings have been recorded in access to legal assistance and also repeated refusals to give NGOs access to the centre without being told the reasons.71 In other cases, the facilities have been considered poor and standards of hygiene unacceptable. For these reasons, the Council of Europe Human Rights Commissioner and the Spanish Ombudsman have recommended the immediate shutdown of some of them.72 Meanwhile, in June 2012 the centre of Capuchinos near Málaga was closed owing to the ruinous state of its installations. As regards asylum seekers, their number in Spain is particularly low, and only a small percentage of the requests are accepted. According to UNHCR, this is due to the difficulties of obtaining asylum compared with the relative ease of obtaining a residence permit; moreover, Spain is a relatively new destination for asylum seekers compared with other traditional immigration countries; and finally, lack of information, lack of access to legal assistance and other difficulties involved in lodging an application for asylum also explain the low percentage.73 Furthermore, it should be noted that the number of arrivals in Spain is constantly decreasing with a consequent diminishing effect on the number of asylum seekers. With regard to the Canary Islands, also during the period of migratory wave, the number of applications for asylum was low comparing to arrivals. For example, in 2008, 356 applications were presented in the Canary Islands, while the arrivals were about 8,300.74 69 See Ley Orgánica No. 4/2000, Art. 62bis. In order to improve the functioning of the reception centres and the statute of the immigrants interned, a project of regulation has recently been drafted and is available at . For a comment, see Consejo General del Poder Judicial, Informe al Proyecto de Real Decreto por el que se aprueba el Reglamento de funcionamiento y régimen interior de los Centros de Estancia Controlada de Extranjeros, Madrid, 20 December 2012. 70 See Defensor del Pueblo, Informe anual a las Cortes Generales, 2011, at , p. 288 71 See CommDH(2005)8, para. 85. 72 See CommDH(2005)8, para. 114; Defensor del Pueblo, Informe anual a las Cortes Generales año 2010, at , pp. 395-396. 73 See CommDH(2005)8, p. 33. 74 See A.M. Gallagher, J. Riera & M. Riiskjaer, Refugee Protection and International Migration: A Review of UNHCR’s Role in the Canary Islands, Spain, PDES/2009/01, UNHCR, April 2009, pp. 8-9 at . See also Council of Europe Committee on Migration, Refugees and Population, The Interception and Rescue at Sea of Asylum Seekers, Refugees and Irregular Migrants, Rapporteur A. Díaz Tejera, Doc. 12628, 1 June 2011, para. 13.

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2  The Action of Greece and Spain against Irregular Migration by Sea The above-mentioned problems that, in many cases, have been registered relating to the treatment of the immigrants who are held inside the Spanish retention centres can be transposed to asylum seekers who, for their particular conditions, need even more appropriate protection and legal information. With regard to arrivals by sea, the right to have access to the territory for people seeking international protection should be considered a question that is still open. The obligation of non-refoulement does not necessarily entail the right of the immigrant to disembark in the state, nor that that state is automatically responsible for examining the asylum application. Instead, the state under whose jurisdiction the migrant entered should guarantee him (or her) not to be returned directly or indirectly to the countries where he (or she) risks being subject to torture or other inhuman or degrading treatments.75 According to UNHCR, there is not much clarity about procedures applied by Spanish authorities to pateras and cayucos found in international waters and about how the possible international protection is afforded before the return to the last country of transit takes place.76 The joint patrols in the territorial waters of the countries of origin77 could represent a risk for asylum seekers and for the respect of the non-refoulement principle. In fact, it shall be considered that the Geneva Convention relating to the status of refugees cannot be invoked until the seekers are out of their national country.78 Particular problems also concern the joint operations headed by Frontex under Spanish command off the western Africa coasts. It seems that in 2008, during the joint operation Hera, 5,969 migrants have been returned to the shores of Senegal and Mauritania. However, the procedure adopted for the return is not clear; in particular, it is not clear whether Spanish, Senegalese and Mauritanian authorities have guaranteed the respect of the human rights of those migrants. As the procedures of interception at sea are not plain, it is not possible to know how the boats loaded with migrants have been diverted from their original route and returned to the coast. It is not possible to know if they have been granted the possibility to apply for asylum and, in general, which treatment has been reserved for the transferred people. Sources of Frontex say that Mauritanian or Senegalese officers have always been present on board Member States’ boats, but Spain and other Member States remain responsible for guaranteeing the respect of human rights during those operations.79

75 European Commission, SEC(2007) 691, 15 May 2007, p. 10. 76 See Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report, Universal Periodic Review, Spain, November 2009, p. 5. 77 See para. 2.9 below. 78 See Garcìa Andrade 2010, p. 322. 79 See Committee on Migration, Refugees and Population, Doc. 12628, p. 15.

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Simone Marinai 2.7 The Cooperation Mechanisms Developed by Spain: the Defensive Approach The struggle led by Spain against irregular migration by sea took account of the evolution of migratory flows.80 In origin, as we have already observed, the flows proceeded essentially from Morocco and from the enclaves of Ceuta and Melilla. For this reason, in a first moment – mainly since the 1990s – Spain concentrated its efforts on cooperation with Morocco. In this context the 1992 Agreement concluded with that country for the readmission of irregular immigrants needs to be mentioned.81 Through that agreement, the two countries have agreed to readmit third-country nationals provided it has been proved that they come from the territory of the request state. Also, the two countries accept the transit through their territory of third-country nationals who have been expelled by the other country provided that the latter ensures that the prosecution of the journey and the admission in the state of destination are fully guaranteed. Although the agreement is silent with respect to the readmission of Moroccan nationals, this obligation arises from customary law. In practice, it seems that the readmission of Moroccan nationals is usually accepted. On the contrary, Morocco has often refused readmission of immigrants coming from other sub-Saharan countries, pleading lack of sufficient proof that the migrant who reaches Spanish coasts has started his journey from Morocco.82 It is noteworthy that Morocco for a certain period of time, at least until 2004, repeatedly claimed that the 1992 Agreement was not binding anymore, probably due to the change in the conditions that were present at the moment of its conclusion. In particular, at the beginning of the 1990s, Morocco was essentially a country of origin of migratory flows, while in the following years, it became a country of transit of migrants coming from other parts of Africa. However, it is significant that Morocco never availed itself of the procedure for the denunciation of treaties provided by the 1969 Vienna Convention on the law of treaties. During certain periods of diplomatic tensions with Spain, the level of cooperation in the readmission has been low83; nevertheless, sometimes Morocco has accepted the return of third-country nationals not according to the 1992 Agreement, but taking into account the improvement of the relations with Spain or for exceptional reasons of solidarity. 80 About the Spanish policy on migration control, see A. Kreienbrink, ‘Spain. Country Profile’, Focus Migration, No. 6, 2008 and, in this book, V.L. Gutiérrez Castillo, ‘The Struggle Against Irregular Migration by Sea at the Canary Islands’, para. 1. 81 Madrid, 13 February 1992, BOE 100, 25 April 1992, p. 13969. For a commentary see, I. González García, ‘El Acuerdo España-Marruecos de readmisión de inmigrantes y su problemática aplicación: las avalanchas de Ceuta y Melilla’, Anuario Español de Derecho Internacional, Vol. 22, 2006, p. 259. 82 See Carling 2007, p. 323. 83 See, e.g., the impact of the diplomatic tensions between the two countries under the José María Aznar government, as stressed by J.P. Cassarino, ‘Informalising Readmission Agreements in the EU Neighbourhood’, The International Spectator, Vol. 42, 2007, p. 179 and, in particular, p. 184.

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2  The Action of Greece and Spain against Irregular Migration by Sea Regarding the enclaves of Ceuta and Melilla, until the end of the 1980s it was quite easy to cross their borders, but since then the borders have been more protected through barbed wire, cameras and sensors until the recent construction of fences at several points of the two cities. However, these walls were not difficult to climb over, and in SeptemberOctober 2005, hundreds of people attempted to cross the frontiers at the same time; many of them succeeded, but Spanish authorities opened fire, injured hundreds of migrants and killed fourteen of them. It seems that Moroccan authorities removed many of those immigrants, taking them aboard buses or trucks, leading them to other regions of the country, in the middle of the desert, leaving them to their fate, without food and water, with the intent to push them to cross the border with Algeria or with Mauritania and to come back to their country of origin.84 In 2003, Spain also concluded with Morocco an agreement intended to contribute to the struggle against trafficking and smuggling of human beings. In virtue of this agreement, the two countries started to organize joint patrols in the vicinity of the Canary Islands and of the Strait of Gibraltar. This new kind of cooperation produced in 2005 a reduction of 40% of the arrivals from Morocco and pushed migrants to choose other routes (in particular, Mauritania and Senegal).85 The cooperation against the organized crime involved, inter alia, in irregular migration and trafficking in human beings, was later strengthened through a police agreement signed in February 2012 by the Ministers of Interior of the two countries, in order to create two joint police stations (which became operational in May 2012) in the Spanish (Algeciras) and Moroccan (Tangiers) territories and to cooperate by exchanging operational data and best practice between different police services.86 The above-mentioned change in the migratory routes determined Spain to enhance cooperation with other countries of origin. Accordingly, Spain has since concluded readmission agreements with Algeria, Cape Verde, Gambia, Guinea Bissau, Mauritania, Morocco, Nigeria and Republic of Guinea. Other readmission agreements have been concluded with European or South American countries.87 It is noteworthy that in many cases (Gambia, Guinea Bissau, Mauritania, Republic of Guinea) a poor degree of cooperation has been reported in the implementation of those kinds of agreements or even that the agreement is not yet effective (Cape Verde).88

See CommDH(2005)8, p. 39. See Garcìa Andrade 2010, p. 319. See, Frontex, FRAN Quarterly, issue 2, April-June 2012, p. 27. See the agreements concluded with Bulgaria, Colombia, Dominican Republic, Ecuador, Estonia, France, Italy, Latvia, Liechtenstein, Lithuania, Peru, Poland, Portugal, Republic of Macedonia, Romania, Slovakia and Switzerland. 88 For more detailed data concerning the readmission agreements see, EMN, Programmes and Strategies Fostering Assisted Return and Reintegration in Third Countries, Spain, September 2009, at . It is noteworthy that only a few of the mentioned agreements have been published in the Spanish official journal (BOE). 84 85 86 87

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Simone Marinai Not all the readmission agreements follow the same pattern. For example, while the agreement concluded with Guinea Bissau89 concerns the readmission of nationals of states parties alone, the agreement with Mauritania is characterized by the readmission of third-country nationals too.90 In that case, it is provided a duty of readmission when it is possible to demonstrate that the migrant transited through the territory of the requested state; instead, a specific agreement is required when it is only possible to presume the passage through the territory of the requested state. Mauritania posted at the Canary Islands special teams charged with easing the identification operations of migrants lodged on its coasts and who, for this reason, are subject to be returned according to the readmission agreement referred to.91 The agreement also stands out because it refers to the obligations of the parties to respect fundamental rights. In fact, the parties agree to avoid the use of force, torture and other cruel, inhuman and degrading treatments. This commitment is mentioned with regard to the entire application of the agreement, and consequently it shall be applied also with regard to readmission procedures of third-country nationals although it is underlined and specified especially with regard to the readmission of nationals of the other state party.92 The first period of the Spanish policy in the struggle against irregular migration is therefore characterized by a pronounced security focus, basically directed to strengthen the frontier controls and to conclude agreements with origin and transit countries with the intent to obtain the readmission of immigrants who reach Spain. In this perspective, the choice of Spain, to provide itself with an advanced technology for the localization of small boats full of migrants, plays a key role. For this purpose, Spain has developed the so-called SIVE (Sistema integrado de vigilancia exterior) that allows the Guardia Civil to identify arrivals well in advance far from Spanish shores, and also when the boats are out of its jurisdiction. The SIVE has been operational since 1999 in the southern coasts of Spain and in the Strait of Gibraltar; later, it was extended to the Canary Islands and will be integrated into the European Border Surveillance System (EUROSUR).93 89 Madrid, 7 February 2003, BOE 74, 27 March 2003, p. 120129. 90 Madrid, 1 July 2003, BOE 185, 4 August 2003, p. 30050. It shall be considered that Mauritania is not only a country of origin of migratory flows, but also a transit country. Mauritania is party to the Treaty of the Union of the Arab Maghreb (1989) that established a system of free movement of persons, services, goods and capital. Mauritania was also a member of ECOWAS until 1999, with the consequent acceptance of the duties of free movement derived by that organization. Notwithstanding the withdrawal of Mauritania from ECOWAS, the nationals of Member States of that organization still enter and stay in Mauritania if they hold the necessary documents. See S.N.M. Saleh, ‘Migration en Mauritanie, Profil National 2009’, prepared for OIM, Geneva, 2009, p. 78. 91 See M. Hernando de Larramendi & A.I. Planet, ‘España y Mauritania: Sáhara, pesca, inmigración y desarrollo en el centro de la agenda bilateral’, Documentos CIDOB, Mediterráneo y Oriente, No. 16, 2009, and in particular p. 43. 92 See Art. XXIII of the Agreement. Similar provision is also included in the Agreement concluded with Guinea Bissau (Art. XIX). 93 See European Commission, COM(2011) 873, 12 December 2011.

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2  The Action of Greece and Spain against Irregular Migration by Sea The introduction and the progressive improvements of the technology at issue have contributed to the update of the techniques used by migrants for getting to Spanish shores.94 The readmission agreements that have been concluded, although useful to foster the return of migrants who reached Spanish territory irregularly, have not been able to solve the ‘problem’ at its origin. Migratory flows continued, and trend to grow. Instead of leaving the Mediterranean coasts of Morocco, the flows proceeded basically from the shores of western Africa and were directed mostly to the shores of the Canary Islands. 2.8 The New Approach Launched by the Plan África A turning point in the Spanish policy concerning the struggle against irregular migration is represented by the Plan África (2006-2008)95 adopted by the Council of Ministers on 19 May 2006. Through that plan, a global approach to irregular migration has been provided. To this end, besides the measures taken to improve the returns, it is stressed the relevance of the cooperation to the development and of the conclusion of second-generation agreements on migration. The following Plan África (2009-2012)96 renews the commitment of Spain to developing a migration policy coherent and coordinated with the countries of origin and that is supported with increasing financial resources. In particular, Spain concluded second-generation framework agreements with six countries of origin: Cape Verde,97 Guinea,98 Guinea Bissau,99 Mali,100 Niger101 and the Gambia.102 Similar agreements have also been planned with Cameroon, Ghana, Ivory Coast, Nigeria, Senegal.103 These agreements follow a similar structure. They provide for improved access to work for the nationals of the other state party, taking account of the respective need of the labour market. The voluntary and assisted return is fostered through projects of social and economic development, able to ease the integration of people in the country of origin. For this purpose, these agreements state, among other things, the realization of plans of specific professional training, the grant of the expenses of return, mechanism for the instant assistance and care for nationals who returned voluntarily, microcredit lines, campaigns of disseminations of the programmes of voluntary and assisted return, cooperation in the development of the capabilities in order to ease the reintegration in the social context. 94 See para. 2.5 above. 95 . 96 . 97 Madrid, 20 March 2007, BOE 39, 14 February 2008, p. 8028. 98 Conakry, 9 October 2006, BOE 26, 30 January 2007, p. 4155. 99 Bissau, 27 January 2008, BOE 134, 3 June 2009, I, p. 46508. 100 Madrid, 23 January 2007, BOE 135, 4 June 2008, p. 25633. 101 Niamey, 10 May 2008, BOE 160, 3 July 2008, p. 29198. 102 Banjul, 9 October 2006, BOE 310, 28 December 2006, p. 45914. 103 See Plan África (2006-2009), p. 72.

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Simone Marinai Efforts are also provided for contributing to the economic development of the state that negotiates with Spain, the struggle with poverty, the support to public migratory policies directed to manage migratory flows in an orderly and cooperative manner. Towards this goal, e.g., is emphasized the strengthening of the information services concerning legal channels of migration and the risks of irregular emigration, the features of the country of destination, its labour market, its life and work conditions, the mechanism of training that should consider the need of the labour market of the destination state and that should also allow one to understand the language of that state. With regard to the cooperation in the struggle against irregular migration and trafficking and smuggling in human beings, the new generation agreements provide reciprocal assistance in relation to data exchange, a strengthening of the capabilities needed, technical assistance, training for consular personnel charged with tasks in migration matters, technical support for granting the security of national identity documents, and campaigns against the specific risks of irregular migration. Specific duties are arranged in case of readmission of irregular immigrants who are nationals of a state party. However, the readmission procedures are regulated in depth in the annex to the respective agreement.104 Thus, it shall be observed that the main goals of the second-generation agreements concluded by Spain with the countries of origin are to help to reduce the reasons that induce migration and to provide incentives for the return. However, the new strategy undertaken did not entail that Spain dropped out the measures of surveillance. Indeed, those latter have been enhanced to prevent migrants from approaching the Spanish coasts and deserve specific attention. 2.9 The Joint Surveillance of the Coasts of the Country of Origin Organized by Spain Since 2006, Spain has developed advanced cooperation mechanisms with the intent to allow the joint surveillance of the shores from where the migratory flows originate. The joint surveillance shall be carried out, e.g., through the organization of joint patrols, the posting of (military, consular or administrative) personnel, the dispatch of craft or other military material, the organization of training programmes, the exchanging of operational information and best practices, etc. Depending on the case, Spain has developed this kind of cooperation with various African countries, such as Cape Verde, Gambia, Guinea Bissau, Mauritania, Morocco, Republic of Guinea, Senegal.

104 Only in the case of the Agreement concluded with Mali is the definition of the readmission procedure referred to the conditions that will be established by a bilateral committee created by the same Agreement.

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2  The Action of Greece and Spain against Irregular Migration by Sea It must be underlined that not all the agreements concluded with those countries have been published in the Spanish Boletín Oficial and that, in particular, the memoranda of understanding relating to specific operational aspects of the cooperation are not publicized at all or sometimes only through brief and vague press releases. Turning to the details of the relationships strengthened with some of the African countries mentioned, first of all, the cooperation tools developed with Mauritania and Senegal need to be highlighted. In particular, on 13 March 2006 Spain and Mauritania signed a joint statement that allows cooperation in the training of Mauritanian security bodies, in the construction of a reception centre in Nuadibú and in the realization of maritime joint patrols that started to operate in May 2006. The statement provides, then, the institution of a mixed commission charged with the management of the migratory flows and that convenes twice a year, once in Spain and once in Mauritania. However, a more technical and operative forum (the regional commission of migratory flows) convenes each month in Nuadibú. The contingent of the Spanish army detached at Nuadibú, according to the statement, has dealt with the transformation of an old and derelict school to a centre intended to receive returned migrants. The centre, once built, has been managed by Mauritanian authorities that, notwithstanding the presence of the Spanish Red Cross and of the Mauritanian Red Moon, have not been able to grant sustainable conditions to migrants placed there.105 On 25 July 2007, Spain concluded a bilateral agreement with Mauritania dealing with the regulation and the management of migratory flows of workforce between the two states.106 During the same year, a memorandum of understanding on the struggle against irregular migration and on maritime rescue was signed. The latter represents a framework document that envisaged extending the field of the military cooperation launched with Mauritania since the defence cooperation agreement of 1989. Through this memorandum, Spain supported the opening of an operational centre in Nouakchott for the struggle of irregular migration and for the rescue at sea that should cooperate with the corresponding centre established in the Canary Islands. The defence ministries of the two countries, on the same occasion, also signed a technical agreement relating to military training, research and maritime surveillance through aircrafts. In this framework, Spain committed itself to donating to Mauritania a C-212 Search and Rescue (SAR) aircraft equipped with radar for the maritime surveillance and with night-vision technology.107 The relationships with Mauritania have been strengthened through the conclusion, in July 2008, of a Treaty of Friendship, Neighbourhood and Cooperation, which creates 105 See Hernando de Larramendi & Planet 2009, p. 44. 106 BOE 260, 30 October 2007, p. 44027. 107 See press release at . Other military material and four patrol boats have been donated to Mauritania in July 2006 in the framework of the Atlantis Project: see press release of 26 July 2006 at .

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Simone Marinai an institutional framework that should allow a more continuative cooperation in different fields, including migration.108 With regard to the relationship with Senegal, in August 2006 the Spanish Minister of Interior Affairs agreed with the Senegalese authorities to jointly patrol the Senegalese coasts and, at this goal, to deploy a helicopter and two patrol boats of the Spanish Guardia Civil.109 Nearly on the same days (September 2006), the two countries concluded a memorandum of collaboration on the condition for commissioning joint patrols in the framework of the fight against illegal immigration by sea through the implementation of the Frontex programme. Spain and Senegal, on 5 December 2006, concluded an agreement for cooperation in the protection of unaccompanied Senegalese migrant minors110 and, on the same date, an agreement concerning cooperation in the struggle against the crime that includes irregular migration and trafficking in human beings.111 On February 2009 the Spanish Secretary of the State Security convened with Senegalese authorities the creation of a mixed team of police cooperation with the aim of enhancing the joint response to irregular migration from the shores of the African country.112 On 3 and 4 November 2009 the respective heads of police signed a memorandum of cooperation related to irregular migration, the surveillance of the shores and of the maritime and aerial space, the rescue at sea and the safety of the shipping.113 Cape Verde is another country with which Spain has developed joint surveillance tools. In particular, the joint surveillance of maritime areas under the sovereignty and jurisdiction of Cape Verde has been established through an international agreement published in 2009.114 The joint surveillance is carried on through boats and aircraft of both the contracting parties or with Spanish means that shall necessarily have on board personnel of Cape Verde or with means of Cape Verde with the presence of Spanish personnel. Spain, for its part, commits itself to respecting the laws and regulations of Cape Verde during the operations of surveillance and to respond to requests for assistance proceeding from Cape Verde in the interception of boats suspected to be involved in illegal traffic and smuggling of migrants, drugs and army. Cape Verde should post a liaison officer at the centre of regional coordination of the Canary Islands. The authorities of Cape Verde will have 108 The Agreement does not result published in the Spanish official journal, but notice of its conclusion is available at 109 See press release at . 110 See BOE 173, 18 July 2008, p. 31413. The agreement entered into force on 1 July 2008. 111 See BOE 63, 14 March 2009, p. 25246. The agreement entered into force on 19 February 2009. 112 See press release at . 113 See EMN, Practical Measures to Reduce Irregular Immigration, Spain, December 2011, p. 39, at . 114 Praia, 21 February 2008, BOE 136, 5 July 2009, I, p. 47545. However, the joint patrols started to be operational in March 2007 when a Memorandum of understanding with the same object was signed, but relating to which the Spanish Parliament did not grant its authorization.

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2  The Action of Greece and Spain against Irregular Migration by Sea exclusive competence in the exercise of the right of visit and seizure except for cases allowed by international law. Other agreements to jointly patrol the territorial waters of the African countries of origin have been concluded with Gambia, Guinea Bissau, Morocco and Republic of Guinea.115 In the framework of the joint surveillance instruments developed by Spain, reference shall be made to the Atlantis Project,116 to the Sea Horse Project, to the Cabo Blanco operation and to the Noble Centinella operation. In some cases, they have been financed by the EC, and they have allowed the surveillance and cooperation with a third state of origin of migratory flows (Morocco, Mauritania, Senegal, Cape Verde, etc.). It is noteworthy that, depending on the operation, Spain obtained the cooperation of other EU Member States (Italy, Germany, Portugal, France, etc.) that took part in some of the above-mentioned programmes. 2.10 Specific Problems Deriving from the Activity of the Maritime Patrols Deployed on the High Seas or in the Territorial Waters of Other Countries Taking into account the relevance of migration flows arriving by sea for Greece and Spain, one may ask what contribution the practice carried out by the two countries in question offers to the development of international law concerning the SAR of irregular migrants on the high seas or in the territorial waters of other countries. In fact, it shall be considered – as stressed in another chapter of this book117 – that the international rules on SAR at sea are characterized by many concerns of uncertainty. For instance, the following questions arise: is the obligation to engage in a SAR operation actually fulfilled? How should the concept of distress be interpreted? Is an actual call for help required or is it sufficient to be aware of the likelihood that the vessel will be in need of salvation at some point? Is the state whose ship has saved irregular migrants at sea under an obligation to allow the disembarkation of rescue people in its harbours? In any case, how could the place of safety where the survivors should be delivered be identified? As regards Greece, we have already mentioned the cases denounced by NGOs and reported by the UNHCR, namely that the Greek coast guard would have prevented immigrants from landing on Greek territory and pushed them back into Turkish waters using deplorable practices such as the puncturing of rubber boats or the removal of engines and 115 See press release at ; see also EMN, Practical Measures, note 113 above, pp. 38-39. 116 The operation Atlantis identifies the harbour of Noadibou in Mauritania as the base of the operations of joint patrols. In that harbour is posted a Spanish liaison officer. See . 117 See in this book, J.J. Rijpma, ‘The Patrolling of the European Union’s External Maritime Border: Preventing the Rule of Law From Getting Lost at Sea’, paras. 2.3 et seq.

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Simone Marinai oars.118 Greece never admitted to indulging in such practices, or endorsed it as part of its policy. However, Greece has not concluded agreements to jointly patrol the territorial waters of neighbouring countries from where the immigrants arrive. In particular, regarding its regime of SAR, it shall be taken into account the tension with Turkey that has proposed a formal objection to the reservation made by Greece at the time of the ratification of the International Convention on Maritime Search and Rescue of 1979. In its objection, Turkey recalls that the Annex to the Convention stipulates that each SAR region shall be established by agreement and cannot be declared unilaterally, as Greece is assumed to have done. Turkey, for its part, has unilaterally declared its SAR region, which, according to Greece, overlaps the Hellenic territorial waters.119 Although Greek action in SAR operation is reported to be intensive,120 the difficulty in accessing reliable sources of information121 forces us to especially deal with the Spanish practice. With reference to the latter, it shall be acknowledged that generally Spain has actively engaged in rescue operations even outside its jurisdiction, according to the customary obligation to render assistance to save life at sea, as well as according to the obligations of cooperation deriving from the UN Convention on the Law of the Sea (UNCLOS) and from the SAR Convention. Nevertheless, Spain has sometimes been accused of failing to intervene in a distress situation. This is what happened to the Spanish frigate Méndez Núñez that was deployed, between March and April 2011, in North Atlantic Treaty Organization (NATO) operations off the Libyan coast and was reportedly located around 11 nautical miles from a small rubber dinghy that was in distress after having left Tripoli with 72 people on board. After the Italian Maritime Rescue Coordination Centre (MRCC Rome) was informed of the situation, a general broadcast of the distress calls was made. The Spanish frigate, as well as the other civil and military craft that were located in the vicinity of the dinghy, has been accused of ignoring the boat’s distress calls. The result was that after fifteen days of drifting, only nine survivors were washed up on the shores of Libya. Responding to 118 See Human Rights Watch, Stuck in a Revolving Door, Iraqis and Other Asylum Seekers and Migrants at the Greece/Turkey Entrance to the European Union, November 2008, p. 41; UNHCR, note 15 above, p. 4. 119 See IMO, Matters Concerning Search and Rescue, Including Those Related to the 1979 SAR Conference and the Implementation of the GMDSS. Information on the Implementation of the Cospas-Sarsat System in Greece, Submitted by Greece, Sub-Committee on Radiocommunications and Search and Rescue, 12th session, Agenda item 6, COMSAR 12/6/11, 15 February 2008. 120 See K. Tryfon, ‘The Competence of Hellas on Search and Rescue Items in the Aegean Area’, Review of European Studies, Vol. 4, No. 2, 2012, p. 89. 121 However, periodic reports on stowaway incidents and on unsafe practice associated with the trafficking or transport of migrants by sea are available at IMO web site . Those data, unfortunately, are very concise and are not useful to understand what actually took place in each case.

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2  The Action of Greece and Spain against Irregular Migration by Sea the requests of clarification of the Rapporteur of the Council of Europe’s Committee on Migration, Refugees and Displaced Persons, the Spanish Minister of Defence replied that the frigate had not received any communication from MRCC Rome, had never had any contact at all with the vessel adrift and never was at a distance of 11 nautical miles from it. However, it is significant that the Spanish Minister did not provide the exact position of the frigate when the episode occurred and it is undeniable that the general broadcast of the distress call was launched by the Italian MRCC. Notwithstanding the arguments adduced to justify the conduct of the Spanish craft, the Spanish Minister of Defence has reaffirmed that all Spanish vessels are aware of their relevant obligations under maritime law, including those with respect to rendering assistance to persons or ships in distress, and has recalled that during NATO’s Operation Unified Protector the Spanish frigate actively assisted many vessels in distress.122 On the contrary, an example of a rescue operation carried out by Spain is provided by the case of the Spanish trawler Francisco y Catalina that on 16 July 2006 chanced upon a vessel full of migrants, mostly Eritrean nationals, coming from Libyan shores. The boat was found in the SAR zone of Libya, about 100 miles south of Malta. After the rescue, the Spanish boat laid up for Malta and arrived 18 miles from its shores. Malta, however, denied the permit of entrance, arguing that no imminent danger existed and that the rescue occurred out of its SAR zone. The incident was resolved when Spain decided to disembark the migrants on its own coasts. Spain obtained more cooperation in the Marine I case.123 On 30 January 2007, the Spanish coast guard received a distress call launched by the cargo vessel Marine I that was located in international waters off western African coasts and that carried about 400 migrants. The Senegalese authorities, in whose SAR zone the boat was found, asked Spain to intervene in the rescue operation. Spain gave its help according to the obligations of cooperation deriving from UNCLOS, as well as from the SAR Convention and from Article 33.1 of the Geneva Convention on refugees. Once the rescue operations were concluded, Spain had to face the problems linked to return of the shipwrecked, guaranteeing them the chance to apply for asylum. To this end, Spain obtained that Mauritania allowed the passengers to disembark, but also committed itself to organize in Nouadhibou the service of detention, identification and repatriation of the migrants. By virtue of the control exercised by Spain even inside the Mauritanian territory, the UN Committee against torture considered that the migrants were still under the Spanish jurisdiction124 and that Spain should therefore be held responsible for their human rights protection, including protection from refoulement. 122 Council of Europe Committee on Migration, Refugees and Displaced Persons, Lives Lost in the Mediterranean Sea: Who Is Responsible?, Rapporteur Ms. T. Strik, Doc. 12895, 5 April 2012. 123 About the case, see K. Wouters & M. Den Heijer, ‘The Marine I Case: A Comment’, International Journal of Refugee Law, Vol. 22, No. 1, 2009, p. 1. 124 UN Committee against Torture, J.H.A. v. Spain, 21 November 2008, CAT/C/41/D/323/2007, para. 8.2.

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Simone Marinai More recently, on 11 July 2011, the frigate Juan de Borbón, directed to Libyan coasts in the framework of NATO operations, rescued 114 migrants of sub-Saharan origin (Tunisian, Libyan, Ghanaian) who were on board a vessel that had sailed off the Libyan port of Zawiyah and that had been drifting for four days, with the engine damaged, without water and food. After transferring the migrants who needed urgent medical assistance, the Spanish ship delivered the other 106 migrants to the Carthage of the Tunisian navy off the Tunisian territorial waters, near the town of Zarzis. The cases just recalled are not enough to provide general indications in order to answer the above-mentioned questions related to the SAR international regime. Nonetheless, they might be considered a useful test for interpreting the Spanish approach to the problems that may arise in similar cases. The Méndez Núñez case, although it has been considered to be an example of possible failure to intervene in a distress situation, confirms – through the subsequent statements of the Spanish Minister of Defence – that Spain considers itself bound by the customary obligation of rendering assistance to persons or ships in distress on the high seas. The other cases show the difficulties that may arise in finding a safe place to disembark the immigrants rescued at sea. In fact, states are often reluctant to accept on their territory migrants rescued at sea, even when the latter are found in their SAR zone. In the Francisco y Catilina case, Spain was persuaded to allow the immigrants to disembark on its territory after receiving the refusal of Malta, which argued that there did not exist an imminent danger and that the rescue occurred out of its SAR zone. In the Marine I case, Spain obtained a higher degree of cooperation for the disembarkation on the territory of Mauritania. Spain’s intervention was the consequence of a request from the Senegalese authorities that claimed not to have the means to proceed to the rescue operation. The migrants were transported to Nouadhibou, a Mauritanian city that was considered the nearest port to the incident. However, Mauritania accepted the migrants only after having obtained a commitment from Spain to organize in Nouadhibou the service of detention, identification and repatriation of the migrants. It is also reported that Spain agreed to pay 650,000 euros to Mauritania and ensured that all passengers were repatriated from Mauritania within five days.125 In the Juan de Borbón case, Spain transferred the migrants rescued at sea to the Tunisian authorities, according to an order of the Atlantic Alliance.126 It has not been possible to obtain more details about Tunisia’s decision to accept the migrants on its territory. The cases that we have examined demonstrate that when Spain operates according to its SAR obligations, it often risks being forced to allow the migrants to disembark onto its territory, even when the interception happens far away from the Spanish coast. 125 See Wouters & Den Heijer 2009, p. 2. 126 See the Spanish Ministry of Defence press release of 16 July 2011 at .

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2  The Action of Greece and Spain against Irregular Migration by Sea This is especially the case when a pre-existing agreement with another country of potential destination is lacking. However, it should be considered that Spain, in the framework of its migration policy, has concluded with several African states readmission agreements that may turn out to be useful during its activity of patrolling at sea.127 When Spain intercepts vessels within the territorial sea of those other states, it may avail itself of those agreements to ensure the return of the migrants to the African coasts. Nevertheless, it should be stressed that once Spain has exercised – on the high seas as well as in the territorial waters of another country – its jurisdiction with the aim of intercepting the boats that are probably directed to its shores, its responsibility cannot be considered exhausted with the delivery of migrants to the authority of the coastal state. In fact, Spain also has the duty to respect the obligations deriving from human rights and – if applicable – from the nonrefoulement principle.128 Consequently, it should avoid disembarkation of asylum seekers and refugees recovered at sea in territories where the life or freedom of migrants would be threatened or where the migrants risk being transferred to other unsafe countries. 2.11 Concluding Remarks The joint analysis of the tools adopted by Greece and Spain in the struggle against irregular migration by sea shows how important international cooperation is in this field. Greece has followed mainly a ‘defensive’ approach until now. The agreements that it has concluded at a bilateral level are intended to develop police cooperation with neighbouring countries and to obtain the return of migrants to the country from which they arrived. Significant results in the struggle against migratory flows arriving by sea could only have been achieved with the support of Frontex operations. The problem is that such important aid has not eliminated the flows, but only effected a repositioning of the routes: in fact, the strengthening of the controls at the maritime borders provoked the transfer of the arrivals at the land borders at Evros. The ensuing tightening of surveillance at those borders drove the migrants to again choose the maritime routes. The treatment of immigrants arriving in Greece by sea and, in particular, of potential asylum seekers has proved inadequate. A moderate improvement could have been achieved only with the support of EU institutions that engaged in a dialogue with the Greek authorities for the implementation of the National Plan on Migration Management. The evolution of the Spanish policy against irregular migratory flows arriving by sea represents an acknowledgment of the need to address the cause of the phenomenon and, with 127 See para. 2.7 above. 128 With regard to the different hypotheses and problems that arise in relation to the extraterritorial application of the non-refoulement principle, see M. Di Filippo, ‘L’ammissione di cittadini stranieri’, in A.M. Calamia & M. Di Filippo & M. Gestri (Eds.), Immigrazione, Diritto e Diritti: profili internazionalistici ed europei, CEDAM, Padua, 2012, p. 81 and in particular pp. 94-95 and pp. 105 et seq.

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Simone Marinai this goal in view, to improve the condition of life in the country of origin through the support of programmes of social and economic development, able to struggle with poverty and at the same time to ease the voluntary and assisted return of migrants to their country of origin. This kind of policy may also induce the countries of origin to accept a deeper level of cooperation in strengthening the surveillance of their maritime borders. Thus, it has become possible to organize joint patrols inside the territorial waters of the country from which the flows originate, maintain a detachment of military and consular officers within the territory of the another state, and more closely cooperate in data exchange and in providing technical support. Nevertheless, it should be stressed that the transfer of the controls from the coasts of the destination country to the high seas or to the shores or even to the territory of the country of origin could entail relevant problems from the point of view of the protection of the fundamental rights of migrants. In particular, problems might arise concerning the operations of interception at sea of a boat carrying migrants, with regard to the content of the obligation of rescue in case of distress, the place where the rescued migrants should be disembarked, and the treatment that should be reserved for them.129 Answers to these and other questions that have been discussed in the present chapter might be found through a joint analysis of the obligations deriving from the law of the sea and from the human rights law. In fact, regardless of the maritime zone where the migrants are found, a humane treatment and a systematic respect for their human rights should be guaranteed to them. Further – at least when they are outside the jurisdiction of their country of origin – it should be ensured that the right to seek asylum in conformity with the non-refoulement principle is preserved. An evaluation of the respect of all these standards of treatment demands an adequate chance of control, which, to be effective, needs the willingness of the countries involved to disclose all the tools of cooperation that they enhance (and not only a few of them), and, at the same time, to allow that the concrete practice followed by their administrative and military officers is submitted to the existing international checking systems. The practice that has been taken into account in the present chapter is inevitably fragmentary and is also affected by the difficulty of finding official and reliable sources of information. However, especially with regard to the Spanish action, it has been possible to confirm the commitment of contributing to saving lives of immigrants at sea. At the same time, it has been demonstrated that the rescue at sea is often perceived as problematic because the flag state in case of interception should be ready to reach an agreement with a coastal state if the former is not willing to accept immigrants on its own territory.

129 See Section 2.10 above.

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2  The Action of Greece and Spain against Irregular Migration by Sea To reduce irregular migration by sea, a policy that is apt to bear on the causes of the migratory flows is certainly preferable. Such a policy, however, requires, without any doubt, important economic resources. Greece, in this historical period, is afflicted by the grave economic crisis that makes it difficult to implement a comprehensive strategy against the irregular migration. From this perspective, positively consideration should be given to the attempt to receive grants not only by the EU, but also by the IOM, the UK Border Agency and the EEA countries for the implementation of a voluntary return policy. Neither is Spain passing through a period of economic prosperity. However, it is undeniable that the tools of cooperation that were developed before the crisis deepened have produced positive effects that Spain is still taking advantage of. Another important factor that deserves to be considered in order to better understand the reasons for different results in the action of Greece and Spain against irregular migration is the different geopolitical context that characterizes the countries of origin of the respective migration flows. In fact, the greater ease of Spain in strengthening tools of cooperation with the countries of origin is, at least in part, also likely to be related to the higher level of stability, in general, of African states involved in the departures of the migration flows. Although North and West African states are often marked by internal conflicts,130 it must be underlined their attitude to cooperating within regional organizations. This is what happens, e.g., in the context of Economic Community of West African States (ECOWAS), of which many countries that concluded agreements with Spain in the field of migration policies are members.131 This implies, without any doubt, that Spain faces a more cohesive reality and encounters fewer difficulties in gaining the cooperation of the countries of origin. In contrast, Greece, which already suffers relevant (economic) problems within its borders, should cope – in its external projection – with a more complex context. The political situation of neighbouring Asia Minor and of the Middle East is much more problematic, characterized by continuous conflicts, civil wars and tensions of different kinds and is not really affected by the action of regional organizations able to represent reliable partners with whom establishing a regular dialogue. In conclusion, the action carried out by individual states against irregular migration by sea could be more or less effective depending on the kind of instruments of cooperation that might be strengthened with the countries of origin of migratory flows. Purely

130 See, e.g., the recent crisis affecting Mali relating to which the UN Security Council has adopted Res. 2085 of 20 December 2012. 131 The following countries are members of ECOWAS: Benin, Burkina Faso, Cape Verde, Gambia, Ghana, Guinea, Guinea Bissau, Ivory Coast, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo.

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Simone Marinai defensive instruments may not be really decisive. The deployment of tools of cooperation that address the cause of the phenomenon is needed. However, such a strategy could prove feasible only in cases where the counterpart is willing to enter into dialogue. There is no doubt that the support provided by the EU to the single state will increase the chance of success in this kind of dialogue.132

132 About the new global approach of the EU towards the countries of origin of migration flows, see European Commission, COM(2011) 743, 18 November 2011.

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3

The Struggle against Irregular Migration by Sea at the Canary Islands

Víctor Luis Gutiérrez Castillo* 3.1 Introduction The link between great inequalities in economic development among nations of the world and international migrations is well known. Low levels of economic welfare, political stability and human development in the countries of origin are identified as the main causes of these migrations. But together with these ‘ejection’ factors, which propel so many ­human beings out of their home countries, mostly in Africa, Asia and Latin America, there are also attraction factors, which draw them to the countries of destination, mostly in Europe and North America. The promise of a better life in developed states spread by global media fuels international migrations. Tens of thousands of Africans (men, women and children fleeing their homelands) ­attempt to make the perilous trip from their home countries to Europe every year, seeking refuge, asylum or the achievement of their basic economic rights. Some travel thousands of miles overland, being handed from smuggler to smuggler, ending up at one of many ports in northern Africa, to be packed into makeshift boats and make treacherous sea crossings to European soil, to places such as the Spanish Canary Islands, the Italian island of ­Lampedusa, and tiny Malta, where they hope to either sneak in unnoticed, or, if intercepted, be allowed to stay. Many do not survive the journey. Italy, Spain and Greece, the three states which constitute the southern boundary of the European Union (EU), are disproportionately affected by irregular crossings at their land and sea borders compared with other major EU immigrant destinations like Germany, the UK or the Netherlands, which are geographically situated much farther from migration source and transit countries. Irregular frontier crossing was important as a source of immigration between 2005 and 2008 for Spain, especially affected by irregular entries of Moroccans and Mauritanians through the Strait of Gibraltar1 and the Canary Islands. * 1

Professor of International Law at the University of Jaén. Scientific Council’s Member at INDEMER, Monaco. Spain added a comment regarding Gibraltar at the time of its adherence to the United Nations Convention on the Law of the Sea (UNCLOS, 1982), which is of no legal effect in modifying the terms of the Convention. It does, however, reflect the view taken by Spain on this point, a view that no other signatory to the Convention accepts, or supports. Under the Convention, Gibraltar generates its own ‘Territorial Sea’ of 12 nautical miles (n.m.), or less than 12 as defined by median lines where other States’ coastlines

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Víctor Luis Gutiérrez Castillo Despite the alarm created by the media, there is no doubt that, from a quantitative point of view, illegal immigration arriving by sea is far from being the main source of irregular immigration in Spain. Considering the Atlantic routes, only 8% of illegal entries are made by sea. However, from a qualitative point of view, it is hugely important because of the humanitarian risk to those who choose this method of illegal immigration and also because of the organized criminal activities, such as human smuggling, that it has given rise to, as the large number of potential emigrants in subSaharan Africa has generated a black market. From the humanitarian perspective, the problem of immigrants arriving by sea is significant because of the human tragedy of thousands of immigrants from more than 60  countries worldwide, mostly from Senegal (25.60%), the Gambia (16.96%) and Morocco (10.12%), but also from Mali, Guinea-Bissau and the Republic of Guinea (close to 9%), who risk their lives trying to cross the Atlantic Ocean to the Canary Islands in traditional fishing boats in utterly inhuman conditions.2 The Canary Islands are an archipelago located on the southern border of the EU, which has become an important point of entry for illegal African immigration in the EU; the shortest sea route from the African coast to the Canaries is 60 miles. The reduction of border permeability in the Mediterranean, combined with changes in the inter-African migration system, increased the relative attraction the Islands have as a transit point to the European mainland. For this reason, the Spanish government has intensified the border controls in the ‘hot’ areas and has actively sought the cooperation of neighbouring source and transit countries. Current border control has improved, and compared with the early 2000s, the situation seems to have stabilized. However, fighting irregular immigration at its southern frontier remains one of the main challenges for effective EU border control. This chapter aims to present the scope of the competencies of EU Member States within the framework of the international Law of the Sea when fighting irregular immigration on maritime zones. For that purpose, it will analyse the competencies of Spain over the maritime zones around the Canary Islands.

2

are less than 24 n.m. distant from G ­ ibraltar. This is the case with regard to the North West and South coast of Gibraltar, where the Spanish mainland’s coast lies less than 12 n.m. away from Gibraltar’s, but as far as its East/South East coast is concerned, although the extension up to 12 n.m. of the Convention would be possible, Gibraltar has not yet extended its legal jurisdiction from 3 to 12 miles, as Spain and Morocco each have done (although Spain refuses to accept part of Morocco’s calculation of the median line to the West), so part of the waters to the East/South East coast of Gibraltar remain international waters. In any case, it is open to Gibraltar to annex these waters to its jurisdiction in accordance with its rights under the UNCLOS 1982. F.J. Vélez Alcalde, ‘Pateras, Cayucos and Cross-border Mafias in Africa: Profiting From the Atlantic Routes to the Canary Islands’, Area: Security & Defense, No. 14, 2008 in .

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3  The Struggle against Irregular Migration by Sea at the Canary Islands 3.2 International Law and Migration Control in Spain 3.2.1

General Ideas About State Policy on Migration Control

According to international law, every sovereign state has an inherent right to deny nonnationals entry to its territory, and to grant them access only under conditions it considers favourable to its own interest. The essence of this expression of state sovereignty is the free will of states solely, so free will constitutes the essence of all competencies of control. It is generally accepted that the right of a state to control its own borders by adopting the necessary measures, to grant or deny a person’s entry to its territory and to expel him or her from it, is a fundamental element of state sovereignty. By definition, a migrant is someone who crosses a border to leave the territory of a state and to settle himself in the territory of another. Immigration is illegal if the crossing of the border of a foreign state occurs without fulfilling the legal requirements for entry, which this state has established. A number of rules of the international Law of the Sea, as reflected in customary international law and codified in the 1982 United Nations Convention on the Law of the Sea (UNCLOS),3 constitute the relevant legal regime applicable to questions of migration at sea. The classical approach of the international Law of the Sea is rooted in the question of the so-called jurisdiction, that is, the determination of what state can exercise state powers over ships found in the different spaces in which the sea is divided for the purposes of international law. Within this framework, states decide which should be the most appropriate policies and measures to maintain border control and security, and what modifications should be implemented in order to tackle new problems and challenges. With regard to those policies and measures that are to be implemented on maritime zones under state jurisdiction, there are a certain number of legal and political variables (from the establishment and extension of jurisdictional zones to the material means available for implementing border control and the diplomatic relations with neighbouring countries), which will strongly influence the effectiveness of border control at sea. 3.2.2

External Means of Control over Maritime Zones under State Jurisdiction

From a theoretical point of view, sovereign competencies with regard to border control can be classified into indirect (measures of deterrence) and direct (detention while crossing the border, control of irregular residence and measures of expulsion), which can be both a priori or a posteriori depending on the moment when they are exercised. Additionally, 3

This treaty entered into force on 16 November 1994 and is today (February 2011) binding on 160 States and one international organization (the EU).

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Víctor Luis Gutiérrez Castillo these measures can be classified into external actions (they take place outside the territory of the state) and internal actions (they take place within the territory or spaces under state jurisdiction). This chapter deals with a priori and a posteriori measures of direct control in both their external and internal dimensions. Empirical evidence in this field is abundant and complex. Unilateral acts of states, bilateral treaties or legal measures issued by international organizations (EU, International Maritime Organizations [IMO]) must be taken into account. Among state unilateral acts in maritime border control against irregular immigration, stand out the creation of­ ­jurisdictional areas for the specific purpose of fighting irregular immigration (contiguous zones) and the unilateral definition of the extension of such areas. In this respect, Spain has made use of all competencies granted to sovereign states by the UNCLOS, by exercising her maritime border control competencies over internal waters, territorial sea and contiguous zone. According to Spanish law, such control is carried out by different groups of Spanish police forces, as provided for in the Organic Law 2/1986, of 13 March concerning state security forces,4 whose Article 11.2.b) expressly appoints the Guardia Civil5 for the excercise of maritime border control, especially over the territorial sea. Additionally, according to Article 1 of the Royal Decree 246/1991, of 22 February 19916 that regulates the maritime competencies of the Sea Forces of the Guardia Civil: The duties that the Organic Law 2/986, of 13 March of the State Forces and Corps gives to the Guardia Civil, will be exercised in Spanish maritime waters up to the outer limit of the territorial sea determined in the legislation in force and, exceptionally, outside the territorial sea, in accordance with that set out in international treaties.7 Since 1999, border control over the territorial sea and the application of Spanish immigration law on the Spanish contiguous zone have been actively and consistently carried

4 5

6 7

‘Ley Orgánica 2/1986, de Fuerzas y Cuerpos de Seguridad del Estado’, published in Boletín Oficial del Estado of 14 March 1986. The Civil Guard (Spanish: Guardia Civil) is the Spanish gendarmerie. It has foreign peacekeeping missions and maintains military status and is the equivalent of a federal military-status police force. As a police force, the Guardia Civil is comparable to today’s French Gendarmerie, the Italian Carabinieri and the Dutch Royal Marechaussee, and it is part of the European Gendarmerie. See . ‘Real Decreto 246/1991, de 22 de febrero, por el que se regula el Servicio Marítimo de la Guardia Civil’, published in Boletín Oficial del Estado of 1 March 1991. Original text in Spanish “Las funciones que la Ley Orgánica 2/1986 de 13 de marzo de Fuerzas y Cuerpos de Seguridad del Estado atribuye al Cuerpo de la Guardia Civil se ejercerán en las aguas marítimas españolas hasta el límite exterior del mar territorial determinado en la legislación vigente y, excepcionalmente, fuera del mar territorial, de acuerdo con lo que se establece en los tratados internacionales.”

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3  The Struggle against Irregular Migration by Sea at the Canary Islands out through the Border Surveillance and Control System (Sistema Integrado de Vigilancia Exterior – SIVE), basically an electronic surveillance system that currently includes the south coast of Spain, the Strait of Gibraltar and the Canary Islands. The government has entrusted the management of the Canary Islands Regional Coordination Centre (CCRC)8 to the Guardia Civil, which is carrying out an integrated, multifaceted operation that involves many different actors. The different missions to be coordinated include controlling illegal immigration to the islands, conducting sea patrols in cooperation with the countries in the region, centralizing and distributing the information and intelligence received, coordinating naval, police and customs operations, carrying out maritime search and rescue operations and channelling flows of illegal immigrants to reception centres. Among the many agencies to be coordinated are police corps attached to the foreign service, air–sea groups belonging to the armed forces and Frontex, the national police forces, customs services and a wide range of reception services for immigrants responsible to the Canary Islands Government’s Maritime Safety and Rescue Service and to the Red Cross, as well as other agencies that provide humanitarian aid. Notwithstanding, effective state action in the fight against irregular immigration cannot be carried out without international cooperation and actions coordinated with other international actors. Hence, the Spanish government has developed an intense diplomatic activity (especially from 2005 to 2008) in order to create and maintain cooperation links with countries of origin and transit of migrations in Africa,9 managing to sign several agreements of cooperation and return with Cap-Vert, Mali, Guinea, Guinea-Bissau, ­Nigeria and other states in the region. This has brought a substantial improvement in

8

9

Responsibility for the fight against irregular immigration and for the control of the borders corresponds to the Spanish Ministry of Interior. The CCRC has been assigned to the coordination of the agencies involved, each of which plans and carries out its own operations. Since it does not duplicate the operational structures of these organizations, the CCRC requires only a basic structure for its role as coordinator: a headquarters, a technical office, a communications centre and two operational divisions with liaison officers. Its coordination work essentially consists of command and control functions, the creation of operational procedures and the development of risk analysis F. Arteaga, ‘Maritime Illegal Migration Towards the European Union: The Command and Control Centre in the Canary Islands (Centro de Coordinación Regional de Canarias – CCRC)’, Area Security & Defense del Real Instituto Elcano, No. 54, 2007 in . The Ministry of Foreign Affairs and Cooperation has made a diplomatic effort in West Africa and, under the Action Plan for Africa 2006-2008, new diplomatic delegations have been opened in Cap-Vert and Mali, while those in Ghana, Ivory Coast and Nigeria, and Cameroon and Senegal have been strengthened. With these new capacities, the diplomatic component will be able to support police control and joint naval patrol operations in Senegal, Mauritania and Cap-Vert. However, the flows are very changeable, and it would seem important not to lower our guard and to keep in place a comprehensive mechanism to prevent and react to migratory crises. See European Migration Network, Temporary and Circular Migration: Empirical Evidence, Current Policy, Practice and Future Options in Spain, December 2010. This document is available from .

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Víctor Luis Gutiérrez Castillo the management of border control affairs and a significant reduction in the numbers of ­irregular immigrants arriving at Spanish borders from Africa.10 The Spanish strategy of linking development cooperation with policies to manage and structure migration flows from sub-Saharan Africa is integrated into the Action Plans for sub-Saharan Africa (Plan for Africa 2006-2008 and 2009-2012).11 These plans have seven main goals, which include cooperation for the adequate regulation of flows of migrants in the sub-Saharan region and to combat human trafficking. The measures to be ­implemented in this area in connection with temporary and circular migration include the creation of job centres in African countries and the strengthening of existing ones for proper management of the link between supply and demand, the promotion of employment and job training. In this context of cooperation, the support provided by the EU has been instrumental not only in terms of economic and technical support (e.g. Frontex,12 European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the EU), but also in terms of international political support in the form of pressures on some African states in order to secure their cooperation. For instance, until 2004, Moroccan authorities would refuse to allow the return of irregular immigrants coming from its territory, except in the case they were Moroccans. EU pressures put an end to this lack of cooperation. In the same vein, Morocco changed its visa policy towards sub-Saharan African countries to a more restrictive one following EU and Spanish recommendations.13 To sum up, thanks to the Spanish regulation of maritime zones in the Canary Islands and the active cooperation with African states, such as Morocco, Mauritania and Cap-Vert, the operations zone covers a triangle about 1,500 km long on the two sides from Gran ­Canarias to Cap-Vert and to Senegal, with 580 km between these two countries, making an area of about 425,000 km2, which doubles for search and rescue operations. Air reconnaissance 10 The report from Spanish authorities states that a total of 5,443 migrants were known to have reached ­Spanish territory by sea, including the Canary Islands, in 2011. This represents an increase over 2010 when 3,632 persons are known to have arrived, but represents a substantial reduction in total numbers compared with the peak year of 2006 when over 36,000 migrants reached Spain by sea or by entering the North African territories of Ceuta and Melilla. See and C. González Enriquez, ‘La emigración desde España, una migración de retorno’, Área: Demografía, Población y Migraciones Internacionales de Real Instituto Elcano, No. 4, 2012, in . 11 Action Plan for Sub-Saharan Africa 2006-2008, see and Action Plan for sub-Saharan Africa 2009-2011 and . 12 Frontex (from French: Frontières extérieures for ‘external borders’) is the EU agency for external border security. It is responsible for coordinating the activities of the national border guards in ensuring the security of the EU’s borders with non-Member States. Council Regulation (EC) 2007/2004 established Frontex. The agency started to be operational on 3 October 2005 and was the first EU agency to be based in one of the new EU States – from 2004. See . 13 J. Carling, ‘Migration Control and Migrant Fatalities at the Spanish-African Borders’, International Migration Review, Vol. 41, No. 2, 2007, pp. 316-343.

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3  The Struggle against Irregular Migration by Sea at the Canary Islands shows thousands of cayucos on the coasts. Cayucos are boats that are generally used for fishing, but they can also be used to transport illegal immigrants or provide supplies to the cayucos moving up the coast. The airplanes fly over the maritime and coastal space to spot the boats. Each spotted boat is identified, and, if it is transporting irregular immigrants, its position is reported to the CCRC, which processes and retransmits this information to all the coordination centres. When the naval units intercept a boat inside the territorial waters of Mauritania or Senegal, they inform the authorities, who decide whether to bring the boat back to port or delegate this task to the intercepting units (see Annexe II). 3.3 The Control of Spanish Maritime Borders in the Canary Islands Under international law, as declared by the International Court of Justice,14 every coastal state has a right to extend its sovereignty and jurisdiction over the maritime areas adjacent to its coast up to the maximum extent recognized by international law itself. Generally, distinction has to be made between spaces under sovereignty or jurisdiction of the coastal state on the one hand and spaces beyond state jurisdiction on the other. Internal waters,15 territorial sea, contiguous zone, exclusive economic zone16 and continental shelf17 14 See North Sea Continental Shelf (Federal Republic of Germany v. Denmark), Special Agreement 20 February 1967, 1969 ICJ Rep., p. 51, para. 96; Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Jurisdiction and Admissibility, Special Agreement 1 December 1978, 1978 ICJ Rep. p. 36, para. 86; Territorial and Maritime Dispute (Nicaragua v. Colombia), Application instituting proceedings 6 December 2001, 2001 ICJ Rep. paras 185-188. 15 The marine internal waters are the waters located on the landward side of the baseline from which the territorial sea is measured. The baseline corresponds, depending on the geographical characteristics of the coastline, to the low-water line or, in particular cases, to one or more straight segments that connect some determined points located on land or islands in the vicinity of the coast. The internal waters are subject to the sovereignty of the coastal state. Under the UNCLOS, straight baselines can be drawn in the cases of deeply indented coastlines or fringes of islands (Art. 7), mouths of rivers (Art. 9), bays (Art. 10) or archipelagic States (Art. 47). 16 In the exclusive economic zone, the coastal state enjoys ‘sovereign rights’ for the purpose of exploitation of the natural resources, whether living or non-living, and production of energy from the water, currents and winds, as well as ‘jurisdiction’ with regard to artificial islands, installations and structures, marine scientific research, and protection and preservation of the marine environment. The other States enjoy the freedoms of navigation, overflight and laying of submarine cables and pipelines, and of other internationally lawful uses of the sea related to these freedoms. The breadth of the exclusive economic zone cannot exceed 200 n.m. from the baseline of the territorial sea (Art. 57). The exclusive economic zone is established on the basis of an express proclamation by the coastal state concerned. See T. Scovazzi, ‘Maritime Boundaries in the Eastern Mediterranean Sea’, Mediterranean Policy Program, Policy Brief, GMF, June 2012, p. 2. 17 The continental shelf includes the seabed and subsoil beyond the outer limit of the territorial sea. It is defined as the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 n.m. from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance (Art. 76, para. 1). In the continental shelf, the coastal state exercises sovereign rights for the purpose of exploring it and exploiting its natural resources (Art. 77, para. 1), both mineral and living. The continental shelf does not depend on any express proclamation by the coastal state concerned, but is granted to it ipso iure (Art. 77, para. 3). The rights of the coastal state over the continental shelf do not affect the legal status of the superjacent waters (Art. 78, para. 1), which can be subject to the regime of either the exclusive economic zone or the high seas. See supra idem.

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Víctor Luis Gutiérrez Castillo are among the first category. The high seas18 and the international seabed19 are among the second category. Owing to geographic, historical, economic, strategic and political considerations, Spain is a country closely tied to the sea and strongly committed to the definition and control of its maritime borders. In terms of maritime border control, Spain is also a mixed country with peninsular and insular territory and a coastline about 8,000 km long. Moreover, Spain looks onto one of the most important international straits with a high strategic value, the Strait of Gibraltar. In order to face all these challenges and needs, Spain has established all jurisdictional zones regulated by the UNCLOS. She has internal waters and a territorial sea with a maximum width of 12 nautical miles. She has created a contiguous zone of 24 nautical miles in width, where geographical constraints and the legitimate rights of neighbouring states allow for it. Otherwise, the width of these zones is determined by bilateral treaties or the equidistance line.20 The drawing of the equidistance line, which is the most widely used method by Spain, can be considered as the starting basis for the determination of a specific maritime boundary. In most cases, resort to such a line leads to a delimitation that can be carried out in a precise way. From the logical viewpoint, the best way to determine the equity of a solution is to draw the equidistance line, as a criterion for reference, and then evaluate whether such delimitation does lead to an equitable solution. With regard to these zones, Spanish law does not distinguish between islands and mainland, which generates maritime areas under both Spanish sovereignty and jurisdiction 18 The marine areas located beyond the zones subject to national jurisdiction constitute the high seas, which is defined as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State” (Art. 86). On the high seas, jurisdiction over ships is exercised by the State that has granted its flag to them. The high seas are subject to a regime of freedom that encompasses different activities: “1. The high seas are open to all States, whether coastal or landlocked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and landlocked states: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI [= Continental Shelf]; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2 [= Conservation and Management of the Living Resources of the High Seas]; (f) freedom of scientific research, subject to Parts VI and XIII [= Marine Scientific Research]. 2. These freedoms shall be exercised by all States with due regard to the interests of other States in their exercise of the freedom of the high seas …” (Art. 87). See supra idem. 19 The seabed located beyond the limits of the continental shelf is called the Area and is subject to the special regime of the common heritage of mankind (UNCLOS, Part XI). For geographical reasons, no seabed falling under the Area regime exists in the Mediterranean Sea. In this semi-enclosed sea there is no point that is located at a distance of more than 200 n.m. from the nearest land or island. See supra idem. 20 The equidistance line is the line every point of which is located at the same distance from the nearest points of the baselines from which the breadth of the territorial sea of each State involved in the delimitation is measured. The first step in almost any process of delimitation is the drawing of the equidistance line, even if the final result may be at variance with such a line. See T. Scovazzi, ‘The Importance of the Coastal Configuration in Maritime Delimitations’, Gobernanza Global, ILADIR, No. 1, 2009, p. 2.

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3  The Struggle against Irregular Migration by Sea at the Canary Islands over the Balearic Islands, the Canary Islands, the Island of Alborán21 and the other ­Spanish islands and rocks, situated a few miles away from the northern coast of Africa.22 The position of Morocco is that the Spanish plazas de soberanía (small islands along the African coast or in the Alboran Sea) constitute a colonial occupation and that it has “a legitimate desire to enjoy full sovereignty over the whole of its national territory.”23 The position of Spain is that the Spanish enclaves have a 12-mile territorial sea, as any other part of the national territory.24 The territorial sea areas of the mainland give rise to controversies and delimitation problems with France (Bay of Biscay and Gulf of Lion), Portugal (mouth of the Miño River and mouth of the Guadiana River) and Morocco (Strait of Gibraltar and Mediterranean Coast). So far, the Spanish government has only concluded agreements of delimitation concerning territorial sea and contiguous zone with France (in the Bay of Biscay)25 and Portugal (in the mouth of Miño River).26 Since the territorial sea and the contiguous zone of the Canary Islands imply no delimitation conflict with Morocco or Mauritania, Spain has established both areas of sovereignty and jurisdiction over this archipelago.

21 The island of Alborán (1 km²) and the approximate islet of Las Nubes are located almost in the middle of the Alboran Sea, at about 35 n.m. from the Moroccan and 45 n.m. from the Spanish coasts. They are not inhabited. More information about the legal regime of this island in V.L. Gutiérrez Castillo, ‘Análisis histórico-jurídico de la isla andaluza de Alborán’, Revista Electrónica de Estudios Internacionales, No. 6, 2003, see . 22 The uninhabited islet (or rock) of Perejil, located 10 km west of Ceuta and only 200 m from the Moroccan coast, is considered by Spain as an appurtenance of Ceuta. Vélez de la Gomera (0.2 km²), located 260 km west of Melilla, is attached to the Moroccan coast by a thin sandy isthmus. The fact of being a continental territory and not an islet or a rock could have an influence on the delimitation of the maritime jurisdictional zones pertaining to it. Alhucemas (0.015 km²) is an islet (or rock) situated less than 1 km from the Moroccan coast and 180 km west of Melilla. The uninhabited rocks of Mar and Tierra are found south-east of Alhucemas and almost touch the Moroccan coast. The Chafarinas group (0.747 km²) is composed of the islets (or rocks) of Congreso, Isabel II and Rey. It is located at about 4 km from the Moroccan coast and 80 km east of Melilla. Small Spanish military garrisons are posted on Vélez de la Gomera, Alhucemas and one of the Chafarinas. See V.L. Gutiérrez Castillo, El Magreb y sus fronteras en el mar, Huygens, Barcelona, 2009. 23 S. Ihrai, ‘Le contentieux maroco-espagnol en matière de délimitation maritime’, Annuire du Droit de la Mer, Vol. 7, 2002, pp. 199 and ss. 24 See for Morocco, a statement made on 2 May 1975 (UN, Third United Nations Conference on the Law of the Sea, Official Documents, IV, New York, 1975, p. 76) and, for Spain, Revista Española de Derecho Internacional, 1989, p. 543. 25 The Governments of the French Republic and the Kingdom of Spain negotiated two agreements relative to the delimitation of their territorial sea, contiguous zone and continental shelf boundaries in the Bay of Biscay: Convention between France and Spain on the delimitation of the territorial sea and the contiguous zone in the Bay of Biscay (Golfe de Gascogne/Golfo de Vizcaya) 29 January 1974. The conventions entered into force on 5 April 1975. See Limits in the Sea, No. 83, February 12, 1979. 26 Agreement between Portugal and Spain of 27 March 1893 on Trade and Navigation and Agreement between Portugal and Spain on the Delimitation of the Territorial Sea and Contiguous Zone, 12 February 1976. The first agreement can be found in Colección de Tratados, Convenios y Documentos internacionals de España del Marqués de Olivart, Vol. 10, 1894, Madrid, pp. 403-494. The second agreement can be found in Boletín Oficial de las Cortes Generales, 15 June de 1976.

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Víctor Luis Gutiérrez Castillo As far as the aim of this chapter goes, it is necessary to identify the maritime areas of the Canary Islands over which Spain actually exercises her competences in migration control. To that end, it is necessary to establish first what islands belong to the archipelago. The answer to this question is provided by Article 2 of the Statute of Autonomy of the Canary Islands27: The territory of the autonomous community comprises the Canarian ­archipelago, composed of the seven islands of El Hierro, Fuerteventura, Gran ­Canaria, La Gomera, Lanzarote, La Palma and Tenerife, as well as the islands of Alegranza, La Graciosa, Lobos y Montaña Clara, Roque de el Este and Roque de el Oeste, added administratively to Lanzarote, except Lobos that is added to Fuerteventura.28 Spanish law has chosen a geocentric definition, or otherwise said, it defines the Canary Islands without mentioning that it is an archipelago, a concept that includes the islands and the maritime spaces between and around them, an omission that has raised much criticism among Spanish scholars.29 According to Orihuela Calatayud, there have been two attempts to set right this faulty definition: first, by reforming the Statute of Autonomy and, second, by the application of an archipelagic principle to the Islands.30 3.4 The Canary Islands: Interior or Archipelagic Waters? On 30 December 2010, the Spanish parliament passed the Act 44/2010, concerning the Canary waters,31 intended to be an answer to the political and legal aspirations of the Autonomous Government of the Canary Islands, which had requested the central government since decades to redefine the waters of the archipelago in order to clearly assert 27 Organic Law 10/1982, of 10 August 1982 concerning Statute of Autonomy of the Canary Islands (‘Ley Orgánica de 10/1982 de 10 de agosto, Estatuto de Atonomía de Canarias’) published in Boletin Oficial del Estado 12 March 1997), modified by Organic Law 4/1996, of 30 December 1996 amending Organic Law 10/1982 (‘Ley Organíca 4/1996, de 30 de diciembre, de reforma de la Ley Orgánica 10/1982’) published in Boletin Oficial del Estado of 31 December 1996. 28 Original text in Spanish “El ámbito territorial de la Comunidad Autónoma comprende el Archipiélago Canario, integrado por las siete islas de El Hierro, Fuerteventura, Gran Canaria, La Gomera, Lanzarote, La Palma y Tenerife, así como las islas de Alegranza, La Graciosa, Lobos y Montaña Clara, Roque del Este y Roque del Oeste, agregadas administrativamente a Lanzarote, salvo la de Lobos que lo está a Fuerteventura.” 29 See the Explanatory Memorandum of the Act 44/2010, of 30 December 2010. 30 See E. Orihuela Calatayud, ‘La delimitación de los espacios marinos en los archipiélagos de Estado. Reflexiones a la luz de la Ley 44/2010, de 30 de diciembre de aguas canarias’, Revista Electrónica de Estudios Internacionales, No. 21, 2011, pp. 1-26 see . J. Roldán Barbero, ‘España y el nuevo derech internacional del mar’, in E. Arana (dir.) & A. Navarro (coord.), La ordenación jurídica del medio marino en España. Estudios sobre la Ley 41/2010 de protección del medio marino, Aranzadi, Madrid, 2012, pp. 47-78. 31 ‘Ley 44/2010, de 30 de diciembre, de aguas canarias’, published in Boletin Oficial del Estado of 31 December 2010.

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3  The Struggle against Irregular Migration by Sea at the Canary Islands the Spanish rights over them. Under this national statute, a perimeter line is drawn linking the straight baselines with the base points situated on the outer edge of the islands, as ­indicated on the map attached to the text of the statute (see Annex I). However, far from solving the problem, this statute has raised new questions. How is this perimeter to be defined? What is the legal nature of the waters between the islands? ­Internal waters? Archipelagic waters? The statute provides no answers to these questions, giving rise to still more academic debate: some scholars tend to award the legal nature of internal waters to these areas, while others consider that according to the UNCLOS they are implicitly defined as archipelagic waters, which under a restrictive interpretation of the 1982 UN Convention is impossible since only the waters of archipelagic states may enjoy such a status. The controversy intensifies because of the terminology and wording of the statute. The Spanish law has avoided using the concepts and definitions provided for by the Law of the Sea when referring to the waters of the islands. It could have easily defined them as either internal or archipelagic waters (as defined by the UNCLOS), but it has chosen to remain silent. It only defines them as ‘Canary waters’, without explicitly specifying the rights of the state over them: The waters that are embedded inside this perimeter contour will receive the designation of Canarian waters and constitute the special maritime area of the autonomous community of the Canary Islands.32 The passing of the Canary Water Act 44/2010, of 30 December 2010, gives the Spanish government a new opportunity to reflect on the application of the archipelagic principle with respect to the state archipelagos and to assess the effects and consequences that the application of this Act bring to the struggle against irregular migration by sea. The Spanish action derived from this law joins the action of other mixed states that intend to promote a change in the Law of the Sea, aiming either to extend the scope of the principle for including the archipelagos of states or to favour, also, a change in its regulation. It can be assumed that the wording of the statute is due to political and legal calculations. From a legal point of view, the Spanish government could not possibly define these waters as archipelagic since this would imply a breach of the 1982 UN Convention.33 From a political point of view, defining them as internal waters would have proved to be 32 Original text in Spanish “las aguas que queden integradas dentro de este contorno perimetral recibirán la denominación de aguas canarias y constituyen el especial ámbito marítimo de la Comunidad Autónoma de Canarias.” 33 See M. Lacleta Muñoz, ‘Las aguas del archipiélago canario en el Derecho Internacional del mar actualmente vigente’, Area Documento de Trabajo del Real Instituto Elcano, No. 31, 2005, in .

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Víctor Luis Gutiérrez Castillo rather problematic, since Portugal (Savage Islands) and Morocco would have strongly opposed it owing to the implications for their own maritime areas. In fact, in order to avoid conflict with neighbouring states, the statute explicitly establishes in its Additional Provision that: […] the layout of the perimeter line will not alter the delimitation of the maritime areas of the Canary Islands as defined by Spanish Law according to International Law in force. In any case, it is clear that the ‘Canary waters’ belong to Spain and it is Spain that exercises the relevant competences with regard to immigration and maritime border control. 3.5 The Territorial Sea and the Contiguous Zone of the Canary Islands Since the Act 10/7734 was enacted in 1977, the width of the Spanish territorial sea has extended to reach 12 nautical miles all around the peninsula and the islands, specifying that: The outer limit of the territorial sea shall be determined by a line drawn in such a way that the points constituting it are at a distance of 12 nautical miles from the nearest points of the baselines referred to in the preceding article. This Spanish rule is compatible with international law, as provided for by Article 2, paragraph 1 of the UNCLOS 1982: The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. In addition, the width of the territorial sea cannot exceed 12 n. m. from the baselines from which the territorial sea is measured (Art. 3 UNCLOS).35 This means that for the purposes of immigration at sea, the territory of a state goes as far as the width it has established for 34 Act 10/77 of 4 January 1977 concerning territorial sea, published in Boletin Oficial del Estado of 8 January 1977. 35 The normal baseline of the territorial sea corresponds to the low-water line (Art. 5 UNCLOS). In particular cases, such as deeply indented coastlines or fringes of islands (Art. 7), mouths of rivers (Art. 9), bays (Art. 10) or archipelagic States (Art. 47), one or more straight baselines can be drawn to join appropriate points on land or islands.

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3  The Struggle against Irregular Migration by Sea at the Canary Islands its territorial sea. In Spain, territorial sea is measured from the straight baselines established by the Royal Decree 2510/1977 of 5 August 1977.36 An exception to the rule that the territorial sea is fully subject to the sovereignty of the coastal state is the right of innocent passage that is granted to the ships flying the flag of all states.37 If a foreign ship transporting migrants merely passes through the territorial sea of a coastal state without engaging in any activity that is prejudicial to the peace, good order or security of such state (Art. 18, para. 1), no violation to the immigration legislation of the latter occurs. However, passage cannot be considered innocent if in the territorial sea the foreign ship engages in any of the activities listed in Article 18, paragraph 2 UNCLOS. Such activities also include “the loading or unloading of any […] person contrary to the […] immigration […] laws and regulations of the coastal state.” Accordingly, the coastal state may adopt laws and regulations, in conformity with the provisions of the UNCLOS and other rules of international law, relating to innocent passage through the territorial sea in respect of the prevention of infringement of its immigration laws and regulations (Art. 21, para. 1, h). Foreign ships exercising the right of innocent passage through the territorial sea must comply with all such laws and regulations (Art. 21, para. 4). The coastal state may also take the necessary steps in its territorial sea to prevent passage that is not innocent (Art. 25, para. 1).38 With regard to the question of jurisdiction, Article 27, paragraph 1, UNCLOS provides that: The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage.39 However, this provision allows for four exceptions where the criminal jurisdiction of the coastal state can be exercised. Two of them (“if the consequences of the crime extend to the coastal state” and “if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea”) can easily be applied in cases where illegal immigrants are disembarked within the territorial sea. 36 Published in Boletín Oficial del Estado of 30 September 1977. 37 Art. 17. Right of innocent passage “Subject to this Convention, ships of all States, whether coastal or landlocked, enjoy the right of innocent passage through the territorial sea.” 38 See T. Scovazzi, ‘Human Rights and Immigration at Sea’, Course 2010 Academy European Law, European University Institute, Florence, in press. 39 The conditional mood (‘should not be exercised’) does not contribute to the clarity of this provision.

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Víctor Luis Gutiérrez Castillo The Royal Decree Legislative 2/2011, of 5 September, which approves the text consolidated concerning the national ports and the merchant marine,40 regulates the Spanish contiguous zone. With regard to its geographic scope, Article 8 establishes that: […] contiguous zone means the zone extending from the outer limit of the territorial sea up to a distance of 24 nautical miles from the baselines from which the breadth of the territorial sea is measured […]41 With regard to its legal scope, the Second Supplementary Provision of the statute provides: […] in the contiguous zone defined in article 8.1 of this Act, the Government may take the necessary control measures to: (a) Prevent violations of customs, smuggling, taxation, immigration and health laws and regulations in national territory and territorial waters; (b) Punish such violations.42 It should be noted that the rights recognized by this Provision extend beyond those provided by the UNCLOS, since this Spanish statute includes the right to prevent and sanction smuggling, which is not included in Article 33 of the UNCLOS. So this article provides: […] the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea. Unlike the territorial sea, the contiguous zone does not exist, ipso iure, as a natural prolongation of the land territory of a state, but must be explicitly proclaimed under the domestic legislation of the coastal state concerned. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the width of the territorial sea is measured (Art. 33, para. 2). The contiguous zone is not a part of the territory of the coastal state. The critical threshold by which to determine whether illegal immigration has taken place is the limit between the territorial sea and the contiguous zone, if any (in most cases 12 nautical miles from the coast), and not the limit between the contiguous 40 ‘Real Decreto Legislativo 2/2011, de 5 de septiembre, por el que se aprueba el Texto Refundido de la Ley de Puertos del Estado y de la Marina Mercante’, published in Boletín Oficial del Estado of 20 October 2011. 41 Original text in Spanish “Es zona contigua la que se extiende desde el límite exterior del mar territorial hasta 24 millas náuticas contadas desde las líneas de base a partir de las cuales se mide la anchura del mar territorial.” 42 Original text in Spanish “En la zona contigua definida en el artículo 8.1 de la presente Ley, el gobierno podrá adoptar las medidas de fiscalización necesarias para: a) prevenir en el territorio nacional o en el mar territorial las infracciones de las leyes y reglamentos aduaneros, de contrabando, fiscales, de inmigración o sanitarios. b) Sancionar dichas infracciones.”

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3  The Struggle against Irregular Migration by Sea at the Canary Islands zone and the high seas (in most cases 24 nautical miles from the coast). The control that the state can exercise in this zone is limited to the purpose of preventing or punishing infringements of its immigration laws and regulations that, respectively, are likely to occur or have already occurred within its territory or territorial sea. For instance, the coastal state cannot board a foreign ship that is navigating in its contiguous zone, unless there are clear grounds for believing that it is going to infringe its immigration rules by disembarking illegal immigrants into its territory or territorial sea or that it has already committed such an infringement and is trying to escape from criminal proceedings and sanctions.43 The conclusion reached above is not affected by Article 111, paragraph 1, UNCLOS (right of hot pursuit), which provides as follows: The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. This provision says that a ship found in the contiguous zone can be pursued and arrested on the high seas, but it does not change the condition that must be met to commence the pursuit, namely that there is a violation of one of the rights for the protection of which the contiguous zone has been established. In the case under consideration here, the condition is given by the need to prevent or punish infringements of the immigration laws and regulations occurring within the territory or territorial sea of a coastal state.44

43 T. Scovazzi, ‘Human Rights and Immigration at Sea’, Course 2010 Academy European Law, European University Institute, Florence, in press. 44 Hot pursuit may take place in cases of so-called constructive presence, as envisaged in Art. 111, para. 4, UNCLOS. It occurs where the ship pursued (mother ship), while being outside the contiguous zone, works as a team with one of its boats or other craft that commit the infringement of the immigration law within the territory or territorial sea of the coastal State.

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Víctor Luis Gutiérrez Castillo 3.6 Conclusions International illegal immigration across the southern border of Europe has a dynamic of its own, created by the actions and reactions of those who stimulate it and those who work to suppress it. Until 2005, the flows of illegal emigration from sub-Saharan Africa were directed by land towards the borders of Ceuta and Melilla. The closure of the camps near these Spanish cities after the human avalanches of 2005 shifted the migratory pressure to the west, towards the coasts of West Africa, and to the east, towards the Mediterranean, once again adding to the phenomenon of emigration by sea towards the southern border of the EU. As a result, after a few months of readjustment, in 2006, waves of cayucos (rudimentary boats) were moving towards the Canary Islands, overwhelming the resources of the police and ocean rescue and humanitarian aid agencies that had already had difficulty dealing with the earlier waves.45 In this context, the fight against irregular immigration has taken on a new dimension. The geographical position of the Canary Islands, a few miles away from the western African shore, has brought them to the attention of the immigrant smugglers from sub-Saharan Africa. Spain, a state with a long maritime tradition, has deployed a full set of legal, political and diplomatic measures to maintain control of her maritime borders, especially in the Canary Islands. She has given herself a territorial sea (up to 12 nautical miles) and a contiguous zone (up to 24 nautical miles) all around her territory, including the Canary Islands. These maritime borders are controlled through unilateral measures of policing (SIVE), bilateral cooperation (interstate agreements with Morocco and other countries in sub-Saharan Africa) and regional cooperation (within the EU). The combination of these measures has resulted in a very significant reduction of irregular immigration in the area (as shown by official data) and a more effective control in cooperation with neighbouring countries of the triangle, about 1,500 km long, that extends from Gran Canarias to Cap Vert and to Senegal, with 580 km between these two countries, making an area of about 425,000 km2, which doubles for search and rescue operations. The increasing cooperation between Spain and some of the African states in the interception in origin or transit has altered migration routes. The boats get bigger, the travel time gets longer and more dangerous and the arrival points are no longer selected by reason of geographical proximity. Now Tenerife and Gran Canaria are the main arrival points, and Fuerteventura and Lanzarote are less important.46 45 F. Arteaga, ‘Maritime Illegal Migration Towards the European Union: The Command and Control Centre in the Canary Islands (Centro de Coordinación Regional de Canarias – CCRC)’, ARI, No. 54, 2007, see . 46 Conclusions and recommendations contained in the Report on the situation of immigration in the Canary Islands. Approved by the Committee on European Affairs and action outside of the Parliament of the Canary Islands. March 2012 in .

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Ley 44/2010, de 30 de diciembre, de aguas canarias published in Boletin Oficial del Estado of 31 December 2010

Annex I 3  The Struggle against Irregular Migration by Sea at the Canary Islands

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Víctor Luis Gutiérrez Castillo Annex II

Source: A.L. Mazzitelli, ‘The Challenges of Drugs, Organized Crime and Terrorism in West and Central Africa’, Area: Sub-Saharan Africa del Real Instituto Elcano, No. 43, 2006 in

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4

The Patrolling of the European Union’s External Maritime Border: Preventing the Rule of Law from Getting Lost at Sea

Jorrit J. Rijpma* 4.1 Introduction Over the past decade, the Member States of the European Union (EU) have become increasingly concerned with irregular migration over sea. Even if this form of migration is not the main source of irregular entry in the EU, it is certainly one of the most visible and politicized. Exact figures of the loss of human life and suffering that have resulted from the perilous journeys across the Mediterranean and the Atlantic are difficult to establish, but they are estimated to run into hundreds on a yearly basis.1 Events following the Arab Spring have once again brought the question of irregular landings to the fore.2 Member States have responded to the inflow of irregular migrants and refugees by sea by intensifying maritime border patrols. They have done so either alone, together with other Member States or in cooperation with third countries. Increasingly, the EU has been involved in coordinating joint patrols by Member States’ border guard authorities, in particular, through its agency for the management of operational cooperation at the external borders (Frontex), established in 2005.3 Joint patrols have taken place in the territorial waters of the Member States, the high seas, as well as in the territorial waters of third countries. They are carried out in a complex legal environment of overlapping rules of national, European and international law. Depending on the maritime zone and the factual circumstances in which operations take place, different rules and legal regimes may find application. There is an important tension between the interest of

* 1 2 3

Assistant Professor of European Law at the Europa Institute of Leiden Law School. See for attempts at reporting casualties in a systematic way and (last accessed 1 November 2012). Between January and September 2011, 42,807 persons were recorded as entering Italy illegally by sea: P. Fargues & C. Fandrich, Migration After the Arab Spring, Florence, MPC Research Report 2012/09, 2012, p. 4. Council Regulation (EC) 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ 2004 L 349/1 (‘Frontex Regulation’).

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Jorrit J. Rijpma Member States in controlling their borders, the duty to come to the rescue of those in peril at sea and the need to respect human rights and international refugee law. Continuing disagreement between Member States over the content and interpretation of their obligations has hampered a common approach on joint border patrols at sea. A decision adopted by the Council in 2010 aimed to provide a common interpretation of the relevant rules for the specific situation in which Member States engage in joint controls under the coordination of Frontex.4 This Decision was successfully challenged by the ­European parliament before the European Court of Justice of the European Union (CJEU).5 The case was, however, decided on procedural grounds, leaving doubt as to the merit of parliament’s substantive claims. A judgment of the European Court of Human Rights (ECtHR) six months earlier may be considered of greater importance. In the Hirsi case, the Strasbourg Court ruled on the applicability of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in the context of maritime border controls taking place outside territorial waters.6 This chapter will examine in detail the legal framework for border surveillance at the EU’s external sea borders. Specific attention will be paid to the recent rulings of the CJEU and the ECtHR and the consequences these decisions may have for future initiatives. ­Developments in the European context may inform other jurisdictions and contribute to the development of international (maritime) law. 4.2 Public International Law As a starting point, we will examine the rules of public international law that bind states when carrying out maritime border patrols. States’ interference with ships carrying irregular migrants can take different forms and may take place for different reasons. Within international law, a general distinction is made between a right of visit (also referred to as the right to board or search) and a right to seize (or more generally the right to take coercive measures).7 This chapter will use the generic term interception for such interference, however stressing that this is not a legal concept.8 4 5 6 7 8

Council Decision 2010/252/EU, supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by Frontex, OJ 2010 L 111/20. Judgment of 5 September 2012 in Case C-355/10, Parliament v. Council (Frontex Decision), not yet reported. Hirsi Jamaa and Others v. Italy (Applic. No. 27765/09), Judgment of 23 February 2012. M. den Heijer, Europe and Extraterritorial Asylum, Hart Publishing, Oxford, 2012, p. 210 and D. Guilfoyle, Shipping Interdiction and the Law of the Sea, Cambridge University Press, Cambridge, 2009, pp. 4 and 9. This has been described by the UNHCR as measures aimed to: “i) prevent embarkation of persons on an international journey; ii) prevent further onward international travel by persons who have commenced their journey; or iii) assert control of vessels where there are reasonable grounds to believe the vessel is transporting persons contrary to international or national maritime law where, in relation to the above, the person or persons do not have the required documentation or valid permission to enter; and that such measures also serve to protect the lives and security of the travelling public as well as persons being smuggled or transported in an irregular manner” (Conclusion on Protection Safeguards in Interception Measures, No. 97 (LIV) – 2003). Different terminology has been applied for (elements of) interception, including interdiction and diversion.

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4  The Patrolling of the European Union’s External Maritime Border 4.2.1

1982 United Nations Convention on the Law of the Sea

The most important legal instrument under public international law regulating states conduct at sea is the 1982 UN Convention on the Law of the Sea (UNCLOS). The right of states to exercise jurisdiction over ships at sea differs depending on the maritime zone in which patrols are carried out. 4.2.1.1 Territorial Waters States’ territorial waters comprise 12 nautical miles measured from the baseline. They form an integral part of a state’s territory in which it is sovereign. The only limitation to a coastal state’s powers is found in Article 17 UNCLOS, requiring it to allow the innocent passage of vessels through its waters. Article 19(2)(g) renders passage no longer innocent if a ship attempts to unload passengers contrary to the immigration laws of the Member State. In a 2007 study on the Law of the Sea, the European Commission (EC) advocated an interpretation of this article, which would give a Schengen Member State the right to exercise jurisdiction over ships that pass through its territorial waters with the intent of disembarking passengers in another Member State.9 Since the Member States apply common rules and procedures in controlling the external borders of the Schengen area and the EU has become a party to the UNCLOS, such a broad reading could be justified.10 EU Member States have also acted – alone and under the coordination of Frontex – in the territorial waters of third countries. This has been done on the basis of bilateral agreements under public international law between individual Member States and third countries, often supplemented with practical working arrangements.11 These have entailed so-called ship-rider agreements, under which local officials of the coastal state are present on board a Member State’s vessel, which can therefore be considered to have been placed – at least formally – at the disposal of the third country.12 SEC(2007) 691 final, Commission Staff Working Document, Study on the International Law Instruments in Relation to Illegal Immigration by Sea, p. 12. 10 Reg. (EC) 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ 2006 L 105/1. 11 See, e.g., the Agreement between Spain and Cape Verde: Acuerdo entre España y Cabo Verde sobre vigilancia conjunta de los espacios marítimos bajo soberanía y jurisdicción de Cabo Verde, BOE, No. 136, 5 June 2009, 47545; between Spain and Mauritania (Acuerdo entre el Reino de España y la Republica Islamica de Mauritania en material de inmigración, Madrid, 1 July 2003, BOE, No. 185, 4 August 2003, 30050-30053) and between Italy and Libya (Trattato di amicizia, partenariato e cooperazione tra la Repubblica Italiana e la Grande Giamariria Araba Libica Popolare, text annexed to the law authorizing its ratification and implementation, Law No. 7, 6 February 2009, GU No. 40, 18 February 2009). The Friendship Treaty was suspended in February 2011 following the outbreak of the revolution in Libya. Frontex operations off the coast of Mauritania and Senegal (the so-called HERA operations involving ships from different Member States) have been based exclusively on Memoranda of Cooperation between the Spanish Ministry of the Interior and the Ministries of the Interior of Mauritania and Senegal respectively. These have been regularly renewed. 12 HERA 2008 and NAUTILUS 2008 Statistics (Frontex News Release, 17 February 2009). 9

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Jorrit J. Rijpma 4.2.1.2 Contiguous Zone In addition to the territorial sea, Article 13 UNCLOS allows countries to claim an additional 12 miles of the high seas as ‘contiguous zone’ in which they may assert jurisdiction – yet in which they are not sovereign – to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations. The extent of these powers is disputed. According to some, it may include the power to intercept ships subject to a proportionality requirement.13 Others argue that the powers of the coastal state are limited to a ‘right to approach, inspect and warn’ in order to prevent infringements.14 This was also the approach adopted by the Commission in its study from 2007.15 The Council Decision providing guidelines for Frontex-coordinated joint patrols seems to equate the powers of the Member States in the territorial waters with those in the contiguous zone.16 It is therefore worthwhile to consider what other legal basis there may be for interception on the high seas. 4.2.1.3 High Seas On the high seas, the principle of freedom of navigation (mare liberum), as codified in Article 87(1)(a) UNCLOS, applies. This means that on the high seas, states may exercise jurisdiction only over boats flying their flag or with the permission of the flag state. Paragraph 2 does stipulate that the freedom of navigation is to be exercised with due regard to the interests of other states. UNCLOS grants universal jurisdiction over a number of crimes, such as piracy, slave trade and drug trade. The Convention is silent as regards the smuggling or trafficking of people. It must therefore be assumed that on the high seas, states can intervene only against ships being used for irregular migration with the authorization of the flag state. 4.2.1.4 Stateless Vessels Since irregular migration is often carried out in boats without nationality, specific attention should be paid to the position of stateless vessels. Article 110 UNCLOS allows for the boarding and inspection of a ship that does not fly a flag. Again consensus as to the consequences that may be attached to a finding that a ship is indeed without nationality is lacking. The UNCLOS itself is silent on the matter. According to one view, supported by some judicial authority, only vessels in possession of a nationality enjoy the freedom of navigation and consequently, a flagless ship enjoys no protection.17 The Council and the Commission have endorsed this position.18 13 S. Trevisanut, ‘The Principle of Non-Refoulement at Sea and the Effectiveness of Asylum Protection’, Max Planck Yearbook of United Nations Law, Vol. 12, 2008, p. 233. 14 Den Heijer 2012, p. 221. 15 SEC(2007) 691 final, supra note 9, p. 15. 16 Part I, point 2.5.1, Decision 2010/252/EU, supra note 4. 17 H. Lauterpacht (Ed.), Oppenheim’s International Law, Longmans, London, 1948, p. 546. See the Ruling of the Privy Council in Naim-Molvan v. Attorney General for Palestine [1948] AC 351. See in the context of irregular migration: Tribunale di Crotone, 27 September 2001, Pamuk et al., quoted in Rivista di diritto internazionale, Vol. 84, 2001, p. 1155. 18 Council programme of measures to combat illegal immigration across the maritime borders of the EU (Council Document 13791/03); SEC(2007) 691 final, supra note 9, p. 17.

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4  The Patrolling of the European Union’s External Maritime Border Another view holds that different connecting factors for the exercise of jurisdiction over the ship need to be taken into consideration, such as the nationality of the owner or the passengers on board.19 It would be correct to distinguish between the exercise of jurisdiction over the stateless vessel itself and the passengers on board.20 As regards the vessel, a finding of statelessness should allow states to exercise jurisdiction in order to ensure compliance with the ‘minimum public order at the high seas’, namely, the duties that normally fall on the flag state (Art. 94 UNCLOS).21 This could include a state’s power to escort the vessel to its harbour for inspection. As regards the people on board, UNCLOS does not seem to provide a basis for the exercise of jurisdiction. 4.2.2

Palermo Protocol on Migrant Smuggling

All Member States, as well as the EU, are party to the Palermo Protocol on Migrant Smuggling, which is annexed to the UN Convention against Transnational Organized Crime (UNTOC). The Protocol does not confer universal jurisdiction over human smuggling, but rather prescribes contracting parties to criminalize human smuggling.22 Article 3(a) of the Protocol defines smuggling as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.” Consequently, the act of smuggling does not require the actual illegal entry of the person. This could, however, lead to questions of evidence before national courts.23 Moreover, international law does not prevent states from sanctioning human smuggling outside its territory as an offence under domestic legislation. For instance, the Spanish Criminal Code includes irregular migration in the list of offences covered by universal jurisdiction.24 French law establishes

19 I. Shearer (Ed.), O’Connell’s the International Law of the Sea, Clarendon Press, Oxford, 1984, pp. 755-757 and R. Churchill & A. Lowe, The Law of the Sea, Manchester University Press, Manchester, 1999, p. 214. 20 See E. Papastavridis, ‘Enforcement Jurisdictions in the Mediterranean Sea: Illicit Activities and the Rule of Law on the High Seas’, International Journal of Marine and Coastal Law, Vol. 25, 2010, p. 585, who distinguishes between jurisdiction in personam and in rem. 21 Ibid., with reference to the Special Rapporteur of the ILC, J. François, ‘Regime of the High Seas, Draft Articles, A/CN.4/79, Section II’, in Yearbook of the International Law Commission, Vol. I, United Nation, New York, 1955, p. 26. 22 Art. 6 UNCTOC. The crimes defined on the basis of this article fall under the scope of the UNTOC: Art. 1(3). See for a different view: Den Heijer 2012, p. 227. 23 See however, the ruling of the Spanish Tribunal Supremo (Penal Section), No. 618/2007, 26 June 2007, pp. 4-5, which without much motivation stated that an intercepted cayuco, a traditional boat commonly used by irregular migrants destined for the Canary Islands, was “undoubtedly” heading for Spanish territory and that its purpose to enter illegally was “evident.” 24 Art. 2, ‘Ley Orgánica No. 13/2007 para la persecución extraterritorial del tráfico ilegal o la inmigración clandestina de personas’, BOE, No. 278, 20 November 2007, 47334 amending the ‘Ley Orgánica 6/1985 del Poder Judicial (LOPJ)’, BOE, No. 157, 2 July 1985, 20632, see Art. 4(g).

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Jorrit J. Rijpma jurisdiction over ships on the high seas, which are bound for their territory, or that of the Member States, with the purpose of disembarking their passengers irregularly.25 Article 8 of the Protocol provides that contracting parties may request the assistance of other contracting states in suppressing the use of vessels for migrant smuggling that are either stateless or of the nationality of the requesting state. A contracting party may also request authorization from a flag state to board and search a vessel that it can reasonably suspect of being engaged in migrant smuggling. Upon authorization from the flag state, it may take appropriate measures as regards the people and cargo on board. Where there is a reasonable suspicion that a vessel is engaged in migrant smuggling and is without nationality, a state party may board and search the vessel. If the suspicion is confirmed, it shall take appropriate measures in accordance with relevant domestic and international law. Although Article 110(1) UNCLOS expressly allows for ground of interference to be established by Treaty, the Protocol only seems to impose a duty of cooperation on the contracting parties, maintaining the requirement of flag state authorization. Article 8(7) of the Protocol provides a stronger legal basis for interference with stateless vessels than Article 110 UNCLOS. The wording “suppressing the use of the vessel” or “take appropriate measures” implies the possible use of force. Still, such force should be used as a means of last resort and will be subject to the requirement of necessity and proportionality.26 It is doubtful whether the Palermo Protocol provides a sufficient legal basis for the exercise of criminal jurisdiction over the people on board stateless vessels other than the smugglers themselves.27 It should be recalled that Article 5 of the Protocol prohibits the criminalization of smuggled persons. Moreover, the people on board have not yet committed the offence of irregularly entering. Although Article 16(5) refers to the detention of smuggled persons, implying this is a possibility, it does not itself provide a legal basis for such detention.28

25 In the case of ships with a nationality, the authorization of the flag state is still required: Art. 12, ‘Loi No. 2005-371 modifiant certaines dispositions législatives relatives aux modalités de l’exercice par l’Etat de ses pouvoirs de police de mer’, JORF, No. 95, 23 April 2005, amending Title III of ‘Loi No. 94-589 relative aux modalités de l’exercice par l’Etat de ses pouvoirs de contrôle en mer’, JORF, No. 163, 16 July 1994, 10244, see Arts. 19 and 22. This can be compared to the approach adopted in USA law in relation to the trafficking of drugs destined for the USA: Maritime Drug Law Enforcement Act 1986, 46 USCA §1903. 26 This was established in cases such as the ‘I’m Alone’ (RIAA, Vol. III, 1935, p. 1609) and Red Crusader (35 ILR 1962, p. 485). See also M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea) case, 1 July 1999, ITLOS, Judgment, para. 155. 27 In fact, the Spanish Supreme Court already ruled in a series of Judgments from 2007 to 2008 that Spain had jurisdiction on the basis of Art. 8(7) of the Palermo Protocol read together with Art. 23(4)(h) of the LOPJ, which grants Spanish Courts jurisdiction over crimes that must be tried by Spain on the basis of international agreements. 28 Den Heijer 2012, p. 229; V. Moreno-Lax, ‘Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea’, International Journal of Refugee Law, Vol. 23, 2011, p. 92.

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4  The Patrolling of the European Union’s External Maritime Border 4.2.3

The Search and Rescue Regime

Many of the boats that are used for irregular migration are unseaworthy and/or overloaded and, as a result, are at risk of perishing at sea. This brings into play the international rules on search and rescue at sea, which apply irrespective of the jurisdictional maritime zone in which the boat finds itself, the nationality of the boat or its passengers and circumstances in which they are found. The customary obligation to render assistance to save life at sea is laid down in Article 98 UNCLOS and fleshed out in the Convention adopted under the auspices of the International Maritime Organization (IMO). These are the 1974 Convention on Safety of Life at Sea (SOLAS Convention) and the 1979 Search and Rescue Convention (SAR Convention). A further obligation can be found in the 1989 International Convention on Salvage. On the one hand, Article 98(1) UNCLOS requires the contracting states to impose an obligation, under domestic law, on the ship master to render assistance to those in peril at sea. Article 10(1) of the Salvage Convention places such an obligation directly on the shipmaster. On the other, Article 98(2) UNCLOS requires contracting states to establish and maintain the necessary infrastructure for search and rescue operations. Where necessary, they must do so under mutual regional cooperation arrangements with neighbouring countries. Coastal states are thus subject to obligations of ‘conduct and cooperation’.29 The SOLAS Convention elaborates on these obligations in Chapter V, Regulation 7, which requires contracting states to “ensure that necessary arrangements are made for distress communication and co-ordination in their area of responsibility and for the rescue of persons in distress at sea around its coasts. These arrangements shall include the establishment, operation and maintenance of such search and rescue facilities as are deemed practicable and necessary.” Paragraph 3.1.7 of the SAR Convention stipulates that each contracting state must allow its rescue co-ordination centres to provide assistance to other rescue co-ordination centres, also in the form of technical and human resources. On the basis of the SAR Convention the world’s oceans have been divided into thirteen search and rescue areas, which in turn have been divided into search and rescue regions for which individual countries are responsible. These do not correspond to the maritime zones and do not affect in any way the delimitation of state boundaries. Rescue operations are coordinated by Rescue Coordination Centres in the respective search and rescue region. The EU as such has no competence in the area of search and rescue and is therefore not part of any of the above conventions. It is important, however, to stress that the

29 E. Papastavridis, ‘Rescuing “Boat People” in the Mediterranean Sea: The Responsibility of States Under the Law of the Sea’, European Journal International Law Analysis, 31 May 2011, available at (last accessed 1 November 2012).

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Jorrit J. Rijpma masters of Member States’ ships deployed in the context of joint patrols coordinated by Frontex are covered by the obligations from these conventions. A problem with the search and rescue regime is the lack of a common interpretation of the rules contained in the conventions. For instance, the UNCLOS does not define distress. The SAR Convention describes it as “a situation wherein there is a reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance” (Annex 1.3.11). The assessment is left to the shipmaster. Case law and academic commentary seem to indicate that although distress must ­entail urgency, it does not require “immediate physical necessity.”30 As stated in the arbitral decision on the Kate A. Hoff, a ship need not be “dashed against the rocks” before a claim of distress can be invoked.31 The obligation on a shipmaster to come to the rescue is not made dependent on an actual call for assistance. The SOLAS Convention for instance refers to an obligation to render assistance upon “receiving information from any source” that there is a distress situation. Likewise, it must be argued that where a coastal state becomes aware of a distress situation – independent of whether an actual call has been made – it is under an obligation to engage in a search and rescue operation. Also, the Council Decision of 2010 stipulates that the existence of a request for help does not exclusively determine the existence of an emergency.32 Some Member States, however, do not consider a ship to be in distress unless there is an actual call for help or there is an immediate danger to the health and safety of the people on board. Other Member States, as a general rule, intervene in the case of unseaworthy ships, taking into account the likelihood that such a vessel will be in need of salvation at some point. An equally pressing concern as regards the application of the search and rescue regime concerns the disembarkation of rescued people and the extent of the obligations of Member States as regards rescued persons. On more than one occasion, states have refused a ship that had saved irregular migrants and asylum seekers at sea to dock in its harbours. Two amendments to the SAR and SOLAS Conventions were adopted to address this issue.33 Article 4.1-1 SOLAS, as amended, now reads: “The Contracting Government responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and co-operation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the [IMO].” Article 3.1.9 SAR, as amended, is drafted in identical terms. 30 England High Court of Admiralty, The Eleanor [1809] Edw., p. 135. 31 General Claims Commission United States and Mexico, Opinion rendered 2 April 1929, Kate A. Hoff v. The United Mexican States, Reports of International Arbitral Awards, p. 444. See also The Yearbook of the International Law Commission, Vol. II, 1973, p. 134, para. 4. 32 Part II, point 1.4. Decision 2010/252/EU, supra note 4. 33 MSC Res. 153(78) and 155(78), MSC 78/26/Add. 1, Ann. 3 and 5 respectively.

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4  The Patrolling of the European Union’s External Maritime Border A set of Guidelines on the Treatment of Persons Rescued at Sea was adopted together with these amendments. The purpose of the amendments is to ensure that in each situation a place of safety is provided within a reasonable time. In the accompanying guidelines, a place of safety has been defined as “a location where rescue operations are considered to terminate”.34 It is also a place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met. ­Further, it is a place from which transportation arrangements can be made for the survivors’ next or final destination. The responsibility to ensure that a place of safety is provided falls on the contracting party responsible for the search and rescue region in which the persons were rescued. This does not mean that the contracting party responsible for the search and rescue region is also under an obligation to disembark survivors in its territory. In fact, Member States have proven much more willing to engage in rescue operations, saving also people against their express will, when a place of safety in a third country is readily available. As a result, search and rescue operations allegedly have become a form of concealed interception.35 Two EU Member States, Finland and Malta, have objected to the amendments of the SAR and SOLAS conventions. Malta has argued that the nearest port of safety should be taken as a central concept. It has argued that the current rules are unclear as to the responsibilities of contracting parties who are not responsible for the search and rescue region in which the rescue has taken place, but who are geographically close by.36 Malta’s position is understandable considering the breadth of its SRR and the fact that many search and rescue operations have taken place either outside Malta’s search and rescue region (i.e., the Libyan search and rescue region) or within its region, yet close to Italian territory (i.e., off the coast of the island of Lampedusa). The Council Decision of 2010 states that priority should be given to disembarkation in the third countries from whose shores the ships have departed or through whose waters the ship has passed. If this is not possible, disembarkation should take place in the Member State that hosts the joint operation.37 Malta’s stance in relation to the existence of a distress situation and the designation of a place of safety lead it to withdraw from participation in Frontex-coordinated operations in response to the adoption of the Council Decision. Strictly speaking, the guidelines are non-binding and would allow for different arrangements to be laid down in the so-called operational plan, determining the modus operandi of the operation. Although the precise legal nature of this plan under EU law remains unclear, it seems clear that all Member States, by subscribing to the plan, intend it 34 Guidelines on the Treatment of Persons Rescued at Sea, adopted together with the Amendments: MSC Res. 167(78), MSC 78/26/Add.2, Ann. 34. 35 This may to some extent also explain the ‘success’ of Frontex-coordinated operations in the Atlantic off the coast of Senegal and Mauritania (‘HERA operations’). Also, Italy has maintained that when it intercepted boats coming from Libya, it actually was engaged in search and rescue operations. 36 See the comments submitted by Malta to the IMO Sub-Committee on the Flag State, 27 February 2009. 37 Point 2.1, Part II, Decision 2010/252/EU, supra note 4.

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Jorrit J. Rijpma to have binding legal effect.38 In any case, the continued disagreement amongst Member States remains an obstacle to the organization and planning of Frontex joint operations at sea. What may be of greater concern is that the functioning of the search and rescue regime in the Mediterranean has come under serious strain. On the one hand, there have been reports of migrants purposefully creating distress situations in order to be rescued. On the other hand, assistance by Maltese patrol vessels has been refused when the intended destination was Italy. In the latter situation it is unclear whether there exists a duty to engage in a search and rescue operation. In the case of human smuggling, especially by means of a stateless vessel, an appeal to the freedom of navigation would seem unjustified in any case. However, a ‘forced rescue’ would presumably entail some degree of force to be used against the passengers on board. As was examined above, there is no clear legal basis in the UNCLOS or the Palermo Protocol for the exercise of jurisdiction over the people on board other than over the smugglers. The disagreement over the rules for disembarkation may also disincline shipmasters to come to the rescue of people in peril at sea.39 Another discouraging factor may be the risk of being prosecuted for human smuggling if the genuine nature of the search and rescue operation is put into question.40 4.2.4

The Right to Request Asylum and the Obligation of Non-Refoulement

The legal framework for maritime border controls is further complicated by the ‘mixed’ character of boat migration in general and across the EU’s southern maritime border in particular. This means that amongst irregular migrants on board there are people who have well-founded claims for asylum or are entitled to some other form of international protection. This brings into play a second set of obligations, namely the rules on asylum 38 An explicit reference to the plan has now been included in Art. 3a of the Frontex Regulation. The Dutch government, which previously limited its participation in Frontex-coordinated operations to the territorial waters of the Member State from which the operation was launched, now makes its participation conditional upon an inclusion in the operational plan that it will not be responsible for asylum claims: letter from the Dutch Minister of Justice to Second Chamber of Parliament, Document No. 21 501 - 28, No. 61, 3 September 2010. 39 See the report of the CoE Committee on Migration, Refugees and Displaced Persons, Lives Lost in the Mediterranean Sea: Who Is Responsible?, Rapporteur Strik, 5 April 2012, Doc. 12895. Not only did various Member States’ vessels employed in a NATO operation off the coast of Libya fail to respond to calls for help from a boat carrying 72 passengers, but also two commercial vessels failed to intervene. Listen also to the BBC documentary The Left to Die Boat, available at (last visited 1 November 2012). 40 See the case of the Cap Anamur, ‘Italy Holds Migrants Ship Captain’, BBC News, 12 July 2004, and the case of seven Tunisian fishermen: F. Vassallo Paleologo, ‘Agrigento – Processo ai pescatori tunisini. Una sentenza contraddittoria’, Melting Pot Europe, 18 November 2009 (last visited 1 November 2012).

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4  The Patrolling of the European Union’s External Maritime Border and international protection, laid down in the 1951 Geneva Convention on Refugees and the 1967 Protocol to this Convention. Within the territorial sea, the coastal state will be responsible for any asylum claims made by people intercepted. In the EU, the rules of the Dublin Regulation will also apply in territorial waters, meaning that asylum seekers intercepted in the territorial waters of a Member State are the prime responsibility of that Member State.41 In addition, a proposed amendment to the Procedures Directive serves to clarify that the Directive applies also in the territorial waters of the Member State.42 The Directive would, however, not apply on the high seas. This is in line with the opinion of the United Nations High Commissioner for Refugees (UNHCR) that status determination should not take place on board vessels.43 The Geneva Convention and most instruments of international law do not provide for a right to be granted asylum, but rather for a right to request asylum.44 Article 33(1) of the Geneva Convention does contain a clear prohibition of expulsion or return (obligation of non-refoulement), meaning that no one shall be expelled or returned to a place where his or her life would be threatened. Article 18 of the EU’s Charter of Fundamental Rights contains a right to asylum, although in the explanation relating to the Charter, reference is made to the Geneva Convention. At the same time, the Qualification Directive clearly sets out the conditions under which a person is to be granted asylum status or refugee protection, and, as such, one may argue that a right to asylum exists under EU law, when the conditions of this directive have been fulfilled.45 The Council Decision of 2010 reiterates that joint operations shall be conducted with respect to the principle of non-refoulement.46 It is silent, however, as regards the responsibility for asylum claims lodged with Member States participating in a joint operation. Generally, this responsibility has been determined in advance in the operational plan. The proposal for a recast of the Procedures Directive states in Article 4(4) that applications for 41 Council Regulation (EC) 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a thirdcountry national, OJ 2003 L 50/1 (‘Dublin Regulation’). 42 Art. 3(1), COM(2011) 319 final, Amended Proposal for a Directive on minimum standards on procedures in Member States for granting and withdrawing international protection. 43 The UNHCR’s standpoint is that the identification and subsequent processing of asylum seekers is most appropriately carried out on dry land: UNHCR Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea (Geneva, 1 March 2002). This also seems to follow from Art. 35(5), Council Directive 2005/85/EC on minimum standards on procedures for granting and withdrawing refugee status, OJ 2005 L 326/13 (‘Procedures Directive’). 44 M.-T. Gil-Bazo, Refugee Status, Subsidiary Protection, and the Right to Be Granted Asylum Under EC Law, Oxford Legal Studies Research Paper No. 54/2006, p. 7. 45 Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ 2011 L 337/9 (‘Qualification Directive’). Compare the CJEU’s approach to Family Reunification in Case C-540/03, Judgment of 27 June 2006, Parliament v. Council [2006] ECR I-5769, para. 60. 46 Part I, point 1.2, Decision 2010/252/EU, supra note 4.

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Jorrit J. Rijpma international protection made in one Member State to the authorities of another Member State carrying out border or immigration controls shall be dealt with by the Member State in whose territory the application is made.47 Although the Procedures Directive does not apply beyond the territorial waters, some Member States equate their ships with national territory. More importantly, most claims will be lodged only once on mainland, which explains again the reluctance of Member States to allow for disembarkation in their territory. Most authors agree that the prohibition of non-refoulement also applies to the high seas, thus prohibiting the diversion of ships back to unsafe third countries.48 Whenever a person is outside his country of origin, the non-refoulement principle is deemed applicable. In contrast, state practice has often denied extraterritorial effect to the principle of non-refoulement. This was for instance the case with the US interdiction programme that aimed to prevent the entry of Haitian refugees.49 Although the US Supreme Court did not find this to be in violation of the principle of non-refoulement, the Inter-American Commission of Human Rights, when seized of the matter, did.50 Member States have been reluctant to engage in diversions on the high seas. Where they have, such as Italy under its Friendship Treaty with Libya, these interceptions were carried out as search and rescue operations.51 However, the rules on search and rescue and the refugee law may apply simultaneously. States can relieve themselves of their obligations by labelling an operation as search and rescue. The IMO Guidelines on the treatment of persons rescued at sea state that “[d]isembarkation of asylum-seekers and refugees recovered at sea, in territories where their lives and freedom would be threatened should be avoided”.52 This approach is confirmed in the Frontex Regulation and the Council Decision of 2010.53 Member States have also diverted ships in the contiguous zones and territorial waters of third countries, generally with the express consent of the coastal state. Again, these interceptions have generally been carried out under the guise of search and rescue operations. A reason for acting in the territorial waters of a third country could be that nationals of 47 Amended Proposal, supra note 42. 48 See for an extensive discussion T. Gammeltoft-Hanssen, Access to Asylum, Cambridge University Press, Cambridge, 2011, Chapter III. 49 See also the Australian cases Minister for Immigration and Multicultural Affairs v. Ibrahim [2000] 174 ALR 585, para. 136 and Minister for Immigration and Multicultural Affairs v. Khawar and Others [2002] 187 ALR 574, para. 42, as well as statements in 2005 by the German Ministry of the Interior, quoted in A. FischerLescano et al., ‘Border Controls at Sea: Requirements Under International Human Rights and Refugee Law’, International Journal of Refugee Law, Vol. 21, 2009, p. 265. 50 Sale Acting Comr, Immigration and Naturalization Service v. Haitian Centres Council Inc. [1993] 509 US 155; Case 10.675, The Haitian Centre for Human Rights et al. v. United States, Report No. 51/96, Inter-AmCHR, OEA/Ser.L./V/II.95 Doc. 7 rev. (1997), para. 157. 51 See below, para. 2.5. 52 The UNCHR and IMO have together published a leaflet for shipmasters summarizing the legal framework: Rescue at Sea: A Guide to Principles and Practice as Applied to Migrants and Refugees, available at (last visited 1 November 2012). 53 Point 1.1., Part 1, Decision 2010/252/EU supra note 4 and Art. 2(1bis) Frontex Regulation, supra note 3.

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4  The Patrolling of the European Union’s External Maritime Border the coastal state will not be able to invoke the Geneva Convention, since the Convention requires the asylum claimant to have left his country.54 Many of the people on board ships heading for the EU do not, however, possess the nationality of the third country from which they set sail. More importantly, other human rights instruments may find application outside the territory of the contracting parties and apply to these people. Treaties such as the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) and, most importantly in the European context, the ECHR, all contain provisions that are relevant in cases of refoulement.55 In addition, these instruments may serve to protect other rights, which could be violated in the course of patrols at sea, such as the right to life and the prohibition of torture.56 They are therefore of importance in assessing the legality of maritime border control operations in general. 4.2.5

International Human Rights Law at Sea

A number of cases have shown that Member States remain bound by their obligations under international human rights law independent of the nature and location of their intervention. In the Marine I case, Spanish human rights organizations brought several complaints against Spain before the Committee against Torture regarding the reception and treatment of a number of irregular migrants who had been rescued in the Atlantic and had subsequently been returned to Mauritania. Although the case was declared inadmissible because the complainants could not be considered to have been duly authorized to represent the alleged victims under Article 22(1) CAT, the Committee did note that Spain exercised control over the irregular migrants from the time of their rescue and throughout their detention in Mauritania, triggering Spain’s responsibility under the CAT for their treatment.57

54 Definition of “refugee”, Art. 1A(2), 1951 Geneva Convention. See also the ICJ’s judgment of 20 November 1950, Colombia v. Peru (Asylum Case), General List No. 7, 1949-1950. Cf. the concurring opinion of Judge Pinto de Albuquerque in the Hirsi case, supra note 6. 55 See in more detail: M. den Heijer, ‘Whose Rights and Which Rights? The Continuing Story of Non-Refoulement under the European Convention on Human Rights’, European Journal of Migration and Law, Vol. 10, 2008, pp. 277-314. 56 There is a growing body of literature and reports on human rights and refugee law in the framework of border controls at sea, see R. Weinzierl, The Demands of Human and EU Fundamental Rights for the Protection of the European Union’s External Borders, GIHR, Berlin, 2007; Trevisanut 2008, pp. 205-246; Fischer-Lescano et al. 2009, pp. 256-296; Gammeltoft-Hanssen 2011; Moreno-Lax 2011, pp. 174-220; CoE Parliamentary Assembly, The Interception and Rescue at Sea of Asylum Seekers, Refugees and Irregular Migrants, Rapporteur Díaz Tejera, 1 June 2011, Doc. 12628. 57 J.H.A. v. Spain (Marine I Case), Committee against Torture, 21 November 2008, Communication No. 323/2007.

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Jorrit J. Rijpma In this section the focus will be on the case law on the ECHR in view of its special ­position in the Union legal order.58 Although the ECtHR has held that the notion of jurisdiction in Article 1 of the ECHR, determining the scope of application of the Convention, is essentially territorial, it explicitly recognized the possibility of extraterritorial application in specific circumstances.59 As early as 1975 the European Commission of Human Rights established that a state’s jurisdiction encompasses “all the persons under their actual authority and responsibility, whether that authority is exercised on its own territory or abroad”.60 In Loizidou, the ­ECtHR added that the concept is not limited to the national territory of the contracting states, holding that “a state may also be held accountable for violation of […] rights and freedoms of persons who are in the territory of another State but who are found to be under the former State’s authority and control through its agents operating – whether lawfully or unlawfully – in the latter State”.61 In Issa, it furthermore made clear that Article 1 could not “be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory”.62 Focussing on contracting states’ actions at sea, there are a number of relevant cases. In Xhavara and others, the court was asked to consider the case of an Albanian boat that capsized in the Canal of Otranto after colliding with an Italian warship that had attempted to make it change its course. Although the court held that the case was inadmissible for the non-exhaustion of local remedies, it clearly stated that the contracting parties were bound to protect the lives of those falling within their jurisdiction.63 This implies that the victims were indeed considered to be falling under Italian jurisdiction, notwithstanding the fact that the shipwreck took place in international waters.64 In Banković, the court acknowledged the possibility of extraterritorial jurisdiction, in a situation in which a contracting party would exercise “through the consent, invitation or acquiescence” all or some public powers.65 It referred specifically to “the activities of diplomatic and consular agents acting abroad and on board craft and vessels registered

58 All Member States are party to the ECHR. The CJEU has attributed specific relevance to the ECHR as a source of the fundamental rights, which form part of the general principles of EU law and are as such binding on the Union itself and its Member States: Judgment of 28 October 1975 in Case 36/75, Rutili [1975] ECR 1219, para. 32, and subsequent case law. Art. 52(3) of the now binding Charter of Fundamental Rights of the EU states that in so far as this Charter contains rights that correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be at least equivalent. The Charter applies to the Union institutions, bodies and agencies, as well as the Member States when they implement Union law (Art. 51(1)). 59 Banković and Others v. Belgium and Others (Applic. No. 52207/99; adm. dec.), 12 December 2001, para. 61. 60 Cyprus v. Turkey (Applic. Nos 6780/74 and 6950/75), ECommHR 26 May 1975, 2 DR (1975), at 136. 61 Loizidou v. Turkey (Applic. No. 15318/89), 18 December 1996, para. 52, see also Öcalan v. Turkey (Applic. No. 46221/99), 12 March 2003, para. 93. 62 Issa and Others v. Turkey (Applic. No. 31821/96), 16 November 2004, para. 71. 63 Xhavara and Others v. Italy and Albania (Applic. No. 39473/98; adm. dec.), 11 January 2001. 64 Tribunale di Brindisi, Penal Section, Ruling No. 338, 19 March 2005, at 29. 65 Banković, para. 71.

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4  The Patrolling of the European Union’s External Maritime Border in, or flying the flag of, that State”.66 It also recalled that in Xhavara and others, common jurisdiction had been established by written agreement.67 The Medveydev case concerned the seizure in international waters of a ship suspected of being involved in drugs trafficking and the arrest and detention of its crew. The ECHR made first of all clear that: [T]he special nature of the maritime environment […] cannot justify an area outside the law where ships’ crews are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction, any more than it can provide offenders with a ‘safe haven’.68 It found that the persons on board were under French jurisdiction, and thus within the scope of protection of the ECHR, because the French agents exercised full and exclusive control over a ship and its crew from the time of its interception in international waters.69 Here the court confirmed that “in certain circumstances, the use of force by a State’s agents operating outside its territory may bring the individual thereby under the control of the State’s authorities into the State’s Article 1 jurisdiction”.70 In such cases the decisive factor is the “exercise of physical power and control over the person in question”.71 In the Hirsi case, the ECtHR confirmed its case law on the extraterritorial effect of the Convention rights and applied it to interceptions carried out by Italy under its 2008 Friendship Treaty with Libya.72 Under Article 19(1) of that agreement, both countries reinforced their commitment to cooperation on irregular migration, referring back to an earlier Agreement of 13 December 2000, and in particular an implementing Protocol signed on 29 December 2007.73 Article 2 of that Protocol provided for joint Italian and Libyan patrols in Libyan territorial waters as well as international waters. An additional Protocol, agreed on 4 February 2009, specified that joint patrols in Libyan waters would take place under Libyan control and in Italian and international waters under Italian supervision. Joint patrols started on 15 May 2009. Earlier that month, Italy had begun to intercept boats in international waters. Passengers were taken on board Italian vessels, and upon arrival Ibid., para. 73. Ibid., para. 81. Medvedyev v. France (Applic. No. 3394/03; Grand Chamber), 29 March 2010, para. 81. Ibid., para. 67. Öcalan v. Turkey (Applic. No. 46221/99), 12 March 2003, para. 93. Al-Skeini and Others v. the United Kingdom (Applic. No. 55721/07; Grand Chamber), 7 July 2011, para. 136. Hirsi, supra note 6. See for a commentary: A. Liguori, ‘La Corte Europea Dei Diritti dell’Uomo condana l’Italia per i respingimenti verso la Libia del 2009: il caso Hirsi’, Rivista di Diritto Internazionale, Vol. 95, 2012, pp. 415-443. 73 Italian-Libyan Friendship Treaty, supra note 11. 66 67 68 69 70 71 72

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Jorrit J. Rijpma in Tripoli handed over to the Libyan authorities, leading to fierce criticism from human rights organizations.74 A group of Somali and Eritrean nationals who had been returned in early May 2009 filed a complaint with the court in Strasbourg. They argued that they had been submitted to the risk of inhuman and degrading treatment in Libya and the risk of being refouled to their countries of origin, both constituting a violation of Article 3 of the Convention. In addition, the applicants complained that their return amounted to a collective expulsion as prohibited by Article 4 of Protocol No. 4 to the ECHR. Finally, they alleged a violation of their right to a remedy as regards their complaints. The court – confirming its case law on extraterritorial application of the Convention and explicitly referring Medvedyev – ruled that the Italian armed forces exercised continuous de jure and de facto control over the claimant until the moment they were handed over to the Libyan authorities. The court found that Article 3 had been violated on account of both the risk of ill-treatment in Libya and arbitrary repatriation to Somalia and Eritrea. The nature and purpose of the intervention by the Italian government, claimed to be a search and rescue operation, was irrelevant to this finding.75 In both instances the Italian authorities knew, or should have known on the basis of well-known and easily verifiable information, that there was a risk of treatment in contravention of the Convention.76 The fact that Libya had not ratified the Geneva Convention and did not have any effective system in place to guarantee protection to refugees supported the finding that the claimants had been subjected to the risk of ‘chain refoulement’.77 Italy was also found to have acted in breach of Article 4 of Protocol No. 4. It was the first time that the court applied this article extraterritorially. The court underlined that the purpose of the article was to require an individual examination of expulsion cases, allowing the individual to challenge the measure.78 In line with the court’s interpretation of the Convention as a living instrument and the need to render the guarantees contained therein practical and effective, it ruled that if the article: were to apply only to collective expulsions from the national territory of the State Parties to the Convention, a significant component of contemporary migratory patterns would not fall within the ambit of that provision, notwithstanding the fact that the conduct it is intended to prohibit can occur outside national territory and in particular, as in the instant case, on the High Seas.79

74 Human Rights Watch, Pushed Back, Pushed Around. Italy’s Forced Return of Boat Migrants and Asylum Seekers, Human Rights Watch Report, 20 September 2009. 75 Hirsi, supra note 6, paras. 81 and 134. 76 Ibid., paras. 125 and 131. 77 Ibid., para. 153. 78 Ibid., para. 177. 79 Ibid., para. 177.

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4  The Patrolling of the European Union’s External Maritime Border As Tondini correctly points out, the qualification of the interception as a search and rescue operation could have made a difference to the applicability of this article in the present case.80 However, statements by the Minister of the Interior hailing the operations as a great success in the fight against irregular migration did not leave many doubts as to the real aim of the interceptions.81 The court concluded that the Italian operations did in fact amount to a collective expulsion, considering there were no sufficient guarantees for a detailed examination of the individual circumstances of the intercepted migrants.82 On board the Italian vessels, there was no identification procedure carried out, nor was the crew trained to carry out individual interviews. This also played a role in the finding that the claimants had been deprived of an effective remedy.83 For instance, there had been no legal advisors or interpreters on board. No information as to the possibility to request asylum had been provided. 4.3 European Union Law

4.3.1

Schengen Borders Code

The Schengen Borders Code, adopted on the basis of the current Article 77(2) Treaty on the Functioning of the European Union (TFEU), provides the rules all Member States need to comply with when guarding their stretch of the external borders of the Schengen Area.84 Article 2(1) of the Code defines external borders as any border that is not internal. Seaports serving regular ferry connections between Schengen countries are considered internal.85 In principle, external borders may be crossed only at border crossing designated for that purpose. Border control comprises border checks at border crossing points, as well as border surveillance between these points in order to prevent irregular border crossings. 80 M. Tondini, The Legality of Intercepting Boat People Under Search and Rescue and Border Control Operations, Journal of International Maritime Law, Vol. 18, 2012, p. 72. 81 Hirsi, supra note 6, para. 181. 82 Ibid. 83 Ibid., paras. 201 et seq. 84 Schengen Borders Code, supra note 10. The Code applies to all Schengen countries. This means all Member States except the United Kingdom and Ireland, as well as the Schengen Associated Countries (Norway, Iceland, Switzerland and Liechtenstein), which are not part of the EU. It applies only in part to Cyprus, Romania and Bulgaria, which are still awaiting a Council Decision allowing for the lifting of internal border checks and their full entry into the Schengen area. 85 Interestingly, Art. 14(6)(b) of the Decision establishing the External Borders Fund (Decision No. 574/2007/ EC, OJ 2007 L 144/22) defines the “external maritime borders” as “the outer limit of the territorial sea of the Member States as defined according to articles 4 to 16 of the UNCLOS.” However, in cases where long-range operations on a regular basis are required to prevent irregular migration/illegal entry, this shall be the outer limit of high-threat areas. It does add that this definition of external maritime borders is used exclusively for the purposes of the External Borders Fund.

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Jorrit J. Rijpma As regards sea borders, the Code provides that checks on ships are carried out at the port of arrival or departure, on board ship or in an area set aside for the purpose, located in the immediate vicinity of the vessel. In addition, agreements may provide for checks to be carried out during crossings or upon the ship’s arrival or departure in the territory of a third country. Special rules also apply to cruise ships, pleasure boats, coastal fishing and ferry connections.86 Article 12 provides that surveillance shall be carried out to prevent unauthorized border crossings. It must be carried out in such a way as to prevent and discourage persons from circumventing the checks at border crossing points. The Code contains a number of substantive and procedural safeguards in Articles 6-11 and 13. Article 6 provides that border guards shall respect human dignity and the principle of proportionality and shall not discriminate on grounds such as sex, race or religion. The heading to this article refers to border checks only, but in substance also applies to border surveillance. After all, Member States are always bound to human rights when implementing EU law. Article 13 states that entry may only be refused by a substantiated decision in writing stating the precise reasons for the refusal. The (legally non-binding) Schengen Handbook for border guards states that surveillance serves “to stop and bring to the nearest border guard’s station persons who crossed or tried to cross the border illegally.” This seems to imply that people cannot simply be refused entry outside authorized border crossing points.87 When Member States patrol at sea in their territorial waters, it is beyond dispute that the Schengen Borders Code applies and that such control will constitute border surveillance in the meaning of Article 12 of the Code. The application of the Code, and in particular the safeguards contained therein, is less clear when patrols take place on the high seas or in third-country territorial waters. Former Commissioner Barrot took the position that it applies when Member States act on the high seas.88 A pending proposal for amendment of the Schengen Borders Code provides that when acting on third-country territory, Member States’ border guards shall respect the rules set out therein, even when conducting checks during the crossing or at arrival or departure in a third country.89 This, however, leaves doubt as to the applicability of Article 13 to border surveillance on the high seas and in third-country territorial waters, especially when such surveillances result in the interception and de facto refusal of entry.

86 Ann. VI, point 3, Schengen Borders Code. 87 See also the Note of the Dutch Standing Committee of Experts on international immigration, refugee and criminal law (Meijers Committee) on the Proposal for a Regulation amending the Schengen Borders Code (COM(2011) 118 final), 20 September 2011 (Reference No. CM1111). 88 Letter of 15 July 2009 from Mr. Jacques Barrot, former Commissioner for Justice, Freedom and Security to the LIBE Committee of the European Parliament. 89 COM(2011) 118 final, Proposal for a Regulation amending the Schengen Borders Code.

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4  The Patrolling of the European Union’s External Maritime Border 4.3.2

FRONTEX Regulation

Frontex, the EU’s agency responsible for managing operational cooperation at the external border, was established by Regulation in 2004.90 One of its main tasks is the coordination of joint operation of Member States’ border guard authorities.91 The applicability of the Frontex Regulation is undisputed in the territorial waters of the Member States. Operations taking place on the high seas have generally being based on the agency’s coordinating powers, a broad reading of Article 12 of the Schengen Borders Code on border surveillance and the fact that the operations were aimed at preventing irregular border crossings. The precise legal basis for joint operations in third-country territorial waters has remained rather unclear. Arguably, these operations could be based on a wide interpretation of the agency’s coordinating tasks and Article 12 of the Schengen Borders Code as well, read together with Article 14 of the Frontex Regulation on cooperation with the competent authorities of third countries. The consent of the coastal states for these operations was laid down in bilateral agreements with individual Member States.92 This practice has now been acknowledged in Article 14(7) of the Frontex Regulation, which stipulates that bilateral agreements may include provisions as regards the role of the agency, in particular in relation to joint operational activity. Still, the Frontex Regulation remains silent on the possibility of joint operational activity in third-country territory. It does explicitly provide for the financing of technical projects and the posting of Frontex liaison officers in third countries.93 Overall, the latest amendment of the Frontex Regulation shows an increased sensitivity to the need to respect fundamental rights. Article 1(2) explicitly refers to the Charter of Fundamental Rights, as well as the Geneva Convention and the principle of non-refoulement. A fundamental rights strategy has been put in place, a consultative forum has been established and a fundamental rights officer appointed.94 The Executive Director is now under an obligation to terminate joint operations in case of serious violations of fundamental rights.95 In addition, there is increased attention for the specificities of joint operations at sea. The concept of host Member State no longer includes only the Member State on whose territory a joint operation takes place, but also the Member State from which 90 Frontex Regulation, supra note 3. The regulation has been amended twice since: Reg. (EC) 863/2007, OJ 2007 L 199/30 and Reg. (EU) 1168/2011, OJ 2011 L 304/1. 91 See Art. 2(1)(a), which lists as the Agency’s first task the coordination of operational cooperation of the Member States in the field of external border management and Art. 3 on joint operations at the external borders. 92 Supra note 11. 93 See Art. 14(3) and (5), Frontex Regulation. 94 Art. 26a, Frontex Regulation. 95 Art. 3(1a), Frontex Regulation.

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Jorrit J. Rijpma an operation is launched.96 There is an explicit recognition of the fact that situations of increased pressure at the external borders may involve humanitarian emergencies and rescue at sea.97 Article 2(1b) underlines the principle of non-refoulement when disembarking intercepted people. In the case of operations at sea the operational plan must contain details about the relevant jurisdiction and legislation in the geographical area, including reference to international and EU law regarding interception, rescue at sea and disembarkation.98 Although all these amendments must be assessed as positive, their effectiveness may be questioned. They do not provide clear and univocal interpretations of the relevant rules on international (maritime) law. As regards the search and rescue regime, the EU simply lacks the competence to do so. The obligations imposed on the agency, such as the respect for the principle of non-refoulement, must really be read as obligations on the Member States when acting in the course of Frontex-coordinated joint operations. The agency and its staff have not been endowed with independent executive powers. At most, they impose an obligation on the agency not to facilitate Member States’ actions where these may result in violations of fundamental rights. 4.3.3

Decision 2010/252/EU

In June 2007, after the publication of its study into the Law of the Sea Instruments, the Commission decided to convene an expert group consisting of the representatives of interested Member States, the Commission itself, Frontex and international organizations such as International Organization for Migration (IOM), UNHCR and IMO. The group set out to draft non-binding guidelines on the interpretation of international (maritime) law in the context of joint operations coordinated by Frontex. It met several times, without, however, reaching agreement, and eventually disintegrated into a Brussels talking shop. The Commission, set at bringing Member States in line, decided to use its implementing powers under the Schengen Borders Code. Article 12(5) allows for the adoption of additional rules governing border surveillance in accordance with the comitology procedure. Under this procedure, the Council eventually adopted Decision 2010/252/ EU.99 The Decision contains two parts. The first provides binding guidelines that have to be observed during joint operations, in particular in relation to non-refoulement and interception. The second part contains rules on search and rescue and disembarkation. Since the EU lacks powers in that field, the guidelines were labelled as non-binding. 96 97 98 99

Art. 1a(2), Frontex Regulation. Art. 2(1)(da), Frontex Regulation. Art. 3a(i), Frontex Regulation. Council Decision 2010/252/EU, supra note 4.

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4  The Patrolling of the European Union’s External Maritime Border Several Member States opposed the Decision for its content, as well as for the fact that it regulated – even if in a non-binding way – matters outside EU competence. The E ­ uropean parliament in principle agreed the Decision’s objective, but felt that the Council had gone beyond the scope of its implementing powers. According to Parliament rules on interception, search and rescue and disembarkation did not fall within the concept of border surveillance. Moreover, the Decision amended essential elements of the Schengen Borders Code and the Frontex Regulation, which could only be done by the Union legislature. The case was therefore to a large extent an inter-institutional battle for power. Both Advocate General Mengozzi and the court concluded that the Decision c­ ontained political choices, which were to be left to the Union legislature.100 The court upheld parliament’s plea that the Council had exceeded its implementing powers. It did not accept the Council’s argument that Part II of the Decision only contained non-binding guidelines. The fact that Article 1 of the Decision stipulated that the guidelines were to form part of the operational plan of Frontex operations meant that also this part was intended to produce binding legal effects and contained essential elements to be left to the Union legislature.101 The court did not express itself on the question whether interception, disembarkation and search and rescue fall within the concept of surveillance.102 The fact that it directly examined the nature of the rules seems to imply that they do, although, as the Advocate General remarked, it was not necessary to adopt a definitive position on the matter, since the rules laid down in the Decision in any case contained essential elements reserved for the Union legislature. Neither the Advocate General nor the court addressed the remainder of Parliament’s arguments. They did not pronounce themselves on the geographical scope of the Schengen Borders Code, nor did they answer the question whether the procedural safeguards of Article 13 of the Schengen Borders Code apply when entry is denied in the course of border surveillance.103 In line with what was argued above, the Parliament maintained that it does and that as such the Decision had amended the Schengen Border Code by allowing for direct returns on the high seas. As Parliament had requested, the court upheld the effect of the Decision until the entry into force of new rules within reasonable time. This now requires the Commission to adopt a legislative proposal, presumably amending the Schengen Borders Code and the Frontex Regulation. The question remains whether the Union has competence over all the issues addressed in the Decision. The Council Legal Service has already concluded from 100 Case C-355/10, supra note 5, paras. 76-78 and the Opinion of AG Mengozzi in that case, delivered on 17 April 2012, paras. 61-67. 101 Case C-355/10, ibid., paras. 80-85. 102 The Advocate-General did consider that the rules on interception largely fell within the concept of surveillance. He was, however, doubtful as to the rules on disembarkation and search and rescue: Opinion of AG Mengozzi, supra note 100, paras. 59 and 60. 103 The Advocate General did consider this a ‘delicate question’, which the Court would likely be called on to rule in the near future, ibid., para. 70.

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Jorrit J. Rijpma the fact that the court had considered the rules together that all were covered by the concept of surveillance and hence could be brought within the scope of Article 77 TFEU.104 Although this is only implied in the judgment, it could be argued that such a power is indeed implied in the competence to adopt “any measure necessary for the gradual establishment of an integrated management system for external borders”.105 Alternatively, a competence could be found in the flexibility clause of Article 352 TFEU, in view of the importance of a harmonized approach to the Union objective of developing a common policy for the external borders. However, the adoption of legislation under this article would require a hard to obtain unanimity. 4.4 Conclusion If the rules that govern maritime surveillance by the EU Member States have one thing in common, it is the lack of a harmonized interpretation on their applicability and content. Despite attempts at the international and EU levels to come to an integrated approach, the current legal regime is fraught with uncertainty. This has had – and continues to have – severe practical consequences. Irregular migrants and refugees have been refouled as a result of Member States’ attempt to prevent irregular migration, and lives have been lost in their unwillingness to accept responsibility under the search and rescue regime. States have a legitimate interest in guarding their external borders.106 However, this should be done in full respect of fundamental rights and the principles laid down in the Schengen Borders Code, and also where this control takes places away from the actual border. The ECtHR’s unanimous judgment in the Hirsi case leaves no room for further doubt as to the applicability of the principle of non-refoulement in the course of Member States’ maritime patrols on the high seas. Moreover, it has made clear that interceptions when carried out with the purpose of preventing irregular arrivals may amount to a violation of the prohibition on collective expulsions. The CJEU failed to take the opportunity to strengthen the rule of law during joint operations of the Member States at sea. It refused to pronounce itself on the geographical scope of the Schengen Borders Code and the applicability of procedural safeguards contained therein. On procedural grounds, it annulled the contested Decision on guidelines for Frontex operations at sea, the first attempt at formulating a common interpretation of the relevant rules of international (maritime) law. New rules will now have to be adopted 104 Information Note Council Legal Service to COREPER II, 26 September 2012 (Council Document 14236/12), p. 8. 105 Cf. the EU’s power to prescribe criminal sanctions where this proves necessary in order to ensure the respect and efficiency of EU rules in an area of Union competence: Judgment of 13 September 2005 in Case C-176/03, Commission v. Council (Environmental Penalties) [2005] ECR I-7879, para. 48 and Judgment of 23 October 2007 in Case C-440/05, Commission v. Council (Ship Source Pollution) [2007] ECR I-9097, para. 69. 106 As also recognized by the ECtHR in Hirsi, supra note 6, para. 122.

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4  The Patrolling of the European Union’s External Maritime Border by the Union legislator. The question is whether in the absence of effective responsibility sharing mechanisms that go beyond mere financial and technical solidarity, the resistance of Member States such as Malta can be overcome. However, even in the absence of common rules, there can be no doubt that Member States are bound to the respect for fundamental rights. This is not merely an obligation under the ECHR, but also a matter of EU law. When patrolling the EU’s maritime borders, alone or jointly, Member States implement a Union policy and are hence bound by the Charter of Fundamental Rights and general principles of EU law. One can only hope that the Commission will show more vigilance than it has done in the past and will intervene when Member States’ border practices violate fundamental rights. It is to be expected that Member States will become more reluctant to engage in extraterritorial border controls. They may instead resort to new forms of technical surveillance, as is evidenced by the proposal for the establishment of the border monitoring system EUROSUR.107 They may also turn their efforts to capacity building in third countries, providing them with financial and technical support.108 As pushback may turn into pull backs, third countries will increasingly become the real border guards of the EU. There should be no doubt, however, that the extraterritorialization of border controls comes at an immense human cost. Preventing people in search of protection or a better future from reaching European soil will only drive them into the hands of human smugglers or otherwise force them to use new, often more dangerous, routes. Here the question of extraterritorial border controls becomes no longer exclusively legal, but gains an ethical dimension.

107 COM(2012) 873 final, Proposal for a Regulation Establishing the European Border Surveillance System (EUROSUR). 108 See Part III of the minutes of the meeting between the Italian and Libyan Ministries of the Interior of 3 April 2012 to this effect.

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Part II Security of Navigation and Struggle against Piracy

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5

International Security and Powers of Enforcement at Sea

Umberto Leanza* 5.1 The Notions of Maritime Safety and Security The concepts of safety and security have been forged in the face of the need to introduce rules that impose appropriate international standards in terms of security of navigation and the safety of life at sea. For a long time, the concept of ‘security’ of navigation covered only aspects relating to safety and were intended to protect the ship, persons on board and the cargo, the inherent risks of navigation at sea. Only recently, especially as a result of the terrorist attacks of 11 September 2001, has the need arisen to adopt specific measures in the field of security, a concept that emphasizes the protection of vessels, maritime transport and the port infrastructure from risks from illicit international activities. The concepts of safety and security are intrinsically linked to each other, with security being merely a necessary extension and completion of the term traditionally known for safety. In fact, both concepts show a new and comprehensive concept of safety of navigation, which is considered the ultimate goal of international action in the matter. 5.2 Maritime Safety: The 1974 SOLAS Convention Only at the beginning of the twentieth century did the need to regulate maritime safety against risks arising from navigation appear at the international level. On the one hand, the recent discoveries of the nineteenth century and the development of shipbuilding made it possible to raise the standard of safety of ships. On the other hand, the number of incidents at sea – including the sinking of the Titanic (1912) and the Andrea Doria (1956) – urged the international community to establish responsibilities for maritime safety, aimed at making ships more secure. Following the first international conferences (conference in London in 1912, 1914, 1929 and 1948), in 1948, the Inter-Governmental Maritime Consultative Organization (IMCO) was created, which became the International Maritime Organization (IMO) in 1982. The IMCO was responsible for the adoption, in 1960, of the SOLAS Convention for the Safety of Life at Sea, amended for technical updates in 1974. *

Professor “Jean Monnet”, University of Naples 2.

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Umberto Leanza The SOLAS Convention (which stands for Safety of Life at Sea) is intended to protect the safety of navigation, with express reference to protection of human life on board. The international treaty obliges states parties to exert effective control over vessels, their construction and registration for life. The 1974 SOLAS Convention has been the subject of numerous protocol amendments that helped to expand and make more precise the requirements on safety of maritime navigation, obligations of owners and shipowners. 5.3 Maritime Security: The Sectorial Tools Amending the SOLAS Convention on the Subject of Counterterrorism at Sea In 1985, the seizure of the Achille Lauro revealed the gaps in international regulations concerning the safety of navigation and also formed the basis for a wide-ranging reaction from the international community. Consequently, the IMO Assembly urged the Maritime Safety Committee (MSC) to elaborate technical and practical measures to ensure the safety of passengers and crews on board ships. In addition, in November 1986, the IMO Legal Committee started work on the development of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. The Rome Convention of 1988 (SUA Convention), supplemented by a Protocol on illegal acts against fixed platforms located on the continental shelf, is intended to counter the acts of violence committed for political or terrorist purposes against private vessels. In particular, the crimes covered by the Convention are acts of violence and threats to seize a ship or cause damage to persons on board, the destruction of a ship or damage to cargo or installations on board and intentional erroneous communication of maritime information. The Convention shall apply in the event that the above actions are performed when the ship is beyond the outer limits of the territorial sea of a single state or, depending on its route, is going to navigate to or is coming from the limits of the territorial sea. The contracting parties in whose territory the offender is are required to prosecute him or, alternatively, to extradite him (according to the well-established principle aut dedere aut judicare). The framework for the protection of maritime safety, however, is undermined by the terrorist attacks of 11 September 2001. The international community is aware of the need to address the issue of maritime security in structural terms. On the impetus of the United States of America, since February 2002, a series of initiatives were then launched within the IMO to develop a corpus of measures to prevent acts of unlawful interference against shipping that led to the convening of a diplomatic conference in December 2002. Here changes were made to the SOLAS Convention for the Safety of Life at Sea. The Conference introduced a new Chapter XI-2 dedicated to security (Special Measures to Enhance Maritime Security) and adopted the ISPS Code (International Ship and Port Facility Security Code). 104

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5  International Security and Powers of Enforcement at Sea 5.4 The Specific Tools for Maritime Security: The London Protocol to the Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation To cope with new threats to maritime security, from October 2001, the IMO Legal Committee began a process of reflection on the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. This led to the adoption, on 14  September 2005, during a diplomatic conference held in London, of a Protocol to amend the Convention of Rome and an additional Protocol dedicated to Unlawful Acts against the Safety of Fixed Platforms. There are two strengths of the London Protocol. On the one hand, the Protocol adds further offences, such as: using a ship in such a way as to cause massive destruction in public places; using a ship transporting weapons of mass destruction and related materials for terrorist purposes; downloading from a ship substances hazardous or noxious in such quantities as to cause fatal injuries or extensive damage to the environment. On the other hand, the Protocol strengthens the measures in terms of visit, search and seizure of ships suspected of being involved in terrorist activities. In particular, the Protocol establishes that the state with justifiable grounds for believing that a ship, its cargo or a person on board may be involved in prohibited activities – or has such a goal – can halt and inspect the ship, even if the latter is on the high seas. There is an obligation for the state that wants to control to obtain the authorization of the flag state as a requirement for boarding the ship. According to an opt-in clause, the parties may consider declaring as granted the permission to board and inspect a vessel flying its flag if there is no answer within four hours of the request for authorization. 5.5 The Specific Tools for Maritime Safety: The Search and Rescue at Sea The positive results achieved so far at the international level in the field of maritime safety aimed at ensuring the safety and seaworthiness of vessels and reducing risks associated with navigation at sea are not in themselves sufficient to eliminate the problems caused by the circulation of ships that do not meet international safety standards. The principle universally accepted, of the protection of human life at sea, welcomed by the UN Convention on the Law of the Sea of 1982, which reflects customary international law is applied to Illegal immigrants and all persons in danger at sea. Pursuant to Article 98, paragraph 1, of the Convention, any state may oblige the masters of ships flying its flag – if this is possible without endangering the ship, the crew or the passengers – by providing assistance to survivors found at sea or by moving immediately to the rescue of people at risk when notified of their need for help. Paragraph 2 of Article 98 states that every coastal state member of UNCLOS is also obliged to create and maintain a search and rescue service (or SAR, for ‘search and 105

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Umberto Leanza rescue’), making use, where appropriate, of regional arrangements and mutual assistance with neighbouring countries, based on the principle that the authorities of the coastal state in charge of search and rescue services, if they are informed by the authorities of another state that there are people in a life-threatening situation in the SAR under its jurisdiction, are required to act ‘regardless of nationality or legal status’ of such persons. The various conventions of the international law of the sea include Convention on the Sea Rescue of 1989 and SOLAS Convention of 1974 for the Safety of Life at Sea. Specific provisions are also contained in the Hamburg Convention of 1979 on Search and Rescue at Sea. This legal instrument creates an obligation of rescue at sea, resulting in the need to assist the person in danger and immediately alert the competent authorities for anyone who is in a position to intervene. 5.6 The Specific Tools for Maritime Safety: The Provisions of the Convention in Hamburg in 1979 and the Establishment of Search and Rescue Areas (the So-Called SAR Zones) The Hamburg Convention establishes a legal framework containing specific terms and procedures, by which the contracting states must act to structure their services to search and rescue at sea. The search and rescue areas (SAR areas) are established by each state party to the Convention, if any, in the case of contiguous or riparian states, in agreement with other states parties to the Convention. In any case, the SAR regions should not overlap each other. States should also undertake bilateral or multilateral negotiations between bordering riparian states in order to coordinate the SAR services. These areas do not necessarily correspond to the existing maritime frontiers nor, therefore, must they necessarily follow the path. States may also establish, in cooperation with other states, joint SAR areas. The sea areas identified as SAR zones are under the responsibility of the coastal state and under the control and power of intervention of each state party. What we want to highlight is that the establishment of a SAR zone is inherently conditional on the state party of the Convention and will be able to ensure continuous operation and efficient SAR services in the area of its jurisdiction. The Hamburg Convention clarifies that for a SAR service to be effective, it must be operated and maintained properly and be integrated into a proper regulatory framework. 5.7 The Specific Tools for Maritime Safety: The Italy-Malta Dispute and Issue of the Delimitation of the Malta SAR Under the Convention of Hamburg, defining the regions of SAR is not tied to that of the existing maritime frontiers, nor does it prejudge the legal status of waters under the 106

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5  International Security and Powers of Enforcement at Sea Convention of the Law of the Sea 1982. To that end, the international treaty requires that SAR regions must be established through agreements between the states parties to the Convention. According to the Convention of Hamburg, in the absence of delimitation agreements zone limits, a SAR should be agreed within the IMO. Italy was the first Mediterranean country to enter into agreements of this kind with the riparian countries. So far it has not been possible to agree with Malta the SAR areas of their respective competence. As stated in the Global SAR Plan, developed by the IMO, the SAR area set unilaterally by Malta has a wide extension coinciding with the Flight Information Region (FIR). In particular, in the north and west, it overlaps with the corresponding Italian SAR area (defined by Presidential Decree No. 664/1994), covering even the territorial waters of Lampedusa and Lampione. To the west of the Malta SAR zone, it overlaps with the Tunisia territorial waters, preventing this country from conducting SAR operations on its own within a few miles from its shores. The extension of the Maltese SAR area raises a twofold reserve. On the one hand, contradicting the letter and spirit of the 1979 Hamburg Convention, Malta has unilaterally declared an area of SAR responsibility overlapping with several parts of the Italian SAR areas. On the other hand, the Maltese SAR zone is oversized with respect to Malta’s operational capabilities in search and rescue operations at sea. Malta declares that it does not have the means, technical skills and adequate accommodation for the conduct of SAR at sea. This neglects the fundamental principles e­ nshrined in the Convention of Hamburg, in particular that the SAR area of responsibility must be proportionate to the operational resources and capabilities of coordination of each individual state. 5.8 The Specific Tools for Maritime Safety: The Malta’s Responsibility in the SAR Operations at Sea It remains to study the question of determining the most appropriate port for disembarkation of persons in distress after interception of the ship and its rescue operations. In May 2004, Member States adopted important amendments to both the 1974 SOLAS Convention and the 1979 Hamburg Convention. Both of these changes, which came into force on 1 July 2006, are intended to ensure that the duty of the master of a vessel to assist completes the corresponding obligation of states to cooperate in rescue situations, thus relieving the commander of the responsibility to care for survivors and to allow individuals who are rescued at sea in such circumstances to be transferred to a safe place. The amendments require states parties to coordinate and cooperate to ensure that masters of ships providing assistance in embarking persons in distress at sea are relieved from their obligations with a minimum of further deviation from the planned route of the ship, and to organize the disembarkation as soon as possible, as far as practicable. In order to provide guidance to government authorities and commanders who are to implement 107

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Umberto Leanza these amendments, guidelines were drawn up on the treatment of rescued persons that the IMO adopted on the same day of the approval of the amendments to the SOLAS and SAR. The guidelines expressly state that the government responsible for the SAR region where the survivors were rescued is responsible for providing a safe place or for ensuring that such a place is provided. Finding a place of safety must, in fact, be carried out by the Coordination Centre of the State responsible for the area of SAR. They also clarify the concept of place of safety and that the rescue ship is merely a provisional place of rescue, the reaching of which does not coincide with the end of the rescue operation. Among the main criteria for the choice of place of safety, it should be emphasized that it can be defined as a place where rescue operations are considered to be completed and the lives of people rescued are no longer in danger; basic needs such as food, shelter and medical care to the survivors are ensured; and adequate transport can be organized to the next/final destination of the survivors. Now, as has been noted, the amendment to the SAR Convention was not accepted by the Government of Malta. However, while Malta is not bound by the amendment concerned, what I want to emphasize is that the amendments to the Hamburg Convention have only had the merit of clarifying the identification of the place of safety and the authorities to proceed with the landing of the rescued persons, but both statements are currently already derivable from the text of the SAR Convention. With the letter and the intent of the SAR Convention of 1979, it is clear that the search and rescue operations that the state party undertakes to engage in SAR in the area of its competence also include the disembarkation of the persons in distress at a safe place, not necessarily the nearest one. It follows from the Convention that the concept of ‘safe place’ is to be understood relatively, i.e. in relation to the SAR area of reference. In other words, within its SAR zone, every coastal state is committed to ensuring the effective protection of human life at sea. In conclusion, an incomplete SAR area – which means an oversized area in relation to the operational capabilities at sea of the coastal state that has established it and a zone without safe places of landing – is clearly in contradiction to the object and purpose of 1979 Convention and, more generally, to the principle of effectiveness in customary international law. Neither can such a gap be bridged in the absence of a specific agreement in this sense, making as the rule the exception of intervention of a neighbouring State in its own SAR area. The Convention, in fact, builds the intervention of the neighbouring state as a supplementary support when, for various reasons, the self-sufficiency of the area and all the SAR operations to be performed in it cannot be duly made as of due and the effectiveness of the protection of human life at sea cannot be guaranteed.

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6

International Terrorism at Sea between Maritime Safety and National Security. From the 1988 SUA Convention to the 2005 SUA Protocol

Ida Caracciolo* 6.1 Introduction Violence at sea consists of not only piracy but also acts of terrorism, which could affect both maritime security and the security of the targeted state(s). Terrorist strikes at sea can be actions of violence against the ship, the passengers or the crew. These actions are similar to those committed by pirates. But terrorism at sea can also be conducted through ships utilized as a sort of weapon to strike other ships or the port or some port facilities. But terrorists can also utilize ships as a logistic base for their attacks or as a means of transporting weapons – including weapons of mass destruction – for their attacks. Currently, the attention of the international community is focused on piracy and less on terrorism at sea because of the escalation of piracy not only off the Somali coasts but also off the Nigerian coasts and its devastating effects on maritime navigation and also peace and international security. As far as terrorism is concerned, statistics show that only 2% of maritime accidents have been caused by terrorist acts in the last three decades. Mainly terrorism at sea seems to be latent and to arise in specific, localized and infrequent episodes. Nevertheless, even though terrorism at sea has not increased over the years, the fear of terrorist attacks at sea is still felt owing to the peculiar characteristics of maritime navigation that have influenced the increase of piracy, the physical characteristics of vessels and the peculiarity of modern shipping in the economic globalization era.1 An increase in terrorism at sea could derive also from the development of its links with piracy. In other words, terrorist groups could act together with pirates in order to optimize their actions or could assign terrorist strikes to pirates. Even the risk of capital flow from piracy to terrorism must be taken into account to this end. The reaction in legal terms against terrorism at sea by the international community has been triggered occasionally by terrorist attacks: first of all, the hijacking of the Italian flag * 1

Full Professor of International Law, University of Naples 2. See P. Chalk, The Maritime Dimension of International Security, Terrorism, Piracy, and Challenges for the United States, Rand, Santa Monica, 2008, p. 20.

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Ida Caracciolo cruise ship Achille Lauro in 1988 and then, more than ten years later, by some attacks perpetrated by terrorists groups affiliated to Al Qaeda.2 Pressurized by the murder of a US citizen during the hijacking of the Achille Lauro, the UN Convention on the Suppression of Unlawful Acts Against Maritime Navigation was adopted on 10 March 1988 in Rome (1988 SUA Convention), while the Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation was adopted on 15 October 2005 in London (2005 Protocol).3 The revision of the 1988 SUA Convention had two major purposes. The first one was to update its provisions taking into account the new treaties against terrorism, such as the 1997 International Convention for the Suppression of Terrorist Bombing,4 the 1999 International Convention for the Suppression of the Financing of Terrorism5 and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism.6 The second one was to include those additions and amendments necessary to counter new forms of terrorism at sea and the new threat caused by Al Qaeda terrorism. To that end, the activities of armed forces during an armed conflict and activities undertaken by military forces of a state in the exercise of their military duties have been excluded from the scope of application (Art. 2bis). The reference to terrorism and its definition – although generic – have been inserted in the text (Art. 3 bis) and the offences broadened (Arts. 3bis, 3ter and 3quater). The so-called political offence exception has been included (Art. 11ter); and lastly, the right to visit foreign vessels on the high seas has been regulated (Art. 8bis).7 The 1988 SUA Convention has been ratified by 160 states, constituting the large majority of the world merchant fleet (94.66%), whereas the Protocol has been ratified by just 23 states, representing only around 30.27% of the world merchant fleet.8 The low number of states parties to the 2005 SUA Protocol can be explained by the fact that terrorism at sea is considered a minor risk compared with piracy, which is nowadays the focus of the whole international community. Some difficulties in ratifying or adopting the Protocol arise from the fact that it contains rather detailed provisions defining acts of terrorism at sea and increases the possibilities for intervention on the high seas by non-flag states to combat terrorism effectively. 2

3 4 5 6 7 8

In January 2000 an attack was made by a group affiliated to Al Qaeda against the destroyer USS The Sullivans in the port of Aden, and some months later a suicide attack was conducted by another group affiliated to Al Qaeda against the destroyer USS Cole in the port of Aden. In October 2002 a terroristic attack was perpetrated against the French supertanker Linburg off the Yemeni coast. For more information on terroristic attacks at sea, see N. Klein, Maritime Security and the Law of the Sea, Oxford University Press, Oxford, 2011, pp. 148 et seq. The 1988 SUA Convention entered into force on 1 March 1992 and the 2005 SUA Protocol on 28 July 2010. 2149 UNTS 284. See International Legal Materials, Vol. 39, 2000, p. 270. See International Legal Materials, Vol. 44, 2005, p. 815. Klein 2011, p. 171. Status of ratifications at November 2012.

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6  International Terrorism at Sea  Today counterterrorism at sea has its legal basis in some international law rules: (1) the 1982 UN Convention on the Law of the Sea (UNCLOS 1982) as far as the principles on rights and duties of states on the high seas are concerned and (2) the 1988 SUA Convention and the 2005 SUA Protocol establishing the detailed rules in consideration of how terrorism has evolved. Moreover, some rules of the 1974 International Convention for the Safety of Life at Sea (1974 SOLAS Convention), as amended, are also relevant because in dealing with the security of navigation, they lay down rules that are helpful in the fight against terrorism at sea. The legal framework indicated just now is completed by the principle on the inherent right of self-defence and Chapter VII of the UN Charter on the collective security system. These rules can be applied once the UN Security Council determines that terrorism at sea is a threat to international peace and security. Additionally, some non-binding or rather merely political instruments for enhancing interstate cooperation – such as the Proliferation Security Initiative (PSI) – also contributed to better controls on the high seas.9 This chapter intends to address the aspects of the rules concerning counterterrorism at sea raised by the revision of the 1988 SUA Convention by the 2005 SUA Protocol, and especially those aspects that exemplify the passage from a concept of terrorism at sea as solely endangering the freedom and the security of navigation to a – more correct – concept of terrorism at sea menacing the security of not only single states but also the international community on the whole. The analysis will underline some ambiguities in the body of rules and connections with other international law provisions as well as some inevitable compromises. Both stem from the fact that the relevant rules have been developed not following a systematic approach but under pressure from specific acts of terrorism exhibiting new features compared with previous ones. The risk that terrorists could utilize weapons of mass ­destructions influences the choices, enlarging the scope of the rules. Furthermore, the ­attitude of the UN Security Council towards terrorism as a threat to international peace and security has given new legal relevance to terrorism at sea too. 6.2 From the Protection of Maritime Security to the Protection of National Security. The Changing Perspective of the 2005 SUA Protocol Neither the 1988 SUA Convention nor the 2005 SUA Protocol contains any definition of terrorism at sea. Well aware of the difficulties in defining terrorism at the international level, the negotiators of both these treaties preferred to avoid any risk and to adopt 9

H. Tuerk, ‘Combating Terrorism: The Suppression of Unlawful Acts Against the Safety of Maritime Navigation’, in M.H. Nordquist et al. (Eds.), Legal Challenges in Maritime Security, Martinus Nijhoff, Leiden, 2008, p. 67.

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Ida Caracciolo a pragmatic approach focused only on determining which acts constitute typical acts of terrorism or play a role in terrorist strikes and on enumerating them in the conventional rules without any further qualification. In this way the ideological and political aspects of terrorism, which, up to now, have impeded efforts towards a global convention on terrorism, remain in the background.10 While the 1988 SUA Convention limits to the maximum references to terrorism, the 2005 SUA Protocol is less cautious. The first treaty uses the word ‘terrorism’ only in the preamble, which – as it is well known – does not contain substantive provisions but merely ones that serve to explain the rationale and the scope of the conventional rules. The preamble also refers to UN General Assembly Resolution 40/61 of 9 December 1985 containing a clear and unequivocal condemnation of terrorism and requesting the International Maritime Organization (IMO) to study the problem of terrorism on board ships or against ships in order to recommend the appropriate measure to react. Moreover, the offences indicated in Article 3 do not present any link to terrorism. They consist of particularly serious acts of violence committed on board a ship and “likely to endanger the safe navigation of that ship.” This latter requisite is fundamental, and it does not relate to the mental element of the offence but to the material one: the prevalent or main goal of the conduct must be to endanger the safety of navigation. Pursuant to Article 3.1, intention by the offender is required since the provision states that “[a]ny person commits an offence if that person unlawfully and intentionally […].” Therefore, the 1988 SUA Convention can be defined as a treaty on the safety of navigation on the basis of its textual interpretation and a treaty on terrorism at sea on the basis of the rationale – emerging elsewhere as has been seen – and the circumstances of its conclusion: to combat acts of terrorism at sea analogous to those that occurred on board the cruise ship Achille Lauro.11 The solution of not referring expressly to terrorism is abandoned by the 2005 SUA Protocol.12 Article 3 bis contemplates several offences whose purpose is terroristic since it, “by its nature or context, is to intimidate a population or to compel a government or an international organization to do or to abstain from any act.” This purpose entails the following conduct: (a) the use (or the threat of using) against or on a ship or the discharging from a ship of any explosive, radioactive material or BCN weapon in a manner that causes or is likely to cause death or serious injury or damage; (b) the discharging (or the threat of discharging) of oil, liquefied natural gas or other 10 On the difficulties on defining terrorism at the international level, see S. Setty, ‘What’s in a Name? How ­Nations Define Terrorism Ten Years After 9/11’, University of Pennsylvania Journal of International Law, Vol. 33, 2011, p. 1. 11 For a deep analysis of this Convention, see N. Ronzitti (Ed.), Maritime Terrorism and International Law, Kluwer, Leiden, 1990. 12 T.L. McDorman, ‘Maritime Terrorism and the International Law of the Sea: A Brief Assessment of the New Developments’, in D.D. Caron & H.N. Scheiber (Eds.), The Oceans in the Nuclear Age. Legacies and Risks, Martinus Nijhoff, Leiden, 2010, p. 253.

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6  International Terrorism at Sea  hazardous or noxious substance from a ship in such quantity or concentration that causes (or is likely to cause) death or serious injury or damage and (c) the use (or the threat of using) of a ship in a manner that causes death or serious injury or damage. The mens rea of intent is a special feature of the offences listed in Article 3bis.1(a), compared with other analogous acts and conduct. Specifically, the mental state required is the specific intention of the offender to use violence to spread terror among a population or to obtain certain conduct or abstention from a government or an international organization. As for the transport of any explosive or radioactive material on board a ship, the offender is required to know that “it is intended to be used to cause, or in a threat to cause, with or without a condition, as is provided for under national law, death or serious injury or damage for the purpose of intimidating a population, or compelling a government or an international organization to do or to abstain from doing any act.” The formula in Article 3bis to describe the specific terrorist purpose is not new to international law and can be found in identical terms in Article 2 of the 1999 United Nations International Convention for the Suppression of the Financing of Terrorism,13 and in rather similar terms in UN Security Council Resolution 1566 (2004)14 as well as in EU Council Framework Decision 2002/475/JHA of 13 June 2002 on Combating Terrorism.15 In any event, the terroristic purpose changes the object of the conventional rules: not only the safety of navigation but, above all, national security, being the final target of terrorism

13 Art. 2 defines the crime of terrorist financing as the offence committed by any person who “[…] by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out […]” an act “[…] intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act. […]” 14 The UN Security Council defines terrorism acts as: “[…] criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, […].” See also the definition of terrorism given by the High Level Panel on Threats, Challenges, and Change convened by the UN Secretary General; according to it the act of terrorism consists in: “any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council Resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.” 15 OJ 2002 L 164/3. According to this Decision, terrorist offences: “[…] given their nature or context, may seriously damage a country or an international organization where committed with the aim of: seriously intimidating a population; or unduly compelling a Government or international organization to perform or abstain from performing any act; or seriously destabilizing or destroying the fundamental political, constitutional, economic or social structures of a country or an international organization.”

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Ida Caracciolo at sea. This conclusion is supported by the fact that Article 3bis adds to some offences the reference “to cause death or serious injury or damage”. 6.3 The Enlargement of Offences by the 2005 SUA Protocol between Counterterrorism and Counterproliferation of Weapons of Mass Destruction Article 3bis also includes offences involving biological, chemical and nuclear weapons (so-called BCN weapons) and other explosive radioactive material. Therein the Protocol also seems to go beyond the mere scope of protecting the security of navigation against terrorism and to be rather focused on the non-proliferation of weapons of mass destruction.16 In particular, this article criminalizes the transport, on board a ship, of “any BCN weapon knowing it to be a BCN weapon, […] any source material, special fissionable material or equipment or material especially designed or prepared for the processing, use or production of special fissionable material” or “any equipment, materials or software or related technology that significantly contributes to the design, manufacture or delivery of a BCN weapon.” The use against or on a ship or discharges from a ship of any explosive, radioactive material or BCN weapon is criminalized only in the presence of a specific mental element of the offender. The phrasing here is not particularly clear as to the form of mens rea of the offender. Obviously the transportation must be intentional. But this condition is not sufficient. As far as BCN weapons are concerned, the offender is required to know their nature of mass destruction weapons while, with reference to source or fissile material, he is required to be aware not only that its final destination is in nuclear activities but also if it is in conformity with the relevant IAEA safeguards agreement.17 In other words, the offender has to know the practical utilization of the fissile materials and the international rules governing this utilization. Lastly, in the case of transportation of any equipment, materials or software or related technology connected with the design, manufacture or delivery of a BCN weapon, the intention must be specifically focused on the fact of using them for these purposes. The intent is to some extent a qualified one.18

16 Klein 2011, pp. 172 et seq. 17 Through the safeguards activities IAEA can verify that a state is living up to its international commitments not to use nuclear programmes for nuclear-weapons purposes. Today, IAEA safeguards nuclear material and activities under agreements with more than 140 states. 18 The provision in question reconfirms the double regime under NPT: that applicable to the states already having nuclear weapons at the date of entry into force of this agreement, and that applicable to all the other states.

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6  International Terrorism at Sea  Article 3ter extends criminalization to the transportation of a person on board a ship knowing that the person has committed an act that constitutes an offence set forth in Articles 3, 3bis or 3quater or an offence set forth in one of the nine counterterrorism treaties included in a new Annex added to the 1988 SUA Convention by the Protocol, and intending to assist that person to evade criminal prosecution.19 Lastly, Article 3quater criminalizes conduct consisting of attempting, participating, organizing or directing others, or contributing to various principal offences under the Convention and the Protocol. In conclusion, a qualitative leap between Article 3 of the 1988 SUA Convention and Article 3bis of the 2005 SUA Protocol emerges. Article 3 sets out offences unequivocally against the safety of navigation, whose effects are mainly and directly limited to the vessel, the crew, the passengers or the cargo. On the contrary, offences under Article 3bis of the SUA Protocol 2005 are against state security since their end purpose is to spread terror to a population or a government. They threaten navigation too, but as a way to attack the security of a state and a population. Another qualitative difference stems from the fact that Article 3 bis refers to the conventions on disarmament with regard to weapons of mass destruction and to the 1968 Treaty of Non-proliferation of Nuclear Weapons (NPT) with regard to nuclear weapons. The 2005 SUA Protocol shares the main goal of contemporary international law: the maintenance of international peace and security. Therefore, 2005 SUA Protocol incisively amends the 1988 SUA Convention: it transforms a treaty focused on the security of navigation – or at least, combating terrorism against navigation – into a treaty combating terrorism on a larger scale if caused by, from or through a vessel. 6.4 The Reaction against Terrorism at Sea: The Multiplication of the Grounds for Jurisdiction The duty imposed on a state to combat unlawful acts against the safety of maritime navigation by the 1988 Convention consists of making the offences set forth in the Convention punishable (Art. 5), in taking the necessary measures to establish its jurisdiction over the same offences if certain conditions occur (Art. 6), in taking the offender into custody if he is present in its territory or taking other analogous measures (Art. 7), in extraditing him or submitting the case to its competent authorities (Art. 10), in cooperating in the field of assistance in connection with criminal proceedings (Art. 12), and in cooperating in the prevention of the relevant offences (Art. 13).

19 Art. 4quater is complementary since it criminalizes the participation, organization, contribution, etc. to the conduct indicated in Arts. 3bis and 3ter.

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Ida Caracciolo The rules on the exercise of jurisdiction to adjudicate are contained in full in the 1988 SUA Convention. On this point, the 2005 Protocol does not amend the 1988 SUA Convention as it just provides for specification: none of the offences indicated are to be regarded as a political offence or as an offence inspired by political motives for the purposes of extradition or mutual legal assistance (Art. 11bis). This provision could play a fundamental role in removing a major obstacle to the well and efficient functioning of interstate cooperation in the field of counterterrorism because many extradition treaties and many national laws exclude from extradition political offences the so-called ‘political offence exception’ and terrorism could be easily classified as a political offence.20 Article 6 of the 1988 SUA Convention dealing with state jurisdiction is the result of a compromise. It maintains as central the principle of flag state jurisdiction, while giving a role to the coastal state and to the state of the offender (active personality principle). States parties are obliged to establish such grounds for jurisdiction within their respective national legal systems (so-called mandatory grounds for jurisdiction). These jurisdictions are not fully and always in concurrence.21 Flag state jurisdiction is an alternative to the coastal state one once the offence occurs in its territorial sea. In this case the criteria to be followed to permit coastal state jurisdiction to prevail are set out by Article 27 UNCLOS: if the consequences of the crime extend to the coastal state, if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea, if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag state, or if such measures are necessary for the suppression of illicit traffic in narcotic drugs or ­psychotropic substances. The jurisdiction of the state of the offender is an alternative to that of the flag state if the offence occurs on the high seas, and to that of the coastal state if the offence occurs in its territorial sea or in its territory. No indication is contained in the 1988 SUA Convention on the rules to apply to determine the prevailing jurisdiction. But states parties can establish other grounds for jurisdiction (to be notified to the secretary general of the IMO), the so-called optional grounds for jurisdiction: the jurisdiction of the state where the offender, if stateless, has his permanent residence; the jurisdiction of the state of the victim (the passive personality principle) and the jurisdiction of the state compelled to do or abstain from doing any act. It can be argued that the mandatory grounds for jurisdiction prevail over the ­compulsory ones for simple reasons of juridical logic. It can also be argued that the strongest ground for jurisdiction is that of the flag state if Article 6 is interpreted in light of Article 11.5. The

20 A.C. Petersen, ‘Extradition and the Political Offence Exception in the Suppression of Terrorism’, Indiana Law Journal, Vol. 67, No. 3, 1992, pp. 767 et seq., McDorman 2010, p. 252. 21 T. Treves, The SUA Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, in Ronzitti 1990, pp. 69 et seq., Tuerk 2008, pp. 67 et seq.

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6  International Terrorism at Sea  latter provides that the state, having received two or more requests for extradition and not intending to prosecute the offender, must select another state to extradite, having “due regard to the interests and responsibilities” of the flag state. The obligation to extradite, following the principle aut dedere aut judicare, completes the set of rules on the exercise of jurisdiction. This obligation is strongly secured. Not only must the offences listed in the Convention (and in the 2005 SUA Protocol) be deemed included in any extradition treaty existing between states parties, but states parties are also called upon to insert the same offences in every new extradition treaty to be concluded by them. Moreover, the obligation to extradite does not necessarily depend on the existence of an extradition treaty since the requested state – in the absence of an extradition treaty – may consider the 1988 SUA Convention as a legal basis for extradition. Lastly, extradition is facilitated by the provision doubling the locus in quo to the purpose of extradition; to this end, the relevant offence is considered committed either in the place where it ­occurred or within the jurisdiction of the state requesting extradition. In conclusion, the outcome of the multiplication of the grounds for jurisdiction along with the obligation to extradite is to avoid any risk of impunity for terrorists at sea. Some doubts arise on the practical application of these rules because of the difficulty in interpreting ambiguous provisions since they are designed to satisfy opposing states’ interests and claims. The state that apprehends the offender will be in a position to impose its ground for jurisdiction over the others provided for by the 1988 SUA Convention unless it agrees to extradite the offender. 6.5 Prevention and Suppression of Terrorism at Sea: The Limited Cooperation Between States Only Article 14 of the 1988 SUA Convention is dedicated to interstate cooperation in preventing the commission of the offences listed in the Convention itself. The provision establishes that the state having reason to believe that an offence under the Convention will be committed has to furnish, in accordance with its national law, as promptly as possible any relevant information in its possession to those states that it believes would be the states having established jurisdiction. This provision is rather vague and is limited by the reference to existing national law on the exchange of information. States parties are not obliged to adopt national measures to make the transfer of information on terrorism possible and, therefore, the absence of such legislation could avoid or limit the functioning of Article 14. The 2005 SUA Protocol does not alter the layout of the 1988 SUA Convention. It only provides for a mechanism to allow enforcement measures by third states on the high seas. But this is the only lacuna of the 1988 SUA Convention dealt with by the Protocol as far as cooperation in preventing and suppressing terrorism at sea is concerned. Under both treaties, counterterrorism at sea is achieved mainly through the criminalization of certain 117

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Ida Caracciolo conduct and the provision of different grounds for jurisdiction.22 The interstate cooperation in enforcement measures to prevent or suppress terrorism at sea is in the background, with the right to visit excepted. Detailed measures focused on prevention have to be looked for elsewhere. Nowadays these measures are provided for by the International Ship and Port Facility Security Code (the so-called ISPS Code) and through amendments to the 1974 SOLAS Convention, contained in its new Chapter XI-2 implementing the ISPS Code, both adopted by the IMO Diplomatic Conference held in 2002. The 1974 SOLAS Convention and the ISPS Code outline and clarify the global regime of prevention for the security of navigation that has been in force since 1 July 2004. The ISPS Code establishes in a detailed manner the security conditions to be followed by governments, port authorities and shipping companies in a section containing binding rules (Part A) along with some recommended guidelines concerning the ways to implement these conditions (Part B). The ISPS Code provides for a series of preventive measures against security incidents intended as those suspicious acts or circumstances threatening the security of a ship. It does not apply to all vessels but only to ships on international voyages, which include passenger ships and cargo ships of 500 gross tonnages and above. Warships or other government ships not used for commercial services are excluded from the ISPS Code’s field of application, as are fishing vessels.23 The main aims of the ISPS Code are to establish an international framework involving cooperation between states parties, government agencies, local administrations and the shipping and port industries to detect and assess security threats and take preventive measures against security incidents affecting ships or port facilities; to establish the effective roles and responsibilities of all these parties concerned, at the national and international level, for ensuring maritime security; to guarantee the early and efficient collation and exchange of security-related information24; to provide for a methodology for security assessments so as to have in place plans and procedures to react to changing security levels; and to ensure confidence that adequate and proportionate maritime security measures are in place.

22 The 2005 SUA Protocol also tries to facilitate the exercise of jurisdiction through standard measures such as transfer of the detained or the person serving a sentence in the territory of one state party for purposes of identification, testimony or otherwise providing assistance in obtaining evidence for the investigation or prosecution of offences in another state party (Art. 12bis). 23 Klein 2011, pp. 156 et seq. 24 In particular, the ISPS Code envisages that a ship wishing to enter a port must provide security information prior to its entry. A refusal to provide such information may lead the port state to deny entry into the port. The port state is also allowed to inspect the ship within the territorial waters in case of its non-compliance with the requirements of the 1974 SOLAS Convention (Chapter XI-2) and ISPS Code (Part 2). The port state may also verify if the ship holds an International Ship Security Certificate proving its compliance with the 1974 SOLAS Convention (Chapter XI-2) and ISPS Code (Part 2).

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6  International Terrorism at Sea  These objectives are achieved by the designation of appropriate officers and people on each ship, in each port facility and in each shipping company to prepare and to put into effect the security plans that are approved for each ship and port facility.25 6.6 The Right to Visit for Counterterrorism in the 2005 SUA Protocol The 1988 SUA Convention does not establish any means to exercise enforcement jurisdiction at sea in order to obtain control of the vessel and the offenders. Article 9 clearly establishes that “[n]othing in this Convention shall affect in any way the rules of international law pertaining to the competence of States to exercise investigative or enforcement jurisdiction on board ships not flying their flag.”26 On this point the Convention refers to the relevant provisions contained in UNCLOS. The coastal state can exercise its enforcement jurisdiction on foreign vessels navigating in its internal waters, territorial sea and contiguous zone, but the principle of the exclusive jurisdiction of the flag state jurisdiction is applicable on the high seas (Art. 92.1): the ship under the flag of a state is subject to the exclusive jurisdiction of that state, save in exceptional cases expressly provided for in international treaties or in UNCLOS itself. The 1988 SUA Convention could have implemented Article 92, providing for a specific regime for the right to visit foreign ships on the high seas, as did other subsequent treaties concerning other sectors: the 1988 United Nations Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances,27 the 1995 Council of Europe Agreement on Illicit Traffic by Sea Implementing Article 17 of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,28 the 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks,29 and the 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air Supplementing the UN Convention against Transnational Organized Crime.30 On the contrary, the 1988 SUA Convention fully supports the principle of the exclusive jurisdiction of the flag state. In other words, the 1988 SUA Convention does not limit the enforcement jurisdiction of the flag state on the high seas but only affects its jurisdiction to adjudicate, providing for new grounds for jurisdiction besides that of the flag state. This lacuna is filled by the 2005 SUA Protocol.

25 Coastal states are responsible for establishing and developing Port Facility Security Plans and training Port Facility Security Officers, while flag states are responsible for adopting and implementing Ship Security Plans. 26 C.C. Joyner, ‘Suppression of Terrorism on the High Seas: The 1988 IMO Convention on the Safety of Maritime Navigation’, Israel Yearbook on Human Rights, Vol. 19, 1990, p. 357, Klein 2011, p. 153. 27 . Some bilateral agreements against the illicit traffic of drugs contain provisions on the right to visit ships on the high seas. 28 . 29 . 30 .

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Ida Caracciolo The proposition to insert the possibility of exercising the right to visit foreign ships on the high seas was advanced later during the negotiations of the 2005 SUA Protocol and came from the United States, which wanted to seize on the developments reached in the above-mentioned treaties and reinforce the political – not legally binding – instrument of the PSI. The mechanism concerning the right to visit by the non-flag states envisaged by the 2005 SUA Protocol is the most advanced one in comparison with the others listed above.31 It does not contemplate exceptions to the flag principle, but it envisages the possibility for other states to be allowed by the flag state to visit and take some measures on board the ship flying its flag on the high seas. In this way the 2005 SUA Protocol mediates between the interest to protect national security – and even international peace and security – against terrorism and the interest of guaranteeing the principle of freedom of navigation and the connected principle of the exclusive jurisdiction of the flag state.32 On the basis of the principle of the exclusive jurisdiction of the flag state, the procedure the other state must follow to request the necessary authorization by the flag state to board its ship on the high seas is set out in Article 8bis. The use of the expression “authorisation” in this article clearly underlines the full jurisdiction of the flag state and excludes any intention to recognize any right to intervene on the requesting state if the flag state does not so consent. The procedure can be activated only if the ship is located “seaward of any state’s territorial sea” (Art. 8bis.5). This means that the boarding of foreign vessels is under the sovereign power of the coastal state within its territorial sea since a vessel engaged in terrorist activities does not enjoy the right of innocent passage anymore. In the contiguous zone, the coastal state can exercise enforcement jurisdiction only within the legal framework given by Article 33 UNCLOS, namely to prevent infringement of its customs, fiscal, immigration or health laws and regulations within its territory or territorial sea; and/or punish infringement of the above laws and regulations committed within its territory or territorial sea. The infringement of its criminal law is not contemplated by the above provision as well as the need to prevent or protect its national security. Therefore, it seems difficult to conceive the boarding of a foreign ship by the coastal state owing to counterterrorism at sea in its contiguous zone. Furthermore, no role at all can be recognized for the coastal state in counterterrorism in its exclusive economic zone. The sovereign rights and jurisdictions attributed to the coastal states in the exclusive economic zone by UNCLOS (Art. 56) do not include the exercise of powers of enforcement towards and on board ships engaged in terrorism at sea. The freedom of navigation still exists in the exclusive economic zone and so does the principle of exclusive jurisdiction of the flag state (Art. 58). The flag state or the requesting 31 Klein 2011, pp. 175 et seq. 32 J.L. Jesus, ‘Protection of Foreign Ships Against Piracy and Terrorism at Sea: Legal Aspects’, The International Journal of Marine and Coastal Law, Vol. 18, No. 3, 2003, p. 396.

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6  International Terrorism at Sea  state – duly authorized to visit the vessel in order to combat terrorism at sea – must have due regard to the rights and duties of the coastal state within its exclusive economic zone when intervening on board the vessel.33 The existence of “reasonable grounds to suspect” that the ship or a person on board the ship has been or is about to be involved in the commission of an offence set forth in the 1988 SUA Convention and the 2005 SUA Protocol is at the basis of the request for authorization by the requesting state. On this point the provision is in line with the abovementioned treaties in relation to intervention on the high seas. Information, evidence or proof giving rise to the “reasonable grounds to suspect” must not necessarily be made known to the flag state under Article 8bis. Actually, this provision does not indicate the content of the request, but it is quite obvious that in practice the requesting states will do their best to be persuasive with regard to the flag state. The flag state may authorize the visit to a ship flying its flag on the high seas following one of the three authorization procedures envisaged by Article 8bis of the 2005 SUA Protocol. 6.6.1

Case-by-Case Authorization

The flag state may issue the authorisation case by case. This option simply implements the classic customary principle of the exclusive jurisdiction of the flag state on the high seas in the field of counterterrorism at sea. The latter state maintains full control over its vessels on the high seas, since it only assumes the obligation to give an answer, positive or negative, to the requesting state, as expeditiously as possible. Pursuant to Article 8bis.5(c) the flag state may expressly authorize the requesting state to board and to take appropriate measures.34 Because of the principle of the exclusive jurisdiction of the flag state, the measures that could be taken are already outlined by Article 8bis.5(b). The list therein contained is not exhaustive, but it clearly limits the discretion of the requesting state. Moreover, the flag state may subject the authorization to any condition. On the contrary, the reference to the conditions provided for in the subsequent paragraph 7 does not reduce the discretion of the flag state since this provision is rather vague in its content. But the flag state may also combine an authorization with the decision to conduct the boarding and search together with the requesting state, so significantly limiting the intervention by the requesting state. The flag state may also decline to authorize a boarding and search either expressly or by silence once a certain period of time has passed. In other words, the silence consists in denying the authorization. In order to avoid any doubt on the attitude of the flag state, it would have been better to fix a precise but flexible deadline to express the necessary 33 Klein 2011, p. 175. 34 The request for authorization must follow the confirmation of the nationality of the vessel.

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Ida Caracciolo authorization. This solution is adopted by the 1995 Council of Europe Agreement on Illicit Traffic by Sea Implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Article 7 sets a time limit of four hours “wherever practicable” for the flag state to give an answer on the boarding and inspection, and once the time has elapsed, the consent is considered as refused. Lastly, Article 8 bis.5(b) recognizes that “the flag State shall […] conduct the boarding and search with its own law enforcement or other officials.” This provision seems superfluous: obviously, the flag state can board and visit the vessels flying its flag: the competence stems from the flag state principle. Therefore, the question is whether it is possible to interpret the rule as imposing on the flag state the obligation to board and search when it declines to authorize the requesting state to do that. Only such an interpretation could give meaning to this rule. 6.6.2

Implicit Prior Authorization after Four-Hour Wait

Pursuant to Article 8 bis.5(d), a state party, upon or after depositing its instrument of ratification or analogous instrument, may notify the Secretary General of the IMO that it grants authorization to board and search the ship flying its flag if there is no response from it within four hours of acknowledgement of receipt of a request to confirm nationality. This provision does not alter at all the right of the flag state to exercise exclusive jurisdiction by configuring an exception, albeit very strict, to this right. It only envisages the possibility that the flag state can permit other states parties to board its vessel under a certain time condition. The exercise of this possibility is relied on the flag state only. Article 8bis.5(d) contains an opt-in clause that the flag state is free to utilize or not.35 The flag state can also withdraw its opting-in. Moreover, once it has decided to opt in, the implicit prior authorization will not function automatically: the flag state has four hours to manifest its different attitude to the requesting state. The four-hour limit has been considered as a very short time for the requested state to make all necessary checks and for the masters of vessel to be informed about the boarding by a foreign vessel.36 But presumably if the respect of the four-hour time limit was impracticable by the flag state, it could simply deny, without any further delay, its authorization. 6.6.3

Implicit Prior Authorization without any Time Limit

Again, upon or after depositing its instrument of ratification or other analogous instrument, a state party may notify the Secretary General of IMO that it authorizes the requesting party to board ships flying its flag (Art. 8bis.5(e)). This is another opt-in clause affecting more strongly the flag state’s exclusive jurisdiction. In other terms, by utilizing such a clause, the flag state gives its consent, once and for all, 35 During negotiations, a proposal of opting out clause was presented. Under this proposal, the implicit authorization rule could have been avoided by a state party by notifying its exclusion to the IMO Secretary General. 36 Klein 2011, p. 180.

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6  International Terrorism at Sea  to the boarding of vessel flying its flag for reasons of counterterrorism. In any event, the limitation of the flag state’s exclusive jurisdiction derives only from its free consent. The 2005 SUA Protocol just provides for a possibility and does not impose any manifestation of consent. And the consent can be withdrawn at any time. The withdrawal is to have effect immediately unless the withdrawing state decides for it to be effective after a certain period of time. This regime of prior authorization is rather innovative compared with those established by other treaties. For example, the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime of 2000 envisages only consent case by case by the flag state concerning the right of visit on the high seas (Art. 8).37 On the contrary, the UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks of 1995 establishes the boarding and inspection of fishing vessels on the high seas on the basis of sufficient grounds of violation of the rules on fishing and without any specific consent by the flag state of the fishing vessel (Art. 21).38 The few states that have ratified the 2005 SUA Protocol have been very cautious towards implicit authorization, even with all the above-mentioned limitations. None of these states accepted one or the other opt-in clause. Moreover, further to Article 8bis.15, only one state (Latvia) has designated the authority or the authorities competent to receive and respond to requests for assistance, for confirmation of nationality, and for authorization to take appropriate measures. Even if this designation does not mean anything with respect to both opt-in clauses, states preferred to abstain from any declaration that could, even remotely, imply implicit authorization to board a vessel flying their flags. Therefore, state practice underlines how thorny and delicate it can be to touch on the principle of the freedom of navigation and the principle of exclusive flag state jurisdiction even to prevent and suppress a threat to international peace and security such as terrorism. The fact that terrorism at sea and the shipping of weapons of mass destruction are not confined to specific vessels but can concern almost all commercial vessels makes it more difficult for the states to accept any regime of global ship-boarding based on an automatic mechanism of consent to visit foreign vessels.39

37 Most recently, a draft agreement adopted on 2002 within the European Union on the cooperation between EU member states customs administrations against the illicit traffic of drugs on the high seas provides for the express renunciation by the flag state to its exclusive jurisdiction. If the flag state does not renounce, the intervening state must release the vessel to the flag state authorities. 38 R. Wolfrum, ‘Fighting Terrorism at Sea: Options and Limitations Under International Law’, in Nordquist et al. 2008, p. 21. 39 McDorman 2010, pp. 254 et seq.

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Ida Caracciolo 6.6.4

Ship-Boarding Procedures and Follow-Up

The ship boarding, once authorized, must be conducted following certain standards and safeguards indicated in Article 8bis.9, to ensure its consistency with the principles of international law. In particular, the intervening state must protect the persons on board, the safety and the security of the ship, the interests, commercial or legal ones, of the flag state. But, above all, the use of force is to be limited when necessary to ensure the safety of officials and persons on board, or where the officials are obstructed in the execution of the authorized actions. In any event, the intervening state must reduce to the minimum the degree of force according to what is necessary and reasonable, taking into account the particular circumstances of the intervention. This provision is rather vague and could probably give rise to some interpretative contrasts. If the visit leads to a detection of one of the offences listed in the 1988 SUA Convention or the 2005 SUA Protocol, the intervening state must promptly inform the flag state. The latter may authorize the detention of the ship, cargo and people on board, but in any event, it retains the right to exercise jurisdiction pursuant to Article 8bis.6. It may consent to the exercise of jurisdiction by another state, provided that this has legal ground for jurisdiction under Article 6 of the 1988 SUA Convention. The consent of the flag state cannot at all modify or introduce new grounds for jurisdiction, derogating from Article 6. On the contrary, if the visit does not confirm any of the suspected offences, the intervening state must pay compensation for any damage, harm or loss attributable to it arising from measures pursuant to Article 8bis. 6.7 The Right to Visit for Counterterrorism beyond the 2005 SUA Protocol For these grounds scholars try to find a legal basis for the boarding of a foreign vessel on the high seas. It has been argued that if the vessel is completely under the control of terrorists intending to utilize it as a weapon, it can be considered without nationality, and therefore Article 110 UNCLOS authorizing the right to visit by any warship on the high seas would apply.40 It has also been considered that under Article 88 UNCLOS the high seas are reserved for peaceful purposes. Since this is an erga omnes provision, its violation would allow the intervention – the right to visit – by any state party on the vessel utilized for terrorism.41 These suggestions are very interesting, but they are open to criticism. The only certain basis for any right to visit foreign vessels on the high seas can be founded on a specific 40 Wolfrum 2008, p. 35. 41 S.E. Logan, ‘The Proliferation Security Initiative: Navigating the Legal Challenges’, Journal of Transnational Law & Policy, Vol. 14, No. 2, 2004-2005, p. 268; Wolfrum 2008, pp. 27 et seq.

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6  International Terrorism at Sea  agreement between the two states concerned: the requesting state and the flag state. As far as Article 8bis.15 is concerned, it specifically envisages the conclusion by states parties of agreements or arrangements between them to facilitate law enforcement operations ­carried on in accordance with the provisions of the 2005 SUA Protocol. Obviously any broadening of the right to visit or cooperation on the right to visit can be more easily ­established and regulated on a bilateral basis than at a multilateral level. Numerous bilateral agreements on ship boarding, establishing mechanisms for implied authorization to board foreign vessels, have been concluded by the United States.42 Most of these agreements are with so-called ‘open register’ States giving the United States – on mutual terms – the opportunity to board and inspect a large number of vessels suspected of transporting weapons of mass destruction. The main characteristic of these agreements consists in allowing the right to visit foreign vessels through a rather standardized ship-boarding procedure. Once the nationality of the suspected ship has been confirmed, the authorization can be accorded expressly by the flag state for the boarding and search of the ship, the cargo and people on board or denied. The response to the request for authority to board must be given in a very short time: four hours according to certain agreements, or two hours according to other agreements, even if some additional time to respond can be demanded. But the singularity of the procedure resides in the mechanism of implicit consent to the right of visit when the time has elapsed without any response by the requested state. Clearly, very often the consent for authorization would be given implicitly since the time to respond is very short. Therefore, it is as if the state requested has already consented, once and for all, to the boarding of the vessels flying its flag on the basis of the bilateral agreement, unless it does not deny it expressly within the indicated time limit.43 No exceptions to the principle of the exclusive flag state jurisdiction and the principle of the freedom of navigation can be found elsewhere. Both principles are also safeguarded by the Proliferation Security Initiative, initiated by the United States in 2003, to prevent the shipment of weapons of mass destruction and related materials at sea. As it is well known, PSI, even if it is only of a political nature and is not binding on the participant states, seeks to be consistent with international law principles, as it is clear in the Statement of Interdiction Principles at its basis.44 This consistency concerns also the principle of the exclusive jurisdiction of the flag state. Therefore, the visit to foreign-flagged vessels can take place only if the consent of the flag state has been previously obtained.45 Anyway, one of 42 The agreements are with Liberia (2004), Marshall Islands (2004), Panama (2004), Belize (2005), Croatia (2005), Cyprus (2005), Malta (2007), Mongolia (2007), Bahamas (2008), Antigua and Barbuda (2010), and Saint Vincent and the Grenadines (2010). 43 Klein 2011, p. 183. 44 Around 102 states are participating in PSI. 45 V. Eboli, ‘The Proliferation Security Initiative (PSI) and the Fight Against Terrorism on the High Seas’, in K. Chainaglou et al. (Eds.), International Terrorism and Changes in International Law, Aranzadi, Cizur Menor, Spain, 2007, pp. 164 et seq.

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Ida Caracciolo the commitments of the participating states is to enforce controls on vessels flying their flag on the high seas. Both principles are respected by North Atlantic Treaty Organization (NATO) in the Active Endeavour operation started in 2001. Under this Operation NATO ships are patrolling the Mediterranean and monitoring shipping to help detect, deter and protect against terrorist activity. Since 2003, NATO has been systematically boarding suspect ships and these boardings take place with the consent of the flag states. In conclusion, apart from treaty rules, the only exceptions to the principle of the exclusive jurisdiction of the flag state in the field of counterterrorism at sea can derive from the exercise of the right of self-defence under Article 51 of the UN Charter and when the UN Security Council, acting under Chapter VII, requests states to patrol the high seas and check every ship on the high seas independently of the flags they fly to maintain peace and international security.

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7

Piracy and Somalia: The Few Advantages and the Many Drawbacks of International Cooperation

Francesca Graziani* 7.1 International Cooperation: The ‘Watchword’ for Tackling Somali Piracy Since 2008, one of the most important military fleets in recent history has been deployed in the Gulf of Aden. The multinational fleet, which acts on the mandate of the United Nations Security Council, is striking not just in terms of the number of navies but more significantly in terms of the varied nature of the military units. The naval forces include frigates that operate under the leadership of the European Union (Operation Atalanta), NATO (Operation Ocean Shield), the multinational task force known as Combined Task Force 151 (CTF 151), together with the air and naval forces of numerous states that have intervened unilaterally to restore stability to the transoceanic shipping routes (Saudi Arabia, China, South Korea, Japan, India, Iran, Yemen, Malaysia and Russia). This imposing military force was assembled to patrol the seas wave by wave in order to counter the sea devils – jinn in Arabic – an ill-defined and unruly rabble of about 1,500-2,000 individuals, to judge from the most reliable analyses. International bodies were quick to emphasize that acts of piracy have fallen in 2012. The year 2009, the annus horribilis of piracy, was followed by a rather alarming 2010 and then a particularly ill-omened 2011 for merchant shipping. However, during the first six months of 2012, there has been a sharp decline in piracy with a significant reduction in the number of raids and the rate of successful attacks. The data of the International Maritime Organisation (IMO), updated to 16 August 2012, recorded 70 attacks, as opposed to 163 for the first six months of 2011, of which 13 led to the capture of the vessel.1 The available data would therefore seem that vigorous patrolling of shipping lanes has proved successful and is continuing to do so. Having embarked on the main route, the international community is on the verge of re-establishing order at sea and declaring vociferously what Augustus wrote about himself in the Res gestae: mare pacavi a praedonibus.2 * 1 2

Associate Professor of International Law, University of Naples 2. Cf. . Res gestae divi Augusti (Part I, 4).

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Francesca Graziani However, numbers and statistics only tell part of the complex story of a phenomenon, which, from the middle of 2000, has gradually become a more complicated issue to solve. Anyone who has the patience to go beyond these numbers, interpret them critically and wade through the documents of international organizations that have been tackling Somali piracy for many years would realize that there is little to cheer about. The statistics cannot disguise a much more slippery and miry situation than the exact sciences would have us believe. The actions of the international community reveal persistent flaws, which are hard to accept four years after the deployment of military naval forces off the Somali coast and, even more seriously, the lack of credible medium-term strategies. While states, intergovernmental organizations, ship owners, analysts and specialist scholars all agree that Somali piracy can only be tackled through effective international cooperation, the meaning of ‘cooperation’, i.e. reinforcing the concerted action of states and international organizations, seems to be becoming increasingly less pacific. The risk is that the expression ‘cooperation to combat Somali piracy’ merely becomes a label, an empty formula or a mystical mantra; the more obsessively it is repeated, the more the underlying weakness, and in some cases hypocrisy, of the states of the international community, are revealed. 7.2 The Origins of the International Community’s Intervention in the Gulf of Aden Between Customary International Law and UN Security Council Resolutions The analysis begins from an area of land measuring 637,540 km2 with a coastline that runs for 3,025 km, which occupies the tip of the Horn of Africa. Maps refer to this piece of land as Somalia. In terms of international law, this vast area is the prototype par excellence of the failed state, lacking internal order and therefore legal subjectivity. Since 1 July 1960, the day of independence, Somalia has been beset by conflict. It was at war with Ethiopia twice in 1964 and 1977. In 1969 the president-dictator Muhammad Siad Barre came to power after a coup d’etat, but since the late 1970s, it has been the battleground for intermittent conflict between central government and guerilla movements hostile to the regime. Since 1991, following the ousting of the General Barre regime, the tribal clans clashed in a bloodthirsty struggle for power. In the same year, the northern region of Somaliland declared independence, while in 1998 Puntland declared itself to be a semi-autonomous region. The rest of the country was under the control of warlords who could not come to an agreement about the succession. This marked the start of a civil war, stirring up a hornet’s nest, which has practically never been becalmed. Since 2000 a process of conciliation has begun, but it still has a long way to go. In 2004, the Transitional Federal Government (TFG) was set up under the auspices of the UN. However, its effectiveness has been thwarted by many local groups and by separatist factions in Somaliland and Puntland. The disturbances continued to spread, especially in the

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7  Piracy and Somalia south, owing to the increasing acts of terrorism by Islamic fundamentalist movements, the most famous of which is the Al-Shabaab militant group. Security levels are constantly at risk, and in 2008 this led to the resignation of President Abdullahi Yusuf Ahmed, who gave up hope of seeing peace in Somalia. He was replaced the following year by Sheikh Sharif Ahmed, who, in June 2010, was forced to declare another state of emergency. Since 6 September 2011, the day that the ambitious roadmap for Somalia was approved, he has been at the head of the troubled transitional process, which is supposed to lead to the new parliament, sworn in during August 2011, to elect a new president. It is necessary to place Somalian piracy in context to gain a better understanding of its causes and effects. It is particularly widespread in the region of Puntland, 800 km of coastline stretching from Cape Hafun, the eastern tip of the Horn of Africa, as far as Garacad. This criminal phenomenon has literally exploded within a general framework of the chronic weakness of central government, which has crumbled in the hands of the different local communities and is incapable of providing even the slightest opposition to pirate attacks.3 Piracy was widely believed to have been relegated to the realm of history and legend, as well as to the unforgettable pages of adventure novels. However, since the second half of the year 2000, piracy has spread like wildfire, with an exponential increase in attacks on all types of vessels, with growing levels of danger, as shown by the widespread seizure of ships and the kidnapping of their crews. As is well known in customary international law, piracy consists of any act of depredation or violence committed for private ends by a private ship on the high seas against another ship or against persons or property on board such a ship. General international law – which has recently been codified in the UN Convention on the law of the sea of 1982 – imposes serious consequences on this ancient infringement in order to ensure freedom of navigation and the security of maritime traffic: in a departure from the principle according to which ships on the high seas are subject to the exclusive jurisdiction of the flag authorities, each state has the power to stop and capture a pirate vessel, whatever its nationality and the citizenship of the pirates. If the above offers a brief summary of the current state of international law, it should be emphasized that the attacks and armed robberies in Somali waters have highlighted the inadequacy of UNCLOS measures for coping effectively with pirate attacks. The definition of maritime piracy would seem to be too narrow in the light – at least in its original forms – of recent violence and raids. This is because the definition does not apply when the crime is committed in a state’s territorial waters, since in this case they are not deemed to be acts of international piracy (or piracy juris gentium) but acts of armed robbery. On the other hand, even when the pirates launch attacks in international waters, foreign forces are 3

SC Res. 436 (2007); SC Res. 146 (2009).

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Francesca Graziani forbidden from continuing their pursuit of the marauders into Somali territorial waters without specific authorization from the coastal state.4 This evident anomaly led to the intervention of the UN Security Council. Considering the incapacity of central institutions to tackle either piracy on the high seas or cases of armed robbery in territorial waters, the Security Council adopted Resolution 1816 on 2  June 2008 from Chapter VII of the UN Charter. With regard to acts of piracy, the Council requests member states whose military vessels operate in international waters off Somalia to prevent and combat pirate raids in accordance with the UN Convention on the law of the sea. With regard to acts of armed robbery in territorial waters, the Council authorizes states to patrol the territorial waters of Somalia for a temporary period (six months) and with the prior consent of the TFG, adopting similar measures to those that can be undertaken on the high seas.5 The subsequent resolutions of the Security Council until Resolution 2020 of 22 November 2011 have gradually extended the time limits of the intervention of foreign military ships in Somali territorial waters; otherwise, they have merely restated the contents of Resolution 1816. However, Resolution 1851 of 16 December 2008 has introduced significant new measures. With this Resolution, the Security Council has significantly extended the mandate of the states operating in the area, authorizing them to take all necessary measures that are appropriate in Somalia; this wording refers to the possibility of conducting land-based operations as well in order to free hostages, capture pirates and destroy their logistical bases.6 Under the auspices of Resolution 1851, the Contact Group on Piracy off the Coast of Somalia (CGPCS) was set up on 14 January 2009 to handle problems linked to anti-piracy operations and to coordinate the efforts of states and i­nternational bodies. Within the context of the CGPCS, states and international o ­ rganizations (the UN, EU, NATO, the African Union, the League of Arab States, IMO, Interpol) have spent the last three and a half years studying the most effective ways of preventing and combating Somali piracy. 7.3 The Modest Results of International Cooperation: ‘Catch and Release’ Practices and the Lack of Jurisdiction over Piracy As already mentioned, an unprecedented multinational naval force operating under the aegis of the UN Security Council has been operative in the Gulf of Aden and the Indian Ocean since 2008. In 2012, four years after the start of naval operations, the first successful attempts were made to combat the Somali jinn. Although experts are cautious about being 4 5 6

In the case of Somalia, there are uncertainties about the extent of territorial waters. Although Somalia is part of the UN Convention on the law of the sea, which states that territorial waters extend for 12 miles, the Somali Law No. 37 of 10 September 1972 extends territorial waters to 200 miles from the coast. SC Res. 1816 (2008), para. 7. SC Res. 1851 (2008).

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7  Piracy and Somalia unduly optimistic and raids are set to increase as from October, the end of the monsoon season, it is still true that the number of crimes has been halved during the first six months of 2012 compared with the same period in 2011. The international community was able to breathe a sigh of relief. Until the end of 2011, the atmosphere was far from serene. The stubbornness of the ‘sea devils’ caused alarm among the international community. It was also a source of embarrassment to the states participating in the anti-piracy operations who were called on to justify the exorbitant costs of missions whose effectiveness caused serious doubts.7 The significant reduction of the phenomenon was due to a series of clearly defined factors. Over the last year, the naval patrol forces have carried out more incisive actions, as is demonstrated by the extension of the mandate of Operation Atalanta. In May 2012, Operation Atalanta destroyed the logistical emplacements of the pirates along the central Somali coast with an air raid. Secondly, the reduction in the effectiveness of raids is also due to the fact that merchant ships have generally adopted the best management practices for protection against Somalia-based piracy laid down by the IMO. The best practices range from security plans for shipping to the strengthening of safety and defence measures (alarm systems, satellite equipment, electronic barriers, flares, fire hydrants, etc.).8 Lastly, it should not be forgotten that an increasing number of ship owners have resorted to private defence of their ships. About 40% of ships going through the Gulf of Aden or the Indian Ocean are accompanied by military protection units (Vessel Protection Detachments) or private armed guards (Contracted Armed Security Personnel, according to the IMO definition).9 The use of military personnel on board merchant ships does not raise significant legal or practical issues and is even encouraged by the European Union, NATO and the UN’s Contact Group, since states maintain control over the military personnel on board private vessels without facing the costs, which are borne by 7

The annual cost of maintaining a frigate is 30 million euros a year, while a maritime patrol plan costs 20 million euros a year. 8 IMO, Best Management Practices for Protection against Somalia Based Piracy (Version 4 – August 2011), MSC.1/Circ.1339, 14 September 2011 . 9 In Italy, the Decree passed on 12 July 2011, No. 107, converted with modifications into the Law of 2 August 2011, No. 130, provides for the deployment of Vessel Protection Detachments (VPDs) and Contracted Armed Security Personnel. With regard to the Vessel Protection Detachments on board merchant vessels sailing under the Italian flag, the Italian Ministry of Defence is authorized to draw up agreements with private shipowners (represented almost entirely by Confitarma and, with regard to fishing vessels, by Federpesca) for the embarkation of Vessel Protection Detachments (VPDs) at the request of shipowners who have to bear the cost; the detachments consist of staff from the Navy with addition of personnel from other armed forces. The VPD personnel are required to operate in accordance with the directives and rules of engagement issued by the Italian Ministry of Defence. The use of private armed guards is considered to be a second choice compared with the VDPs. The private personnel must be chosen from people who have already served in the Armed Forces, even as volunteers, and who have attended special theoretical and practical courses. Private guards can use weapons that are equipped as standard on ships; weapons are held with the authorization of the Italian Interior Ministry.

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Francesca Graziani ship owners. However, the privatization of security arrangements does lead to problems regarding the patrolling of the seas, which, according to customary law, is the exclusive responsibility of warships or ships acting on behalf of the government. The shortcomings of international anti-piracy operations represented the perfect opportunity for the creation of various private companies offering defence services to shipping companies operating in dangerous maritime zones.10 Somali piracy has ended up enriching not only pirates but also the increasing and ever more prosperous private security industry. This has become a flourishing business if it is considered that defence involves costs of 40,000-50,000 dollars for each journey and the presence of private guards on board vessels has increased by 25% in 2011 to reach a total of 530 million dollars. Shipowners, caught in a stranglehold by pirates and insurers, are prepared to spend these vast sums of money in the pirate-infested seas to prevent the even higher costs they would have to face in the event of the capture of a vessel. The series of factors outlined above have therefore led to a drastic reduction in acts of piracy. Nevertheless, it remains unlikely that this criminal phenomenon will soon be confined to the realm of folk legend. Two distinct, though interconnected, problems that have emerged since June 2008, hang like a cloud over the fight against Somali piracy and have yet to find a satisfactory solution: the first is a problem of jurisdiction involved in identifying who should be responsible for bringing captured pirates to justice: the second regards the issue of enforcing punishment since it is necessary to identify the states on whose territory the pirates should serve their sentences. Given the lack of adequate solutions to these two pressing issues, the action conducted by marine forces is destined to reveal itself for what it already appears to be to attentive observers: an inadequate stopgap solution that will not have a lasting effect and is extremely unlikely to be economically sustainable in the long term. In principle, the responsibility for bringing pirates to justice lies with the states that capture the pirates or with the states of the flag under which the attacked ships are sailing or else on the states of the victims. This is only a principle, since international law does not lay down binding obligations in such cases. As is well known, the Convention of Montego Bay, in line with customary law, while calling on states to cooperate to the fullest possible extent in the repression of piracy (Art. 100), does not require signatories to make piracy a criminal offence within their respective legal systems. Instead, the Convention simply states that each state can confiscate a pirate ship on the high seas and can arrest the people on board and confiscate their property (Art. 105). The general nature of the text of the UN Convention is not belied by the resolutions of the Security Council, which, since

10 The IMO, which has always been opposed to the use of private armed personnel on board vessels, has recently softened its position after pressure from shipowners who are members of IPTA (International Parcel Tanker Association). V. MSC. Circ. 1405, MSC. Circ. 1406 (2011).

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7  Piracy and Somalia Resolution 1816 (2008), has merely made a general appeal to all states, asking them to cooperate in deciding the jurisdiction over pirates captured by warships.11 This is the necessary starting point and, in a sense, the heart of the problem for any analysis of the repression of Somali piracy. This is because the wide discretionary power in this area granted to states prevents effective action from being taken to tackle a criminal phenomenon, which, in principle, the international community is committed to combating. States patrolling the waters off the Somali coast have displayed a firm and unshakable stance on taking no responsibility for bringing pirates to justice; an exception to this rule is when significant national interests are at stake, such as when acts of piracy are committed against its own vessels or citizens. Military units restrict themselves to carrying out operations designed to thwart raids but do not proceed to capture those responsible. The toughest action that is usually taken is to surround pirate vessels or have helicopters fly over them in order to discourage them or make them give up an attack. When capture is the only solution possible, this is often followed by … the pirates’ release (!). On several occasions, groups of pirates, intercepted by military vessels patrolling the area, have been initially stopped and then released and put back on rubber dinghies and left at sea. As early as 2008, in Resolution 1851 (2008), the UN Security Council highlighted with alarm that “the lack of capacity, domestic legislation, and clarity about how to dispose of pirates after their capture, has hindered more robust international action against the pirates off the coast of Somalia and, in some cases, led to pirates being released without facing justice.” In July 2010, the UN secretary general warned that 700 people involved in piracy had been released in the period from January to June; this is a startling figure considering that, as mentioned above, the total number of ‘sea devils’ is around 1,500-2,000 individuals.12 In January 2011, the legal advisor of the Secretary General for issues linked to piracy off the Somali coast stated that over 90% of pirates stopped by patrol fleets had been released without being brought to trial.13 In January 2012 the Secretary General once again expressed his concern that only in 4 out of 286 cases of piracy reported in 2011 had the military coalition forces decided that there was sufficient evidence to arrest the pirates.14 The reasons that – according to governments – are supposed to justify the release of pirates after capture are determined by the difficulties linked to bringing legal proceedings against pirates; these difficulties stem from a series of causes. The first and most important of these factors is that few state legal systems include antipiracy legislation.15 The lack of specific regulations makes it difficult to repress acts of piracy, as emerges quite clearly from the UN Convention on the law of the sea, according 11 12 13 14 15

SC Res. 1816 (2008), para. 11. SC Res. 394 (2010), para. 20. SC Res. 30 (2011), para. 14. SC Res. 50 (2012). Similar provisions exist in Italian law. Piracy is regulated in the navigation law of 1942, in the part devoted to crimes committed against shipping, aircraft or cargo (Arts. 1135 et seq.).

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Francesca Graziani to which the state that has captured a pirate vessel must apply its own legislation (Art. 105). However, this justification, often used by states as an excuse for their lack of action, appears to have been abused since nothing would prevent states from acting to amend their own legislation to incorporate the requirements of the Convention of Montego Bay.16 Other practical obstacles would frustrate legal proceedings. One such obstacle is the problem of gathering evidence, considering that when they are surrounded by air or sea forces, pirates immediately get rid of their weapons and stolen goods. Finding witnesses of acts of piracy at trials is also an extremely complex matter. There are also problems concerning the temporary detention of suspects since custody on board military vessels poses serious issues regarding the respect for state legislation, which requires clearly defined (and brief) times between the capture of the suspect and confirmation of arrest by the judiciary. However, the reasons stated above only partly explain the failure of the international community to take effective action. Upon closer examination, the inaction of states should be attributed to the lack of political will to bring pirates to justice, as emerges from the public declarations issued by states declining any responsibility for bringing proceedings against pirates stopped by their own military units. These declarations reflect the reluctance of governments to tackle the issue. They seem like a confused collection of national traits and fears linked to the high costs of justice, which would merely add to the costs of keeping fleets of vessels off the Somali coast. A further issue is the social alarm caused by the potential presence of dangerous criminals who, once their sentences are served, would remain on state territory.17 The solution to the problems of tackling Somali piracy appears not to lie in the sea – since warships have proved their capacity for energetic and vigorous intervention – but on dry land; more precisely, it lies in the capitals of the states that do not seem to know how to follow up military intervention with concrete measures to ensure pirates are brought to justice. The release of pirates after capture has incalculably negative effects: it nullifies attempts to repress a phenomenon judged by all states to be extremely serious; it debases and humiliates policing and patrolling operations conducted by many (too many) naval units; in particular, it highlights the inadequate deterrent effect of military action, which stops individual pirate raids and thwarts them but reinforces the criminal intent of pirates. Since they know they can count on a rapid release, the pirates can return to base at night and set off again the following morning in search of new victims in the sea.

16 However, since 2008 many States have modified their legal systems to accommodate the provisions of the UN Convention on the law of the sea, partly to implement the requests of the UN Security Council which, with the recent Resolution 2020 (2011), has appealed to States to issue punitive regulations not only against those responsible for acts of piracy but also against instigators and accomplices (SC Res. 2020 (2011)). See also SC Res. 177 (2012). 17 SC Res. 394 (2010), para. 22.

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7  Piracy and Somalia 7.4 The Solutions Identified by the United Nations to Make Up for the Lack of Jurisdiction over Pirates The failure of states operating in the Gulf of Aden and the Indian Ocean to bring the Somali jinn to justice has forced the United Nations to search for alternative solutions to problems of jurisdiction and enforcement of the law. The leading international organization bases its position on two obvious facts: people suspected of piracy and stopped by the multinational naval force are mainly freed; the impunity of pirates seriously damages the work of the international community and fuels new acts of violence and sea raids.18 In any case, the United Nations have put up very little resistance to the refusal of states that capture pirates to bring them to justice. On the one hand, there are bland and general calls for states to do more and take more effective action, while on the other, knowing that these appeals will fall on deaf ears, new solutions are sought; they tend to be extremely disparate, original and imaginative. All of them are acceptable as long as they do not involve the responsibility of the states, which, by participating in patrolling operations at sea, are already doing their bit. Although the issue of the effective repression of piracy has become a top priority for the UN since 2008, it is still proving difficult to find a really viable solution. To sum up the current situation, it is possible to subdivide the commitment of the United Nations into four temporal phases. During the first phase, the UN Security Council, with Resolution 1851 (2008), invited governments and regional organizations involved in operations off the Somali coast to reach agreements with states in the region prepared to take individuals suspected of piracy and sea raids into custody and bring them to trial. Under the auspices of this Resolution, Somaliland and Puntland earnestly tried to bring pirates to justice, partly to gain the international legitimacy they currently lack. At the same time, the states and European Union have formalized agreements with Kenya, Seychelles and Mauritius about the conditions and procedures for transferring people suspected of acts of piracy and armed robbery who are held on board military vessels. The identified solution soon revealed its limitations. The efforts of Puntland and Somaliland did not appear sufficient and indeed raised several doubts, especially considering the state of justice in these regions, about the lack of staff and the run-down prison system. The agreements with other states in the region also pose serious problems. First, these states do not accept the unconditional transfer of suspects, demanding valid and convincing evidence for bringing legal proceedings. As a consequence, despite existing agreements, the states that capture pirates have continued, as they did in the past, to engage

18 SC Res. 394 (2010), para. 9; SC Res. 30 (2011), para. 14.

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Francesca Graziani in deplorable ‘catch and release practices’.19 Secondly, just a few months after signing the agreements, Kenya and the Seychelles deemed the volume of trials of pirate suspects in its courts unsustainable. In order to respect the commitments they had made, both states therefore demanded that the international community should provide greater financial support and that third party states (preferably Somalia) should be prepared to enforce the sentences of convicted pirates.20 Accordingly, in a second phase, the UN Security Council, through Resolution 1918 (2010), decided to explore the issue in more depth and asked the Secretary General to present a report on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia.21 The Secretary General’s report, published on 26 July 2010, identified seven different solutions, each of which was discussed in terms of the relative advantages and the factors that might prove to be obstacles. It is impossible to examine the report in great detail. Suffice it to say that the possibilities being considered by the Secretary General can be conveniently grouped into internal or regional options and international options; this depends on whether they are based on state jurisdiction (reinforcement of the current capacities of Puntland, Somaliland and other states in the region, the creation of a Somali court in a state in the region, with or without UN participation) or on instruments provided by international law regarding the repression of international individual crimes (jurisdiction devolved to the International Criminal Court; the creation of an international court as a result of a regional agreement or by the UN Security Council; the establishment of a mixed criminal court).22 The Secretary General’s report was followed on 25 January 2011 – and this marked the start of the third phase – by the Report of the Special Adviser to the Secretary General on Legal Issues related to piracy off the coast of Somalia.23 While remaining convinced of the need to pursue the current path – i.e. continuing to provide technical and financial assistance to Puntland, Somaliland and other states in the region – the Special Adviser highlighted omissions and obstacles, caused mainly by the precarious security conditions in Somalia and the evident problems of enforcing justice. A twofold strategy 19 SC Res. 30 (2011), para. 59: Case Study (EUNAVFOR press release, 17 November 2010): On 17 November 2010, a helicopter crew of the European Union naval force Atalanta suspected that an attack was being prepared in the Gulf of Aden. An Atalanta force battleship approached the suspect vessel and, in compliance with its rules of engagement, prepared to board it and take control. Aware that they had been spotted, the crew of the vessel threw some ladders overboard. The Atalanta team seized the weapons on the suspect vessel (two missile launchers, an automatic weapon and ammunition). In view of the experience gained by the Command of Atalanta through previous requests for transfer to the judicial authorities of Kenya and the Seychelles, it was decided that the evidence (in particular, the photos) was not sufficient to initiate a prosecution. The seven crew members of the suspect vessel were freed. 20 Council of the European Union, Secretariat, Options Paper: Sustainable Solutions Regarding the Prosecution and Detention of Piracy Suspects, Brussels, 15 September 2010, Doc. 1365/10, p. 16. 21 SC Res. 1918 (2010). 22 SC Res. 394 (2010), paras. 55 et seq. 23 SC Res. 30 (2011).

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7  Piracy and Somalia was therefore proposed, which was to be carried out within a maximum period of eight months: on the one hand, a specialist Somali court was to be set up, consisting of Somali judges, appointed by the transitional government on the basis of a list prepared with the support of the UN Political Office for Somalia (UNPOS), and temporarily situated outside Somali territory, in Arusha (Tanzania), at the International Criminal Court for Rwanda. On the other hand, a proposal was also made to set up two special courts in Puntland and in Somaliland; the judges would have specific training with the assistance of the international community and benefit from the support of extraterritorial court, in particular a public prosecutor’s office, since the experience of judges of piracy has highlighted the need to reinforce skills regarding preliminary inquiries. The proposal met with the complete approval of the states involved and the European Union. However, it was fiercely criticized by Somalia, which formally declared itself to be capable of running trials autonomously but actually betrayed the fear that international aid, already considered to be insufficient, might be diverted for other initiatives.24 The fourth and final phase began in January 2012 when the United Nations, after four years of analyses and studies, reports and documents, returned … to the starting point. Given the opposition of the Somali authorities to establishing an extraterritorial court and the shelving of further proposals to solve problems of jurisdiction and law enforcement, the new Report of the UN Secretary General focused exclusively on boosting the capacities of Puntland, Somaliland and other states in the region and on identifying other states prepared to take an active part in tackling piracy. The report defines in detail what has been done so far and, above all, what remains to be done in terms of assistance and economic aid to ensure that Somalia and other states can take effective action to bring pirates to justice and imprison them.25 Much ado about nothing, it would seem. 7.5 A Critique of the Proposed Solutions The path is therefore clearly marked out. About twenty states have currently brought legal proceedings against Somali pirates. Since 2006 the number of charges has risen to 1,063, while there have been about 550 sentences. The biggest share of these has been borne by Puntland and Somaliland, followed by Kenya and Seychelles.26 However, the path is all uphill, and the final destination is still a long way off. With regard to the states in the region, the situation of Kenya and Seychelles must be analysed separately from that of Mauritius and Tanzania. Although their legal framework for countering piracy conforms to the UN Convention on the law of the sea, the first 24 SC Res. 360 (2011), para. 52. 25 SC Res. 50 (2012), para. 3. 26 Cf. SC Res. 50 (2012), para 10.

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Francesca Graziani two states continue to demand more substantial economic support from the international community and refuse to hold the pirates in their prisons.27 Therefore, in April 2011, the Seychelles signed a memorandum of understanding with Puntland and Somaliland about the transfer of pirates convicted by the legal authorities of the Seychelles. The situation regarding Mauritius and Tanzania is rather different. On 14 July 2011, Mauritius signed an agreement with the European Union on the conditions and procedures for transferring individuals suspected of piracy captured by the military detachments of Operation Atalanta. However, the agreement, which binds Mauritius to prosecuting acts of piracy committed in waters off the coast of Mauritius, Madagascar and the islands of Comoros, Seychelles and Réunion, would not cover the main zones of operation of the pirates. Until now, no transfer has been made by the naval forces of Operation Atalanta because the guidelines on the transfer of suspects currently being drawn up by Mauritius, in collaboration with the UN Office on Drugs and Crime (UNODC), have not yet been adopted. The situation is similar for Tanzania, which has still not signed special agreements with international organizations and states involved in the Gulf of Aden and the Indian Ocean.28 With regard to Somalia, the theoretical advantage of giving the country formal responsibility for dealing with the problems of pirate raids off its coast is offset by numerous problems that are too serious to be ignored and too deeply rooted to find rapid solutions. Since 2008, UN intervention in Somalia has been considerable. The UNODC and the United Nations Development Programme (UNDP) have long been involved in aid projects designed to improve the existing legal framework, train the judiciary and police and build or modernize prisons. However, the energy and money devoted to these initiatives have been quite insufficient. The scenario conveyed by the UN reports published in January 2011 and January 2012 is not at all reassuring. Somalia’s state of the legal framework for tackling the issue is disheartening. Piracy is not considered a crime in the Somali Criminal Code or Criminal Procedure Code, which have remained unaltered since 1960. The law on piracy passed by the ‘parliament’ of Puntland on 18 December 2010, under the auspices of UNODC, has been modified and does not conform to the UN Convention on the law of the sea. In Somaliland the anti-piracy law, which has yet to be passed, is supposed to modify the restricted jurisdiction of the courts. Until now, the courts have only been invested with powers to tackle infringements linked to the autonomous region, in other words when the act of piracy is committed in the territorial waters or by citizens of Somaliland.29 Instead of concentrating on the signing of agreements on the transfer of individuals suspected of piracy, states and international organizations have placed priority on persuading Puntland and Somaliland to respect international standards regarding the right to a fair trial, the right to defence by a lawyer and the treatment of prisoners. 27 SC Res. 30 (2011), n. 37. 28 SC Res. 50 (2012), paras. 39 et seq., 96 et seq., 111 et seq. 29 SC Res. 30 (2011), para. 106.

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7  Piracy and Somalia The Somali police and the judiciary generally lack adequate expertise: the lack of training of investigative magistrates and judges (only a tiny minority have a law degree), the lack of human resources, the inadequacy of logistical facilities and the insufficient attention shown to the right to defence by a lawyer are just some of the problems that beset the justice system in Somalia.30 As well as these problems, there are also serious security issues: since 2009, seven judges and magistrates have been assassinated in Puntland. Despite UN intervention, prisons and other penal institutions suffer from overcrowding, there are frequent acts of violence, no medical care and there is a lack of drinking water; the most basic human rights are therefore denied.31 In conclusion, all plans to give Somalia responsibility for tackling piracy remain distinctly theoretical. Much will depend on the support of the international community, and such assistance will involve sizable long-term economic support. According to the most optimistic forecasts, not less than a further sum of 20 million dollars needs to be allocated for the next three years; although the UN has warned that the funds available are currently insufficient, the states operating in the Gulf of Aden do not seem to be fully aware of the costs required to facilitate the current policy.32 As if the general scenario were not already gloomy enough, there is the further issue of endemic corruption, which has afflicted the Somali authorities for years.33 This is more than just a suspicion, judging from the 200-page report drawn up by Matt Bryden, the Canadian coordinator of the Monitoring Group on Somalia, and presented to the President of the UN Security Council last July.34 According to the report, which provides a detailed analysis of the misappropriation of funds from donor states by some of the most senior state officials, over 70% of public revenue in Somalia is used for private ends. For every 10 dollars received by the TFG, 7 never ended up in state coffers. In 2011 the offices of the President, the Prime Minister and the President of Parliament spent more than 12.6 million dollars, almost 23% of total state expenditure. Pirates themselves benefit from such widespread illegality. A typical example is the case of Mohamed Abdi Hassan, nicknamed ‘Afweyne’ (big mouth), one of the most important leaders of Somali piracy, arrested last April in Malaysia with a diplomatic passport issued by state officials close to the Somali president. The case of pirate Aweyne is not an isolated one. The authorities of Puntland are accused of benefitting at all levels from the proceeds of pirate raids. Judicial inquiries in the region are directed mainly at less important individuals involved in acts of piracy; otherwise, leaders enjoy protection and safe conduct, as is shown by the ridiculous sentence to five years in prison of the dangerous pirate Abshir Boyah and the presidential pardon granted in 2010 to Abdirashid Muse Mohamed, sentenced in 2008 to twenty years’ 30 31 32 33 34

SC Res. 30 (2011), para. 116. SC Res. 30 (2011), para. 116; SC Res. 50 (2012), paras. 12 et seq., 14 et seq., 25 et seq. SC Res. 30 (2011), paras. 136 ss.; SC Res. 50 (2012). SC Res. 30 (2011), para. 23; SC Res. 50 (2012), para. 15. Cf. .

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Francesca Graziani imprisonment. Official documents therefore offer an extremely complex picture of Somali piracy where, in a tangled web of connivance between cops and robbers, it is not always easy to distinguish between the aggressor and the victim or between legality and illegality. 7.6 The Slow Pace of International Cooperation in Tackling Somali Piracy and the Pirates’ Capacity to React Since 1990s, Somali piracy has changed in nature several times. There has been a transition from opportunistic piracy involving small groups that undertook hit and run raids to a highly specialized criminal activity organized like an international joint venture. The sea marauders operate according to a military-style hierarchy, with personnel rigidly subdivided into operational divisions, each of which has different functions (planning attacks, carrying out raids, negotiating ransoms). Using sophisticated equipment (a vast array of weapons, satellite phones, GPS equipment), they operate in shifts, patrolling the seas. Professional mediators, experienced money launderers, sophisticated brokers, financiers above suspicion have fuelled the new piracy industry, which can count on countless channels of support in Europe (especially in London, where skilled mediators have become authorities on kidnappings), in Kenya (where the money from ransoms is laundered) and in Arab States (in particular at Dubai, the financial centre and ultimate destination of the proceeds of piracy). According to UN reports, 50% of the money paid to free vessels and crew ends up in the hands of international mediators, while the remaining sum is divided between the pirates (30%), the bases on the mainland (10%) and local communities (10%). The industrialization of piracy means that the power of Somali jinn should not be underestimated, particularly now that warships are proving effective. Experts warn that pirates are proving to be extremely flexible and ready to adapt to the preventive measures used by military units, avoiding them with great dexterity. While Somali coastal waters are carefully patrolled and the shipping corridor established at about 200 km from the Somali coast ensures considerable safety for commercial shipping routes in this part of the sea, pirates evade surveillance systems, sailing up to 600-700 miles from Somalia, southwards (towards Kenya, Tanzania and the Seychelles) to the heart of the Indian Ocean, using motherships stationed on the high seas from which small motor boats set off in search of objectives to prey upon.35 According to some analysts, piracy is the second most important driving force behind the Somali economy after transfers sent by emigrants. Considering that the per capita income of Somalia is estimated to be about 600 dollars and that a pirate can earn sums ranging between 35,000 to 75,000 dollars a year, depending on their role in the hijacking, pirates clearly have no problems recruiting new members. 35 SC Res. 662 (2011).

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7  Piracy and Somalia Piracy is now perceived as much more than a way to earn a living. In some cases, it is even regarded as a respectable activity, at least in the eyes of the local population, since pirates proclaim themselves protectors of their seas, plundered by foreign merchant ships and considered by unscrupulous multinationals as a ‘dustbin’ for dumping industrial waste or toxic refuse. The declarations made by pirates appear rather specious. However, it should not be forgotten that illegal fishing carried out indiscriminately by foreign fleets has seriously damaged the already fragile Somali fishing industry and that dumping of toxic materials and nuclear waste by organized crime, as well as provoking serious illnesses, generates an enormous sum of money that finances the Somali warlords. This situation is largely ignored by states or, at worst, persists due to their connivance.36 Since air–sea operations have become more effective and merchant shipping has resorted to private guards, there has been a dangerous escalation in the violence of pirate attacks: the jinn do not hesitate to use the captured crews as human shields to discourage naval forces from intervening. In 2011 alone, 35 hostages died, 8 of whom were killed by pirates during the attack and 19 were victims of crossfire during the attempt to free them. To compensate for the lower success rates of attacks, pirates keep hostages for considerably longer periods in order to obtain higher ransom payments: periods of captivity have risen from an average period of 45 days in 2009 to a current average of 150 days. It is also worth noting that pirates are behaving more violently towards crews held as hostages. According to unconfirmed estimates, about 300 crew members of different nationalities are currently being held hostage by Somali pirates. It is impossible to make precise calculations of the numbers of hostages since the figures generally fail to take account of crews of small fishing vessels left to their fate by shipowners who fail to report pirate attacks. According to official estimates, the total sum of ransom payments made to pirates in 2010 came to about 79.8 million dollars. In 2011, the declared figure was 147 million dollars. In 2012, it has been estimated that Somali pirates received ‘only’ 2.65 million dollars. These statistics probably represent only a fraction of the true figures, considering that at least 10 million dollars in ransom money was paid to free the Italian ship Enrico Ievoli in April 2011. Officially, shipowners and governments deny direct negotiations with pirates and the payment of ransoms to free crews, forbidden by the laws of many states and discouraged by the resolutions of the UN Security Council to avoid encouraging the phenomenon. The reality of the situation is quite different and it is well known to all, including the buccaneers, that ransoms are the only return that Somali pirates have never failed to accept.

36 SC Res. 661 (2011).

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Francesca Graziani 7.7 Conclusions: Somali Piracy, a Problem Whose Effects Are Felt on the Sea but Whose Origins Are on the Land In 2011, according to the American foundation One Earth Future, the cost of Somali ­piracy for the world economy was about 7 billion dollars, of which 80% was borne by the shipping industry and the remaining 20% by the states involved in countering piracy.37 Besides the huge difference between the costs of defence and the costs of attack, the figure emphasizes the fact that international cooperation cannot produce long-term results as long as government intervention remains focused on air–sea patrols of shipping routes. The naval operations are necessary although the instruments for restricting the phenomenon in the sea are insufficient and, above all, are becoming increasingly less sustainable in the future from both a political and an economic perspective. In the words of Honoré de Balzac Power is not revealed by striking hard or often but by striking true.38 Yet states and international organizations have always been aware of the fact that Somali piracy is a phenomenon that manifests itself in the sea but has its origins on land; in other words, piracy is merely a symptom of the political chaos in Somalia, the clearest sign of the domestic situation of a nation that lacks a government. It is therefore necessary to tackle the problem by beginning from land rather than the sea – both inside and outside Somalia. It is necessary to begin in Somalia because the country, which lacks any proper central authority, has epitomized the failures of the international community since 1991. Somalia was completely forgotten after the American defeat in the battle of Mogadishu in October 1993 and the hurried retreat of UN troops in March 1995, with a humanitarian crisis that claimed almost 1.5 million lives, and led to 800,000 refugees and 1.5 homeless. The spotlight would only return to the country after seventeen years of silence when the attacks of the ‘sea devils’ ended up threatening world shipping, both commercial and noncommercial, and therefore affected economic–financial and political–military interests of global proportions. Naval forces from all over the world have patrolled these troubled waters since 2008. On dry land, transitional federal institutions continue to be dangerously divided, and the country is fragmented into a swarm of local authorities, whether they actually wield power or are merely presumed to do so. Due to the chronic instability of the country, events that elsewhere would merely be a cause for concern become calamities of biblical proportions and chronicles of deaths foretold. Somalia was hit by yet another famine in 2011, which had been widely predicted. However, it still caused a staggering humanitarian emergency.39 While the United Nations reeled off figures that revealed the full scale 37 See . 38 H. de Balzac, Méditations de philosophie éclectique, 1829, Part I, Aphorisms XLIII. 39 SC Res. 549 (2011), paras. 21 et seq.

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7  Piracy and Somalia of the catastrophe – by the end of July, there were tens of millions of deaths, more than 2.5 million people in need of primary health care, almost 1.5 million homeless, 900,000 of whom were welcomed in Kenya, Ethiopia, Djibouti and Yemen – experts reported the failure in the running of human aid programmes. The programmes have been raided by the sea pirates, halted on land by the militias of Al-Shabaab, and literally stolen from by the Somali district officials who were supposed to ensure distribution. The widespread corruption of local authorities and also that of UN operators, already exposed in 2010, have come in for criticism in a lengthy report by the Security Council for serious breaches of responsibility.40 In February 2012, in an attempt to reduce the widespread phenomenon of moral corruption, the London Conference on Somalia decided to establish a Joint Financial Management Board. However, the board’s mandate does not extend to monitoring the billion-dollar expenses that international organizations handle each year in Somalia, and which, according to available data, represent the main source of corruption of the local system. In the last year, the troops of AMISOM (African Union Mission in Somalia) dealt severe blows to the Al-Shabaab militias, who were driven out of Mogadishu. However, the situation remains precarious and the state of insecurity continues in a country in which an arduous process of political re-organization has been in progress since September 2011. The pretentious roadmap for Somalia has led to theoretical commitments, which are difficult to put into effect. It has been criticized by many different parties for trying to put form before the substance of a process towards stabilization, which remains tortuous and contradictory. Nevertheless, on 1 August 2012, the national constituent assembly approved the provisional constitution. On 20 August 2012, the long transitional phase that governed (!) the country for eight years finally came to an end, and the elections for the installation of new institutions are awaited. There is no certainty as to when this will happen, or what type of political guarantees, assurances of safety or financial backing there will be. Many hope this is the start of a new phase, but the history of Somalia has taught even the most ardent optimist to err on the side of caution. It is outside Somalia – and, more precisely, in the capitals of the states that patrol the Gulf of Aden and the Indian Ocean with their naval forces – that the solution of the problem of pirate attacks needs to be found. This implies that those states that have not yet made piracy a criminal offence in their legislation should do so because the legal vacuum of national regulatory frameworks neutralizes every effort made at the international level. Above all, this means that states should bring the Somali jinn to trial. The legal and practical problems linked to bringing legal proceedings against the pirates should not be underestimated. However, these difficulties will not vanish into thin air when the sea marauders 40 In 2009 the WFP allocated 485 million dollars to Somalia; of this sum, 200 million dollars is alleged to have been run by three local shady operators without announcing a call for tender. Unscrupulous wheelerdealers are thought to have given 30% of the sum to WFP operators, another 10% to local transporters, while 5%-10% of the money is believed to have ended up in the pockets of fundamentalist groups.

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Francesca Graziani are tackled by Somalia and other states in the region; these are countries whose problems combine with the absence of a legislative framework and massive structural flaws, creating an extremely intricate series of issues that have yet to find a solution. Continuing to delegate jurisdiction over pirates and the enforcement of convictions to Puntland, Somaliland and other states in the region, merely to prevent the effects of acts of piracy on domestic legal systems, is a sign not just of incurable optimism but also of serious shortsightedness. Indeed, it is worth asking what the state of Somali piracy would be if, since 2008, instead of hiding behind absurd catch and release practices, the states that caught pirates had brought them to trial, irrespective of the nationality of the vessels and the crews that had been attacked. This would have strengthened the concept of universal jurisdiction which, when considered from the perspective of customary international law and the Convention of Montego Bay, has been reduced to mere flatus vocis (hot air). It is worth asking what the current state of the Somali jinn would be if the empty rhetoric about Africans taking responsibility for African problems had been preceded, or at least accompanied, by real pressure on the states whose merchant ships had been attacked. As is well known, this is because most ships are conveniently registered under the flags of Panama, Liberia, Cyprus, the Marshall islands, Malta and Singapore; these states are notorious for their systematically lax approach to monitoring international regulations, beginning from the application of laws on the safety of ships’ crews, and have, until now, never brought legal proceedings against Somali pirates. Political reasons (unconvincing) and national self-centredness (there are no other words to describe it) have led states to seek solutions elsewhere to problems that they would have been able to tackle if they had followed up intervention in the high seas with practical legal actions right from 2008. Something is beginning to stir from the initial state of inactivity. This is demonstrated by the Security Council resolutions.41 It is confirmed by the data of the UN Secretary General which refer, among others, to Belgium, the United Arab Emirates, France, Japan, Germany, India, Madagascar, Malaysia, Oman, the Low Countries, Spain, the United States and Yemen, while in March 2012 criminal proceedings were brought in Italy against the pirates who, in October 2011, attacked the vessel Montecristo.42 However, the fact that we are still a long way from the desired goal clearly emerges from the worried words of the Legal Adviser to the Secretary General, who made the following observation in January 2011: To date, prosecution by flag states of ships that have fallen victim to piracy has been marginal; it must become much more frequent. Global sharing of the burden should be better distributed. In the short term, it is crucial for states, including the flag states of attacked ships, to bring pirates to justice.43

41 SC Res. 1918 (2010). 42 SC Res. 50 (2012), para. 10. 43 SC Res. 30 (2011), paras. 74, 75.

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7  Piracy and Somalia It is not easy to say whether states have finally become aware of the fact that sharing the joint effort to suppress piracy would lower political costs and the economic burden of countering Somali piracy. Besides the long-windedness generally associated with these sorts of initiatives, the recent conferences on Somalia, held in London (23 February 2012) and in Istanbul (31 May-1 June 2012), have simply identified more effective means of containing sea piracy. At most, they have focused on the need to tackle the Al-Shabaab movement relentlessly. Once again, the problem of piracy has been addressed by beginning from the effect and ignoring the cause. The scenario is already fairly alarming. Just as the data showing a decline in Somali piracy in 2012 has had a miraculous calming effect on the international community, the IMO has reported a significant increase in acts of piracy in the Gulf of Guinea. Already in October 2011, the Gulf of Guinea was defined by the United Nations and Lloyds Association, the largest shipping insurance broker in the world, as a high-risk area as dangerous as any war zone.44 To add to the threats in East Africa, there are now serious problems in West Africa. History seems to be repeating itself.

44 SC Res. 45 (2012); SC Res. 2039 (2012).

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8

The Prevention and Repression of Piracy in Somalia in the Policy of the European Union

Lina Panella* 8.1 The Somali Crisis and Piracy Today The situation in Somalia has come to the attention of the international community because of the repeated cases of piracy that have taken place in the Gulf of Aden. While in the first six months of 2012 there was a strong reduction in the number of raids, the data released by the Piracy Reporting Centre (PRC) of the International Maritime Bureau (IMB) has shown over 500 piracy attacks in the two years 2009-2010.1 Through such criminal activity, pirates would have collected from 18 to 30 million dollars in robberies and plunders. The modus operandi of modern pirates is no different from what it was in the past: armed motor boats, supported by a main vessel, capture the ships, even at a notable

* 1



Full Professor of International Law, University of Messina. Before 1992, shipmasters and ship operators had nowhere to turn to when their ships were attacked, robbed or hijacked either in port or out at sea. Local law enforcement either turned a deaf ear or chose to ignore that there was a serious problem in their waters. The IMB, aware of the escalating level of piracy, wanted to provide a free service to the seafarer and established the 24-hour IMB PRC in Kuala Lumpur, Malaysia. The main objective of the PRC is to be the first point of contact for the shipmaster to report any incident of piracy, armed robbery or even stowaways. In January 2009, IMO adopted the Djibouti Code of Conduct, which is a central instrument in the development of regional capacity to combat piracy. Its main objective is cooperation to the fullest possible extent and in a manner consistent with international law, in the repression of piracy and in armed robbery against ships, with a view to sharing and reporting relevant information through a system of national focal points and piracy information exchange centres in Kenya, the republic of Tanzania and Yemen; interdicting ships suspected of engaging in acts of piracy or armed robbery against ships; ensuring that persons committing or attempting to commit acts of piracy or armed robbery against ships are apprehended and prosecuted and facilitating the proper care treatment and repatriation of persons subject to acts of piracy or armed robbery against ships, in particular those who have been subjected to violence. Alongside the code has also been established the Djibouti Code Trust Fund (Multidonor trust fund – Japan initiated), as well as the International Trust Fund Supporting Initiatives of Contact Group on Piracy off the Coast of Somalia (CGPCS).

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Lina Panella distance from the coast, obliging them to steer towards the nearest countries while waiting for the ransom.2 In the sixteenth century, the tiny island of Tortuga used to shelter the innumerable armed bands of pirates infesting the waters of the Caribbean Sea, plundering the galleons that travelled to and between the Old and New continent. Centuries later, in the era of technology and of globalization, the geographical coordinates have changed, but the raiding methods and the danger remain unchanged. Nowadays it is the chaotic geopolitical situation of the Horn of Africa that shelters pirates infesting the waters of the Arabian Sea, a zone of strategic importance for European commerce because it is situated on one of the principal maritime routes for the exchange of goods between Europe, the Middle East and Asia, besides being a route taken by 20,000 - 30,000 convoys a year.3 It is both complex and, paradoxically, too simple to explain the reasons for the diffusion of the phenomenon of piracy off the coasts of Somalia. According to pirates, the reasons are to be sought in the necessity of challenging the industrial fishing carried out in these waters by boats, especially from Asia. In fact, the original nucleus of the Somali pirates was made up of fishermen, whose only means of sustenance was fishing and who wanted to prevent foreign ships from “usurping their sovereignty.”4 In point of fact, it is the political situation of Somalia that constitutes a menace for peace and international security. Piracy is only the tip of the iceberg of such a situation.5 2

3

4

5

In the report to the Security Council on the situation of piracy and armed robbery in territorial waters and high seas off the coast of Somalia pursuant to the SC Res. 1846, 2 December 2008, the Secretary General noted that the expanding maritime presence by Member States is playing a critical role in stabilizing the situation in the Gulf of Aden. No significant observable change occurred during the reporting period in the modus operandi of pirate attacks, except that the locus of such activities shifted from the Gulf of Aden to the western Indian Ocean and, more recently, closer to Seychelles largely as a result of successful naval action. There is also some information to suggest that smaller ships, such as fishing vessels and pleasure craft, are increasingly being targeted. The report of the Secretary General provides an assessment of the piracy situation and examines the political, legal and operational activities that have been undertaken by Member States, regional organizations and the UN and its partners in the fight against piracy and armed robbery at the sea off the coast of Somalia. It concludes with observations on ways in which the long-term security of international navigation off the coast of Somalia, including seaborne humanitarian deliveries to Somalia and the UN supply line to the AMISOM can be secured. Code doc. S/2009/590 on 13 November 2009. Ahmedou Ould Abdallah, Special Representative of the Secretary General for Somalia and Head of the United Nations Political Office for Somalia (UNPOS), in a report released to the Security Council on 18 November 2009, said: “piracy was, first of all, very successful business, with outlets in the region and beyond. It was very important to see it as a criminal activity.” According to W. Pfaff, ‘La verità che sta dietro la pirateria somala’, Analysis & Reportages, 2009, available at , “Dietro la drammatica emergenza della pirateria somala, tornata alla ribalta in questi ultimi tempi, si nasconde la realtà di un Paese distrutto dalla guerra e dalle ingerenze straniere, e di una popolazione costiera impoverita dai saccheggi della pesca industriale internazionale.” For the South African delegate, “it was necessary to be clear that it was the situation in Somalia that constituted a threat to international peace and security, and not the piracy in itself. Sea Piracy was a symptom.” Cf. UN Security Council Press Release, SC/9344, 2 June 2008. The Representative of the Secretary General for Somalia and Head of the UNPOS, in a speech delivered on 16 November 2009, stressed that piracy was a symptom of wider problems that had been bedevilling Somalia for nearly two decades and thus required a concerted and coordinated effort at the international, regional, national and local levels. The only sustainable solution for the Head of UNPOS would be effective governance, the establishment of the rule of law and security institutions and the creation of alternative livelihoods in Somalia for stable and inclusive economic growth.

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8  The Prevention and Repression of Piracy in Somalia Without presuming to analyse deeply the various aspects of internal politics of S­ omalia as it has developed during the years, it is a common opinion that this state now represents a paradigmatic case of a state that has ‘failed’,6 that is, having a government that is no longer capable of exercising its power and thus lacking the fundamental requirement for effectiveness.7 It is well known that, after the failure of the successive missions of the UN and after the disastrous attempt to resume the normal functioning of political institutions, small steps forward have been taken, with the Peace Conference of Nairobi in 2004 organized at the initiative of IGAD (Inter-Governmental Authority on Development), an organization with political–commercial aims. Among the principal results of the conference, the appointment of a Transitory ­Federal Parliament and of a Transitory Federal Government (TFG) must be emphasized. These weak institutions, however, have not been able to govern the whole country, remaining confined to Baidoa, seeing that they could not operate in conditions of sufficient security in the capital, Mogadishu, because of the presence of the Union of the Islamic Courts.8 In fact, neither parliament nor government was elected democratically by the population, but is the result of negotiations, which lasted two years, among the various factions at war. Although the war in Somalia was apparently over by 2006, in reality no a­ ttempt has been made to try to follow, at the end of the hostilities, a process of reconstruction, both of peace and of government. After decades of warfare, Somalia has been undergoing a peace and national reconciliation process, with the country’s TFG institutions implementing the so-called roadmap for the end of transition, drawn up on 1 September 2012. The roadmap spelled out priority measures to be carried out before the current transitional governing arrangements end on 20 August, including the establishment of a parliament and the drafting of a provisional constitution. These political developments have come about amid gains of security front, with Somalia’s army, supported by the UN-backed African Union Mission in Somalia (AMISOM), having made progress in its efforts to defeat the militant Al Shabaab group, which previously held sway over greater swathes of the country. 6

7 8

See Res. 897, 4 February 1994, where the Security Council makes reference to a “lack of State authority of Somalia.” See also Ahmed v. Austria, ECHR (1996), Vol. VI, No. 26, para. 46. On the notion of state failure with particular reference to Somalia, there is a large bibliography. By way of example, see A.A. Yusuf, ‘Government Collapse and State Community’, Italian Yearbook of International Law, Vol. 13, 2003, p. 11; R. Koskenmäki, ‘Legal Implications Resulting From State Failure in the Light of the Case of Somalia’, Nordic Journal of International Law, Vol. 73, 2004, pp. 1 et seq.; A. Tancredi, ‘Di pirati e stati “falliti”: il Consiglio di Sicurezza autorizza il ricorso alla forza nelle acque territoriali della Somalia’, Rivista di Diritto Internazionale, Vol. 91, 2008, pp. 937 et seq. According to D. Thürer, ‘The Failed State and International Law’, International Review of the Red Cross, Vol. 81, 1999, p. 731, a State failure “is one which, though retaining legal capacity, has for all practical purposes lost the ability to exercise it.” The Islamic Courts Union (ICU) was a group of Sharia Courts, which united themselves to form a rival administration to the TFG of Somalia. Until the end of 2006, they controlled most of southern Somalia and the vast majority of its population, including most major cities such as Jowhar, Kismayo and the capital Mogadishu. Only the northern regions (Puntland, Somaliland) and the farthest interior regions of the south were outside their control. Today, the ICU is a part of a wider coalition for Somali liberation that on 19 August 2008 concluded in Djibouti with the TFG a peace and reconciliation treaty.

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Lina Panella Somalia’s eight-year political transition ended successfully with the establishment of a new leaner Federal Parliament on 20 August 2012 and the selection of a Speaker of the Parliament, Mohamed Osman Jawari. The 275 Members of Parliament were selected by 135 traditional elders and vetted by a Technical Selection Committee. They then selected the President, Hassan Sheikh Mohamud, in a process that was at times characterized by reports of intimidation and undue interference to influence its outcome, but which nevertheless turned out to be the most transparent and representative election in Somalia’s twenty-year crisis, and the first to be held inside the country.9 Before the election of the Parliament and of the President, the same TFG, as well as other states’ victims of pirates’ criminal actions, is exerting more and more pressure on the Security Council to issue an authorization to intensify activities in contrasting piracy.10 It is in this context that the resolutions adopted by the Security Council to authorize the regional states and organizations interested in operating even in Somalian territorial waters11 to fight against piracy and favour the capture of people responsible for the acts of armed robbery are to be set. 9

Upon assuming office, President Mohamud outlined the priorities of the administration in his six-pillar policy framework, including stabilization, peace-building and reconciliation, economic recovery, collaborative international relations, the delivery of services to the people and unity and integrity of the country. For a review of the Somali situation, see the Report of the Secretary General on Somalia of 31 January 2013, S/2013/69. 10 The TFG consent that other states could intervene in own territorial waters already in a first letter to the President of Security Council, on 27 February 2008, as it is possible to read in the preamble of Res. 1816: “taking further note of the letter from Permanent Representative of the Somali Republic to the UN to the President of the Security Council dated 27 February 2008, conveying the consent of the TFG to the Security Council for urgent assistance in securing the territorial and international waters off the coast of Somalia for the safe conduct of shipping and navigation.” The Somali request was repeated in a following letter on 14 May 2008. In SC Res. 1816, there is reference, also, to letters with the same content to the Secretary General from the Secretary General of the IMO dated 5 July 2007 and 18 September 2007 regarding piracy problems off the coast of Somalia and the IMO Assembly Res. A.1002(25), which strongly urged governments to increase their efforts to prevent and repress acts of piracy and armed robbery against vessels, irrespective of where such acts occur. The same request to the UN was taken from many states, such as Spain, after the capture of Spanish vessel Palaya de Bakio, on the high seas off the Somali coasts on 20 April 2008. See UN doc. S/2008/271. Similar letters to the President of General Assembly and Security Council were sent from the representatives of Canada, Denmark, Greece, Japan, Holland and Norway. 11 The intervention of third states in the territorial waters of Somalia, only for six months, is provided in SC Res. 1816, 2 June 2008, para. 7: “[The Security Council] decides that for a period of six months from the date of this resolution, states cooperating with the TFG in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advance notification has been provided by the TFG to Secretary General, may: a) enter into the territorial waters for the purpose of repressive acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high sea with respect to piracy under relevant international law.” On 31 October 2009, the following states and regional organizations transmitted advance notifications of their cooperation with TFG in the fight against piracy at sea off the coast of Somalia: Canada, Denmark, France, the Netherlands, the United Kingdom of Great Britain and Northern Ireland, Australia, Islamic Republic of Iran, Republic of Korea, Spain, the United States, India and Russian Federation, China, Turkey, EU and NATO. See S/2009/590, p. 4: With SC Res. 1846, 2 December 2008, the intervention of third states in the territorial waters of Somalia was renewed for one year. Noting the several requests from TFG for international assistance to counter piracy off its coast, including the letters of 2 and 6 November 2009 from the Permanent Representative of Somalia to the UN expressing the appreciation of the TFG to the Security Council for its assistance, expressing the TFG’s willingness

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8  The Prevention and Repression of Piracy in Somalia This chapter does not take into consideration the resolutions adopted by the Security Council in this regard,12 but before analysing in detail the implementation of such resolutions on the part of the European Union (EU), it is necessary to give more precise information on two points. The first point concerns the definition and the discipline of piracy in regard to international law. The second point has to do, specifically, with the relations between the UN and the EU regarding the actions to be taken in order to maintain international peace and security. 8.2 Piracy in Customary International Law and in the Conventions of the Law of the Sea In international law, piracy is included in so-called delicta iuris gentium13: crimes that, for their seriousness, violate the fundamental interests of the international community and that therefore justify a universal interest in their repression.14 A characteristic of such crimes is the carrying out of illicit acts on the high seas on ships or on goods and persons



to consider working with other states and regional organizations to combat piracy and armed robbery at sea off the coast of Somalia, on 30 November 2009, the Security Council adopted unanimously, under Chapter VII of UN Charter, Res. 1897 and decided that for a period of twelve months from the date of this resolution to renew the authorizations for states and regional organizations fighting piracy off the Somali coast to enter the strife-torn country’s territorial waters (para. 7). The resolution affirms that “the authorizations renewed apply only with respect to the situation in Somalia and shall not affect the rights or obligations or responsibilities of Member States under international law, including any rights or obligations under the UNCLOS, with respect to any other situation, and underscores, in particular, that this resolution shall not be considered as establishing customary international law.” On 21 November 2012, the Security Council adopted Res. 2077, which extends the authorization to intervene in territorial waters and in the territory under the Somali jurisdiction until the end of 2013. 12 About the role of international cooperation in Somalia and the resolutions of the UN, see F. Graziani, Piracy and Somalia: The Few Advantages and the Many Drawbacks of International Cooperation, in this book. 13 Piracy iuris gentium is quite different from piracy for analogy, which includes, according to N. Ronzitti, ‘­Pirateria (dir. vigente)’, in Enciclopedia del Diritto, Vol. XXXIII, Giuffré, Milan, 1983, p. 913, “tutti gli atti, qualificati come pirateria dall’ordinamento statale, ma non sanzionati come pirateria dalla norma di diritto internazionale consuetudinario.” For the historical evolution of piracy, see C.M. Moschetti, ‘Pirateria (storia)’, in Enciclopedia del Diritto, Vol. XXXIII, Giuffré, Milan, 1983, p. 873. 14 About the notion of international crime, there is a wide bibliography impossible to mention. By way of example, see V. Starace, ‘La responsabilité résultant de la violation des obligations à l’égard de la Communauté internationale’, Recueil des Cours de l’Académie de droit international de la Haye, Vol. 153, 1976, p. 263; K. Marek, ‘Criminalizing State Responsibility’, Revue Belge de Droit International, Vol. 14, 1978-1979-2, pp. 460-485; M. Spinedi, Contribution à l’étude de la distinction entre crimes et délits internationaux, CEDAM, Padua, 1984; G. Carella, La responsabilità internazionale per crimini internazionali, Jovene, Naples, 1985; A. Cassese, ‘Remarks on the Present Legal Regulation of Crimes of States’, in Il diritto internazionale al tempo della sua codificazione. Studi in onore di Roberto Ago, Vol. III, Giuffré, Milan, 1987, pp. 46 et seq.; C. Dominicé, ‘The International Responsibility of States for Breach of Multilateral Obligations’, European Journal of International Law, 1999, pp. 353 et seq.; G. Gaja, ‘Les obligation et les droits erga omnes en droit international’, Annuaire del’Institut de droit international, 2006, Vol. 71-II, pp. 81 et seq.; P. Picone, Comunità internazionale ed obblighi ‘erga omnes’, Jovene, Naples, 2006.

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Lina Panella on board these ships. For the repression and prevention of such acts each state can exercise the right of inspection and capture, thus creating an exception to the principle of freedom of the sea.15 The rules of international law applicable to piracy are, nowadays, codified in Articles 100107 of the United Nations Convention on the Law of the Sea (UNCLOS) of 10 December 1982.16 These articles point out in detail the constitutive elements of this criminal act and discipline the powers of the state regarding its repression.17 From the definition of piracy in Article 101 of the 1982 Convention, one can deduce that for a criminal act to be considered such it must possess certain characteristics.18 Above all, particular notice is given to the prerequisite of the aims, the so-called private ends, that must form the motivation of the criminal act itself; besides, the number of subjects involved must be, at least two, in that it has to be an attack against a ship (or against persons or goods transported by this ship) coming from another ship (or from its crew or its passengers), and the criminal act must take place on the high seas or in places that are not subject to the jurisdiction of any state. It is only under such conditions that “every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board” (Art. 105). The state that has captured the pirate ship is also authorized to decide the restrictive measures to inflict on pirates and also to decide the other actions to adopt regarding the ship and its cargo. In the same way, in the case of the confiscation of a ship suspected of piracy on the basis of proof subsequently shown to be false, the state that has ordered the confiscation will be held responsible for any damage or loss caused (Art 106). 15 The reference in the test is to the maritime piracy, but the same remarks are possible for piracy in the air. About piracy, see also P.W. Birnie, ‘Piracy. Past, Present and Future’, Marine Policy, Vol. 11, 1987, pp. 163 et seq.; M. Halberstam, ‘Terrorism on the High Sea: The Achille Lauro Piracy and the IMO Convention on Maritime Safety’, American Journal of International Law, Vol. 82, 1988, p. 269; A.P. Rubin, The Law of Piracy, Transnation Publisher, Irvington on Hudson, 1998, p. 129; N.D. Korolyova, International Legal Issues of Cooperation Between States in Suppressing Piracy and Terrorism: Some Aspects, in T.A. Clingan & A.L. Klodkin (eds), Moscow Symposium on the Law of the Sea: proceedings of a workshop co-sponsored by the Law of the Sea Institute, the Soviet Maritime Law Association, The Soviet Peace Fund, November 28-December 2, 1988, Moscow, Union of Soviet Socialist Republics, Law of the Sea Institute, William S. Richardson School of Law, University of Hawaii, Honolulu, 1991 , pp. 243-276; J.L. Jesus, ‘Protection of Foreign Ships Against Piracy and Terrorism at Sea: Legal Aspects’, International Journal of Marine and Coastal, Vol. 18, 2003, pp. 363 et seq.; M.F. Torresi, ‘La pirateria marittima del XXI secolo’, Il Diritto Marittimo, Vol. 109, 2007, pp. 598 et seq.; F. Graziani, Il contrasto alla pirateria marittima nel diritto internazionale, Editoriale Scientifica, Naples, 2009. 16 The UNCLOS entered into force on 16 November 1994. 17 The articles of UNCLOS about piracy are not only similar to Art. 14 of the Geneva Convention on the High Seas of 29 April 1958 (UNTS Vol. 450, p. 82), but their content is affected by the project of Convention on this subject made by Harvard Law School in 1932, see ‘Draft Convention on Piracy, with Comment’, ­American Journal of International Law Supplement, Vol. 26, 1932, p. 743. 18 See Art. 101 UNCLOS – Definition of piracy: “Piracy consists of any of the following acts: a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship aircraft, and directed: (i) on the high sea, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”

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8  The Prevention and Repression of Piracy in Somalia Finally, as regards the identification of the ships that can intervene in the repression of the crime of piracy, Article 107 specifies that “a seizure on account of piracy may be carried out only by warships or military aircraft,” or other types of ships “which are clearly marked and identifiable as being on government service and authorized to that effect.” The law provided for by the Convention of Montego Bay cannot be considered complete, especially in the procedural aspects of detention and in the proceedings with regard to alleged pirates. From this point of view, the gaps in the law previously underlined have been, at least partially, filled by the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Security (SUA Convention) adopted in Rome on 10 March 1988 (SUA Convention).19 This last Convention has a wider applicability than the Convention of Montego Bay, and piracy is among the matters provided for,20 even if it is not explicitly 19 The Convention has been necessary to face the juridical problems caused by the acts of terrorism against the maritime navigation that are not specified object of a treaty and for which the case Achille Lauro is an example. Without speaking about the problem if piracy can be qualified as terrorism, it is clear that in both cases there is serious damage to the security of maritime navigation. To consider piracy as an act of terrorism, see F. Munari, ‘La “nuova” pirateria ed il diritto internazionale: Spunti per una riflessione’, Rivista di Diritto Internazionale, Vol. 92, 2009, p. 344. The SUA Convention entered into force on 1 March 1992. The SUA Convention was revised in 2005 by a Protocol whose Art. 15 provides that: “1 The Convention and this Protocol shall, as between the Parties to this Protocol, be read and interpreted together as one single instrument. 2 Articles 1 to 16 of the Convention, as revised by this Protocol, together with articles 17 to 24 of this Protocol and the Annex thereto, shall constitute and be called the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 2005 (2005 SUA Convention).” The revised SUA Convention entered into force on 28 July 2010. The text of the consolidated version of the SUA Convention as amended by the 2005 Protocol was reproduced in A.V. Lowe & S.A.G. Talmon, The Legal Order of the Oceans. Basic Documents on the Law of the Sea, Hart Publishing, Oxford, 2009, pp. 837-852. About the revised Convention, see Y. Tanaka, The International Law of the Sea, Cambridge University Press, Cambridge, 2012, p. 361. On the SUA Convention of 1988, see F. Francioni, ‘Maritime Terrorism and International Law: The Rome Convention of 1988’, German Yearbook of International Law, Vol. 31, 1989, pp. 263-268; T. Treves, ‘The Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation’, in N. Ronzitti (Ed.), Maritime Terrorism and International Law, Kluwer, Dordrecht, 1990, pp. 69 et seq.; M.C. Ciciriello, ‘Pirateria (dir. Int.)’, in Enciclopedia Giuridica, Vol. XXIII, Istituto della enciclopedia italiana Treccani, Rome, 1990, p. 1. 20 Among the unlawful acts covered by the SUA Convention in Art. 3 are the seizure of ships by force; acts of violence against persons on board ships and placing of devices on board a ship that are likely to destroy or damage the ship. The 2005 Protocol to the SUA Convention adds a new Art. 3bis, which states that a person commits an offence within the meaning of the Convention if that person unlawfully and intentionally – when the purpose of the act, by its nature or context, is to intimidate a population or to compel a government or an international organization to do or to abstain from any act – uses against or on a ship or discharging from a ship any explosive, radioactive material or BCN (biological, chemical, nuclear) weapon in a manner that causes or is likely to cause death or serious injury or damage; discharges, from a ship, oil, liquefied natural gas or other hazardous or noxious substance, in such quantity or concentration that causes or is likely to cause death or serious injury or damage; uses a ship in a manner that causes death or serious injury or damage; transports on board a ship any explosive or radioactive material, knowing that is intended to be used to cause, or in a threat to cause, death or serious injury or damage for the purpose of intimidating a population or compelling a government or an international organization to do or to abstain from doing any act; transports on board a ship any BCN weapon, knowing it to be a BCN weapon; any source material, special fissionable material or equipment or material, especially designed or prepared for the processing, use or production of special fissionable material, knowing that it is intended to be used in a nuclear explosive activity or in any other nuclear activity not under safeguards pursuant to an IAEA comprehensive safeguards agreement and transports on board a ship any equipment, materials or software or related technology that significantly contributes to the design, manufacture or delivery of a BCN weapon, with the intention that it will be used for such purpose.

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Lina Panella indicated. It is to this treaty that one must refer, especially in the stage following the capture of the alleged pirates.21 In this sense the Rome Convention expects all contracting states to exercise their own jurisdiction regarding criminals when they are on their territory, setting aside any other connection between the state in question and the criminal act (Art. 6, para. 4), accepting, moreover, in Article 10, the general principle of law aut dedere aut iudicare. However, according to Article 9 of the same Convention, the capture must respect international laws regarding the use of police force on board foreign ships, and there is no instruction not to observe the principle that jurisdiction in territorial waters can be exercised only by the coastal state.22 An analysis of the stipulated laws regulating the phenomenon of piracy underlines the difficulties and, at the same time, the gaps in the law the repression of such phenomenon presents. In the case of foreign ships, the extension of the coercive powers of a state limited to zones not subject to any jurisdiction does not mean that these ships lose their nationality,23 but that the interest in instituting legal procedures against criminal acts of a particularly serious nature does not concern the coastal state only. We are therefore in the presence of a case regarding the functional activity of a government facing its limits both from a spatial point of view (zones not subject to any jurisdiction) as well as in satisfying a determinate interest. 8.3 The Juridical Framework of the Action of the United Nations and the European Union in Somalia The intervention of the UN (and of the EU) in Somalia, to contrast piracy, does not ­respect the spatial limits previously mentioned and, with the consent of the state involved recognizing its ‘inability’ to make an effective intervention, extend the police force of the international organizations and of the states to “zones under the exclusive competence of the State”, in order to satisfy the general interest of the international community (the repression of the criminal phenomenon). 21 The States fighting piracy off the coast of Somalia are invited, especially after the capture of the persons responsible, to implement the SUA Convention especially by SC Res. 1846, 2 December 2008, para. 15 and by SC Res. 1851, 16 December 2008, para. 3. 22 In Res. 1897, 30 November 2009, the Security Council noting with concern that the continuing limited capacity and domestic legislation to facilitate the custody and prosecution of suspected pirates after their capture has hindered more robust international action against pirates off the coast of Somalia, and in some cases has led to pirates being released without facing justice, regardless of whether there is sufficient evidence to support prosecution, reiterates that the SUA Convention provides for parties to create criminal offences, establish jurisdiction and accept delivery of persons responsible for or suspected of seizing or exercising control over a ship by force or threat thereof or any other form of intimidation and stressed for states to criminalize piracy under their domestic law and to favourably consider the prosecution, in appropriate cases, of suspected pirates, consistent with applicable international law. 23 In that case, there is not, as same authors declare, the ‘snazionalizzazione’ of the ship because the maintenance or the loss of nationality belongs to the domestic jurisdiction of the state that has granted it. See Ciciriello 1990, p. 2.

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8  The Prevention and Repression of Piracy in Somalia The initiatives of the UN in Somalia go back in time,24 but the starting point for giving a juridical setting to the intervention of the EU in this country lies in resolution 1816(2008) adopted by the Security Council on 2 June 2008,25 to satisfy a request for help put forward by the Provisional Somali Government.26 The first problem is to clarify why it is possible to extend the principles of the Charter of the UN to the EU which, in as far as it is alien to the system of the organization, is bound neither to the laws of its statute nor to the acts adopted by its organs. The solution to this question is easy: the relations with the EU, as with all the other regional organizations, as far as ‘coercive operations’ are concerned, fall under the pursuance of Article 53, paragraph 1, of the Charter of San Francisco, which, specifically, disciplines the relationships between the Security Council and regional organizations (and agreements) in matters of preservation of international peace and security.27 Such an arrangement takes into account two cases, which are distinct in their formulation, but often coincide in practice. In both cases, however, the Security Council assumes a pre-eminent role with regard to regional organizations that can take part in the maintenance of international peace and security only in a subordinate way. In fact, the first part of Article 53, paragraph 1, foresees that the Security Council can utilize the regional (agreements and) organizations for coercive actions, but always “under its authority.” The initiative to use regional organizations (and agreements) is adopted autonomously and with full discretion by the Security Council on the basis of the characteristics and possible contributions of single organizations. Keeping 24 For an examination of relations between Somalia and the UN, see M.C. Pontecorvo, ‘Somalia e Nazioni Unite’, in P. Picone (Ed.), Interventi delle Nazioni Unite e Diritto Internazionale, CEDAM, Padua, 1995, pp. 201 et seq. 25 See D. Guilfoyle, ‘Piracy Off Somalia: UN Security Council Resolution 1816 and IMO Regional CounterPiracy Efforts’, International and Comparative Law Quarterly, Vol. 57, 2008, p. 690; Tancredi 2008, p. 937, M.C. Noto, ‘La repressione della pirateria in Somalia: le misure coercitive del Consiglio di Sicurezza e la competenza giurisdizionale degli Stati’, La Comunità Internazionale, Vol. 64, 2009, p. 439. 26 To underline the request and the consent of the Provisional Somali Government is conditio sine qua non to legitimate the intervention of the UN and the regional organizations in zones under the exclusive jurisdiction of Somalia. 27 According to Art. 53.1 of the UN Charter: “The Security Council shall, where appropriate, utilize such regional arrangement or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in para. 2 of this article, provided for pursuant to article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.” About relations between UN and regional organizations see U. Villani, ‘Il ruolo delle organizzazioni regionali per il mantenimento della pace nel sistema dell’ONU’, La Comunità internazionale, Vol. 53, 1998, p. 428; Ibid., ‘Les rapports entre l’ONU et les organizations régionales dans le domaine du mantien de la paix’, Recueil des Cours de l’Académie de droit international de la Haye, Vol. 290, 2001, p. 255; Ibid., ‘The Security Council’s Authorization of Enforcement Action by Regional Organization’, Max Planck Yearbook of United Nations Law, Vol. 6, 2002, pp. 535 et seq. With particular reference to relations between the EU and the UN, see J.P. Cot, ‘La Communauté européenne, l’Union européenne et l’Organizations des Nations Unies’, in B. Boutros-Ghali Amicorun Discipulorumque liber, Bruylant, Bruxelles, 1998, pp. 327 et seq.

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Lina Panella that in mind, according to Article 25 of the Charter of San Francisco, only “the members of the United Nations agree to accept and carry out the decision of the Security Council in accordance with the present Charter”, one must rule out that such an organ can adopt binding decisions as regards regional organizations. The means that the Security Council can adopt to set up such a collaboration, according to Article 51, paragraph 1, therefore, can be of different entities, such as agreements, political accords, consultations, forms of operative collaboration. The second part of Article 53, paragraph 1 in establishing that “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council” provides the opposite case in which it is the regional organization that takes the initiative to carry out a coercive action, the legitimacy of which, however, remains subordinate to the authorization of the Security Council. The role of the Council, in such a case, is important in that its authorization is necessary to exclude the illegality of an action, otherwise forbidden.28 As already mentioned, in practice, the border line between the two cases is often very weak: anyhow, it is a question of forceful actions against a state or against part of an internal conflict and that are allowed only on condition that the Security Council has, preventively, adopted a resolution that expresses its consent to the involvement in the regional organization. Once the juridical framework between the Security Council and the EU is defined, it is necessary to identify on the basis of which norms of its constitutive act the EU can participate in a coercive action authorized by the UN. 8.4 The Council Joint Action 2008/851/CFSP and Its Developments As to the relations between the EU and the Security Council, it is well known that, originally, these regarded those measures adopted exclusively for the maintenance of peace and international security, which did not imply the use of force, seeing that the community had neither the instruments nor the competence in this sense.29 These relations have changed with the provision of a European Common Foreign and Security Policy (CFSP) and with the institution of the Petersberg missions.30 In general, the European CFSP, on the 28 According to Art. 53 of the Charter of the UN, the authorization of the Security Council should be given before the coercive action by a regional organization takes place, but recently it has been legalized also the case of an ex post authorization, as in the Kosovo case. 29 A. Lang, ‘Le risoluzioni del Consiglio di Sicurezza dell’ONU e l’Unione Europea’, Giuffré, Milan, 2002; U. Villani, ‘La politica europea in materia di sicurezza e di difesa ed i suoi rapporti con le Nazioni Unite’, La Comunità internazionale, Vol. 59, 2004, p. 63. 30 About the evolution of CFSP, see L.N. Gonzáles Alonso, ‘La politica europea de seguridad y defensa después de Niza’, Revista Derecho Comunitario Europeo, 2001, No. 9, p. 211; J. Horworth, ‘European Defence and the Changing Politics of the EU: Hanging Together or Hanging Separately’, Journal of Common Market Studies, Vol. 39, 2001, p. 765.

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8  The Prevention and Repression of Piracy in Somalia one hand, takes the side of multilateralism and of the cooperation among states that had been the cornerstone of the UN; but, on the other hand, it corresponds to current ongoing policy towards the ‘decentralization’ of its activity. The European treaties, on the other hand, recall the provisions of the San Francisco Charter: Title V of the EU Treaty regarding CFSP opens with Article 11 that recalls twice the principles of the UN Charter as the fundamental basis in European policies for the maintenance of international peace and security. The close relation between the EU and the UN in this domain is also strengthened by the reform Treaty signed in Lisbon on 13 December 2007 and that entered into force on 1 December 2009. In fact, Article 21 of this Treaty, which opens Title V dealing with the provisions regarding CFSP, asks for, as a requisite for the action of the Union on the international scene, the respect of the principles of the Charter of the UN and of international law.31 The repeated reference to the statute of the UN leads one to affirm that the Union’s system seems to recognize, as a primary norm, the duty to comply with international law and with the Charter, as well as with the universality and indivisibility of human rights, of fundamental freedoms and of the respect for human dignity, putting itself in a subordinate position as regards the universal organization. This subordinate role of the EU can also be found in all the most important political documents concerning CFSP in which, in recognizing the primary responsibility of the Security Council in the maintenance of international peace and security, the EU shows its willingness to conform to and collaborate with such organ in order to reach a common aim.32 Furthermore, in practice, the relations between regional organizations (therefore also the EU) and the UN do not end with the case put forward in Article 53 UN analysed previously. Since the 1990s, several frameworks of collaboration between the Security Council and regional organizations have been established, leading them to collaborate in the maintenance of peace, while the Security Council maintains the control over the operations. The UN and the regional organizations can create an operative support, a common deployment or joint operations.33 While the operative support consists in the aid given by a regional organization to the forces of the UN, in the common deployment it is the regional organization that deals with the operation, since the United Nations’ forces, usually of small dimensions, control the respect of the norms established by the Security Council.

31 Art. 21.1 of the EU Treaty: “The Union’s action on international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect of human dignity, the principles of equality and solidarity and respect for the principles of the United Nations Charter and international law […] (The Union) shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.” 32 Villani 2004, p. 75. 33 For an examination of several cases, see Villani 2004, p. 89.

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Lina Panella The joint operations, otherwise, involve a split of responsibility among all parties involved that operate together to achieve a common interest within the resolutions of the Security Council. An example of a joint operation is the Atalanta mission, the first military operation under the guidance of the EU in support of resolutions 1814 (2008), 1816 (2008) and 1838 (2008) of the Security Council with the aim of contributing to “the protection of vessels of the WFP delivering food aid to displaced persons in Somalia” as well as “to the protection of vulnerable vessels cruising off the Somali coast, and the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast, in accordance with the mandate laid down in UNSC resolution 1816 (2008).” The Atalanta mission was set up by the Joint Action 2008/749/CFSP of the Council of 10 November 2008,34 which, after having recalled the already quoted resolutions of the Security Council and the previous Joint Action 2008/749/CFSP, adopted by the Council on 19 September 2008 regarding the military coordination of the EU in support of resolution 1816 (2008) of the Security Council (UE NAVCO),35 expressly establishes the mandate of the mission. According to the joint action, the Atalanta mission also establishes to “keep watch over areas off the Somali coast, including Somalia’s territorial waters, in which there are dangers to maritime activities, in particular to maritime traffic” (Art. 2 lett. c), and in particular “take the necessary measures, including the use of force, to deter, prevent and intervene in order to bring to an end acts of piracy and armed robbery which may be committed in the areas where it is present” (Art. 2 lett. d). The political control and the strategic leadership of the EU military operation was entrusted to the Political and Security Committee (PSC), which acts under the responsibility of the Council which, assisted by the Secretary General/High Representative (SG/HR), retains all the powers of decision regarding the aims and the conclusion of the military operation (Art. 6). The SG/HR will always act as a point of contact with the UN, with its interested specialized institutions, with the Somali authorities and the nearby states, as well as with the African Union (Art. 9). In order to involve as many states as possible to arrive at the attainment of a common interest, according to the joint action, third states can be invited to participate in the 34 The Joint Action is published in OJ 2008 L 301/33. The first military naval operation in the history of the defence policy of the EU started on 2 December 2008, replacing coordination cells established by France and Spain. In the operation of Atalanta, the following Member States participate: Germany, France, Greece, the Netherlands, Spain and Great Britain, which has appointed the EU Operation Commander. From March 2009, Italy also took part in the operation. Operation Atalanta operates in a zone comprising the south of the Red Sea, the Gulf of Aden and part of the Indian Ocean, including Seychelles and, more recently, areas remote from the East African coastline. On 15 June, the EU General Affairs External Relations Council extended the operation’s mandate for an additional twelve months to December 2010. The EU will formally renew the mandate of Operation Atalanta in November 2009, on the understanding that the authorization contained in the SC Res. 1851 (2008) will be extended. During this period, Operation Atalanta continually demonstrated its ability to act affectively against piracy, providing 47 escort missions and allowing for the safe arrival of all WFP and UN-related shipments. 35 See OJEU 2008 L 252/39.

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8  The Prevention and Repression of Piracy in Somalia operation.36 The detailed conditions for the participation of such states are the result of agreements settled according to the procedure of Article 24 of the EU Treaty, that is, negotiated by the presidency and settled by the Council with a qualified majority according to paragraph 3 of the same article.37 One of the crucial points of the collaboration UN/EU, which the operation Atalanta to fight piracy has put in place, seems to be that regarding the competence of the jurisdiction that has to judge the captured pirates, thus eliminating one of the principal gaps in the conventional regulation in the field, as pointed out above. In this regard, attention is drawn to Article 12, dealing with joint actions, according to which, seeing that Somalia has accepted the jurisdiction of other Member States and of third states even in areas under its jurisdiction and in accordance with Article 105 of the Convention of Montego Bay according to which, in high sea, every state can confiscate a pirate ship, can arrest the people on board and can confiscate their goods, those who have committed piracy acts or armed robbery, and were stopped and arrested after trial in Somali territorial seas or in high sea, are to be transferred to (1) the competent authorities of a Member State or of a third state that had participated in the operation carried out by that state whose flag the ship that made the capture was flying or (2) a Member State or to any other third state that desires to exercise these powers with regard to such persons or goods if such a state cannot, or does not intend to exercise its jurisdiction. It is to be pointed out, though, that according to co. 2 of Article 12, no one can be transferred to a third state if the conditions of the transfer have not been set out “in a manner consistent with relevant international law, notably international law on human rights, in order to guarantee in particular that no one shall be subjected to the death penalty, to torture or to any cruel, inhuman or degrading treatment.” Acts of piracy and armed robbery on and off the Somali coast continue to threaten shipping in the area, and especially the delivery of food aid to the Somali population by the World Food Programme (WFP), and to generate financial flows against which further efforts need to be undertaken. To face this situation, on 14 November 2011, the Council of the EU adopted the Strategic Framework for the Horn of Africa with the aim of developing a comprehensive approach towards the problems emanating from the Horn of Africa. The fight against piracy is part of this effort. 36 According to Art. 10 of Council Joint Action, “Without prejudice to the decision-making of the EU or to the single institutional framework, and in accordance with the relevant guidelines of the European Council, third States may be invited to participate in the operation. The Council hereby authorises the PSC to invite third states to after contributions and to take the relevant decisions on acceptance of the proposed contributions, upon the recommendation of the EU Operation Commander and the EUMC.” 37 The SG/HR, who shall assist the Presidency, may negotiate such agreements on behalf of the Presidency. Where the EU and third states have concluded an agreement establishing a framework for the latter’s participation in the EU crisis management operations, the provisions of such an agreement shall apply in the context of this operation.

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Lina Panella The subsequent legislative acts of the EU38 until the last Council Decision/174/CFSP of 23 March 2012 amending Joint Action 2008/851/CFSP39 on a EU military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast have gradually extended the time limits of the intervention of foreign military ships in Somali territorial waters and the area of operations, but they have restated the contents of Joint Action 2008/251. The Council decision extends the EU military operation Atalanta until 12 December 2014, and the area of operation includes Somali internal waters and Somali land territory. About the transfer of persons arrested and detained with a view to their prosecution, Article 12 is confirmed, although written in a new paragraph, namely paragraph 2, which establishes that persons suspected of intending, as referred to in Articles 101 and 193 of the UNCLOS, to commit, committing or having committed acts of piracy or armed robbery who are arrested and detained with a view to their prosecution, by Atalanta in the territorial waters of the other states in the region in agreement with these states, may be transferred to the competent authorities of the state concerned or, “with the consent of the state concerned,” to the competent authorities of another state. 8.5 The Agreement between the European Union and Kenya as Model of International Cooperation to Combat Piracy Article 12 of the Joint Action 2008/851 permits the transfer of persons having committed, or suspected of having committed, acts of piracy or armed robbery in Somali territorial waters or on the high seas, arrested and detained with a view to their prosecution to the competent authorities of the flag Member State or the third state participating in the operation of the vessel that took them captive or, if the state cannot, or does not wish to, exercise its jurisdiction, to a Member State or any state that wishes to exercise its jurisdiction over the aforementioned persons and property. Article 12(2) of the Joint Action 2008/851 established clearly that no persons may be transferred to a third state unless the conditions for the transfer have been agreed with the third state in a manner consistent with relevant international law, notably international law on human rights, in order to guarantee, in particular, that no one shall be subjected to the death penalty, to torture or to any cruel, inhuman or degrading treatment. We think that the action of the EU to implement the rule of Article 12 has not been correct and that it can raise several doubts about the true guarantee of the rights of persons involved in piracy acts.

38 On 8 December 2009; on 30 July 2020 and 7 December 2010 respectively, the Council adopted Decision 2009/907/CFSP (OJ 2009 L 322/27), Decision 2010/37/CFSP (OJ 2010 L 210/33), and Decision 2010/766/ CFSP (OJ 2010 L 327/49), amending Joint action 2008/851. 39 See OJ 2012 L 89/69.

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8  The Prevention and Repression of Piracy in Somalia In fact with the Council Decision 2009/293/CFSP on 26 February 2009,40 the exchange of letters between the EU and the Government of Kenya regarding the conditions of transfer of persons suspected of having committed acts of piracy and arrested by the Atalanta naval forces was approved. According to such an agreement, Kenya, on the request of the Atalanta mission, can accept the transfer of persons suspected of acts of piracy arrested by the ships that take part in this mission, as well as the transfer of the confiscated goods. These persons, at the end of the investigation and of the trial, will be subject “to the competent authorities of this Country.”41 The agreement between the EU and Kenya is worth some observations, first of all for the form employed. As is well known, in international law, there is absolute freedom of form as regards the drawing up of treaties, and, in this case in particular, in order to speed up the time for its coming into force the parties concerned, that is Kenya and the EU, have drawn up a treaty of temporary enforcement. It is, in fact, expressly established that such a treaty will be enforced temporarily starting from the date of its signature and will come into force when each one of the parties will have completed the internal procedures.42 The juridical deed used for the drawing up of this treaty is the exchange of letters with identical contents.43 Such a procedure is certainly unusual for the EU, so much so that some journalists, not so perspicacious and less used to international terminology, have written that “cancels all glimpses of civilization and forecasts who knows what acts of barbarism.”44 Without going to such extremes, it is clear, though, that the procedure followed creates quite a number of doubts regarding its legitimacy, especially if one keeps in mind that the same Joint Action 2008/851, the juridical basis of the Atalanta mission, expressly establishes that “detailed modalities for the participation by third States shall be the subject of agreements concluded in accordance with the procedure laid down in Article 24 of the Treaty. (Art. 10 joint action).”45 40 See OJ 2009 L 79/47. 41 On the Art. 2 – general principles – of provisions on the conditions of transfer of suspected pirates and seized property from EU-LED Naval force to the Republic of Kenya annex to the exchange of letters between EU and Kenya, (a) this State “will accept, upon the request of EUNAVFOR, the transfer of persons detained by EUNAVFOR in connection with piracy and associated seized property by EUNAVFOR and will submit such persons and property to its competent authorities for the purpose of investigation and prosecution. (b) EUNAVFOR will, when acting under this exchange of letters, transfer persons or property only to competent Kenyan law enforcement authorities.” 42 The procedure was satisfied on 9 March 2009. 43 It is possible to read in both letters: “The instrument will be applied provisionally from the date on which it is signed and will enter into force when each of the participants has completed its own internal procedures. This instrument will continue to have effect until six months after either participant has given the other signatory written notification or a decision to terminate the instrument. This Instrument may be varied by mutual arrangement between the signatories. Termination of this instrument will not affect any benefits or obligations arising out of the application of this instrument before such termination, including the benefits to any transferred persons as long as they are held in custody or are prosecuted by Kenya.” 44 A. Mazzeo, ‘L’UE deporta in Kenya i pirati somali’, downloadable from the website . 45 Art. 10 of the joint action, really, established detailed modalities for the participation by third states in the Atalanta mission; it is necessary to extend the rule of Art. 10(6) to third states wishing to exercise its jurisdiction over persons and properties mentioned in Art. 12.

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Lina Panella Even the contents of the treaty are not lacking in ambiguity. First of all, it is stated that the persons transferred will be treated “in a human manner and in conformity to international obligations as regards human rights including the prohibition of torture or any inhuman or degrading treatment.”46 There is therefore no further mention to the prohibition of death penalty among the general principles that govern the treaty examined here, as, instead, joint action 2008/851 on which this treaty was based had expressly asked for. It is also true that the successive point 4 of the treaty establishes that no person who has been transferred can be condemned to death, but the decision is left to the discretion of Kenya, in conformity to the laws applied, to adopt the necessary measures to make sure that the death penalty be changed to imprisonment. The concern for an effective protection of the rights of the persons accused of piracy grew because of the fact that, in the treaty, there are no elements that identify, with certainty, the competent authorities in Kenya to whom the European Naval Force (EUNAVFOR) can transfer these persons or the places of their detention.47 In this respect, one must not forget that the head of the government of the country to which the prisoners are entrusted, prisoners to whom all the guarantees of a fair trial should be granted, was elected after one of the bloodiest electoral campaigns in the history of this country. As a report of Amnesty International reminds us, the eve of the vote on 27 December 2007 and in the months following the official proclamation of the results were characterized by unprecedented episodes of violence, with almost 500 deaths, properties burnt and tens of thousands of people evacuated from the cities of Eldoret, Kericho and Kisumu. Again one must remember that on 9 July 2009, the past Secretary General of the UN, Kofi Annan, mediator in the Kenyan crisis, together with the president of the panel of important persons nominated by the African Union, provided the Attorney of the International Criminal Court (ICC) with documents regarding the post-electoral acts of violence committed in Kenya at the end of 2007 and beginning of 2008. Recently, on 6 November 2009, by request of the Attorney of the ICC, the President has assigned the exam of Kenya’s

46 P. 2 lett. c) of provisions on the conditions of transfer of suspected pirates and seized property from the EU-LED Naval force to the Republic of Kenya: “The signatories confirm that they will treat persons transferred under this Exchange of Letters, both prior to and following transfer, humanely and in accordance with international human rights obligations, including the prohibition against torture and cruel, inhumane and degrading treatment or punishment, the prohibition of arbitrary detention and in accordance with the requirement to have a fair trial.” 47 SC Res. 1897, 30 November 2009, reads as follows: “Commending the Republic of Kenya’s efforts to prosecute suspected pirates in its national courts, and noting with appreciation the assistance being provided by the United Nations Office of Drugs and Crime (UNODC) and other international organizations and donors, in coordination with the Contact Group on Piracy off the Coast of Somalia (CGPCS), to support Kenya, Somalia and other States in the region, including Seychelles and Yemen, to take steps to prosecute or incarcerate in a third state after prosecution elsewhere captured pirates consistent with applicable international human rights law.” 48 Kenya ratified the Statute of ICC on 15 March 2005.

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8  The Prevention and Repression of Piracy in Somalia situation to the Preliminary Chamber II, to obtain the authorization to inquire about the acts of violence in this country in 2007-2008.48 About the death penalty, there are many cares that can be provided to alleged pirates. In fact, in the report of the Committee against the Torture about Kenya in 2009, it is pointed out that on 1 August 2009, the Congress rejected with a large majority vote a motion to abrogate the capital penalty. It is true that it is no longer applied, but national courts go on to issue sentences of capital punishment.49 Also, it is necessary to point out that, though the penal code of Kenya prescribes life imprisonment for piracy, it is possible that, together with other counts of indictment, such as seizure and murder, committed during the attack of piracy, the alleged pirates can be awarded the death penalty.50 In the light of the preceding considerations, we do not consider the choice of Kenya as a place appointed for the judging of the alleged pirates in spite of the seriousness of their crime, which is certainly not under discussion, coherent with a modern conception of the international law of protection of human rights, which is due also to those who are suspected of crimes that disgust the civil conscience of the international community. 8.6 The Italian Legislation on Piracy The exercise of jurisdiction on ships captured both on the high seas as well as in the territorial waters of Somalia on the part of a state whose ship has carried out the capture and whose flag it flies presents itself as very confusing as regards Italy. In fact, our regulations provide that the crime of piracy be punished by imprisonment from ten to twenty years, according to Article 1135 of the navigation code.51 Such a provision has to be coordinated with what is established by the law of 24 February 2009, no. 12 – which records “converted in law, modified by law by decree on 30th December 2008 n.209, containing postponement of Italian participation in international missions (GURI n.47 of 26th February 2009),” – which at Article 5 co. 4 expressly attributes to the Court of Law in Rome the jurisdiction regarding the crimes of piracy ascertained during the Atalanta mission off the Somali shores and in Somali territorial waters.52 49 UN doc. CAT/C/KEN/CO/1 on 19 January 2009 in the website . 50 Kenya’s penal code is published on the website . 51 Pursuant to Art. 1135 of the Italian Navigation Code 1: “Il comandante o l’ufficiale di nave nazionale o straniera che commette atti di depredazione in danno di una nave nazionale o straniera o del carico ovvero a scopo di depredazione commette violenza in danno della persona imbarcata su una nave nazionale, è punito con la reclusione da 10 a 20 anni. Per gli altri componenti dell’equipaggio la pena è diminuita in misura non eccedente un terzo; per gli estranei la pena è ridotta fino alla metà.” 52 According to Art. 5.4, “i reati previsti dagli articoli 1135 e 1136 del codice della navigazione e quelli ad essi connessi ai sensi dell’art.12 del c.p.p., inclusi i reati a danno dello Stato o dei cittadini italiani che partecipano alla missione di cui all’art.3 co.14, commessi in alto mare o in acque territoriali altrui e accertati durante la medesima missione sono puniti ai sei sensi dell’art.7 c.p. e la competenza è attribuita al tribunale di Rome.”

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Lina Panella In accordance with such an order when, on 22 May 2009, the frigate Maestrale blocked an attack on a Caribbean merchant ship and arrested nine people suspected of piracy, at the end of a long interrogation in videoconference, the Public Prosecutor’s office ratified the arrest of the nine people, alleged pirates, who remained in provisional precautionary custody on the same ship Maestrale while waiting to be transferred to Italy. If the situation had remained so, no particular juridical problem would have arisen since the exercise of the Italian jurisdiction was perfectly coherent with the first case p ­ rovided for by Article 12 of common action 2008/851 and it could be put into practice without any problem in that the crime of piracy is provided for by our maritime law and the lex specialis, regarding Italian missions abroad, expressly attributes its jurisdiction to the Roman Court of Law. The situation has become complicated and the solution put forward posed many doubts since, on 12 June 2009, the law by decree no. 61 was approved and recited “urgent dispositions regarding contrast of piracy”53 converted in law no. 100 on 22 July 2009.54 On the basis of Article 1 co. 4 of this law, the Italian jurisdiction has to exercise its rights, and competence in this matter remains with the Court of Law in Rome only if the crimes provided for by Articles 1135 and 1136 of maritime law “are committed to the detriment of the State or of the citizens or of Italian goods in high sea or in the territorial waters of other States.” In other words, the exercise of Italian jurisdiction is restricted to this one case in which the interests of the Italian state are involved. In all other cases, namely when the capture is carried out by Italian ships that, however, are not damaged directly by the action of alleged pirates, law no. 100 introduces Article 6bis, according to which, for the exercise of jurisdiction, the provisions contained in international agreements are to be applied. This article, which recalls both common action 2008/851 as well as the Decision 2009/293 concerning the exchange of letters between the EU and the Government of Kenya, authorizes the transfer of the alleged pirates to this country. The following Article 6ter specifies that such provisions are applied retroactively also to proceedings pending at the date of its coming into force, and therefore also to individuals captured by the frigate Maestrale against whom proceedings had already started in Italy. The provision of Article 6 that recognizes the jurisdiction of Kenya arouses many doubts and perplexities in the author of this study, considering the situation of human rights in this country, as mentioned before. Perhaps it would not be too bold to assume that law no. 100 in the part where it redeems the jurisdiction of Kenya could be subject to constitutional illegitimacy for the breach of Article 27 of the Italian Constitution. In fact, one must not forget that the Italian Constitutional Court, as far back as 1979, in verdict no. 54, when asked to decide on the legitimacy of the royal decree of 30 June 1870 no. 57762 in the part that renders executive Articles 1, 2, and 7 of the agreement for the 53 See GURI 2009, No. 137. 54 See GURI 2009, No. 177.

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8  The Prevention and Repression of Piracy in Somalia reciprocal extradition of criminals between Italy and France, signed in Paris on 12 May 1870, declared the constitutional illegitimacy of the royal decree of 30 June 1870, no. 5726, establishing that “it is not to be doubted that the will of the constituent legislator is not only that of prohibiting capital punishment in Italy, but also not to consent that organs of the Italian State contribute towards an eventual capital punishment abroad through extradition.” If it were true that Italian law can carry out a CFSP decision without recalling the known theory of the counter limits, perhaps it would be good to remember the inspiring principles of our juridical system. In conclusion, we think that the Somali situation is an excellent leading case in international and internal law for many reasons. First of all, the ‘right to intervene’ in the territory under jurisdiction of a state with the authorization of the Security Council for more than five years, if it cannot be considered as establishing customary international law, it is not … an exceptional event either! For the EU, it is true that the intervention in Somalia to fight against and to prevent piracy certainly represents an important step forward towards a common foreign policy and attests to a closer collaboration with the UN; however, such developments must never set aside an adequate protection of human rights, mainly after the entry of the Lisbon Treaty into force, which forecasts its accession to the European Convention on Human Rights (Art. 6.2). Finally, the Italian position: to accept the rules of the UN and of the EU is a (juridical) obligation; however, we should not forget our constitutional principles.

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9

The Issue of Jurisdiction in Piracy Cases

Giuseppe Stuppia* 9.1 Preliminary Remarks Over the course of time a customary rule developed in relation to piracy – by many considered to be a crimen iuris gentium – concerning the principle of universal criminal jurisdiction, a rule that was then codified in Article 105 of the United Nations Convention on the Law of the Sea (UNCLOS).1 It is within this general framework that one must examine piracy, especially the instances of it that have occurred along the coast of Somalia, which have raised numerous issues regarding which criminal courts the alleged pirates should be tried in. In fact, the possibility of exercising universal jurisdiction, linked to piracy being recognized as a threat to the interests of the entire international community, should have allowed for a more efficient and widespread fight against the phenomenon, but that has not actually occurred. The states not directly affected by piracy have always been (and will be) reluctant to employ enormous resources and means to combat it or indeed are contrary to trying pirates who have no link with their state. In some cases in which they are indirectly affected, they even prefer to hand over the offenders to third states for criminal prosecution there. The reasons for this behaviour are many,2 but what is of importance for the purposes of the present analysis is to understand whether in practice, especially more recently, states have effectively exercised universal criminal jurisdiction in relation to the crime of piracy. A recent study3 shows that between 1998 and 2009, universal jurisdiction was exercised just 1.47% of the time. In reality, this figure is conditioned by the Somali situation, and if

*

PhD Candidate in International and European Union Law, Sapienza University of Rome.

See 1982 UNCLOS, 1833 UNTS 396. It should be noted that Art. 105 UNCLOS mirrors the content of Art. 19 of the 1958 Geneva Convention on the High Seas. 2 E.g., many western countries fear that once on their territory the pirates could escape or fraudulently abuse procedures that would allow them to permanently remain in the country. In the majority of cases, it is simply that combating piracy is particularly costly, and one can thus understand why states whose economic or commercial interests are not threatened by piracy do not wish to engage in that fight directly. 3 E. Kontorovich & S. Art, ‘An Empirical Examination of Universal Jurisdiction for Piracy’, The American Journal of International Law, Vol. 104, No. 3, 2010, pp. 436-453. However, it is worth making some points in relation to how the data in the above-mentioned statistical study was gathered and used. The study was 1

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Giuseppe Stuppia one examines the period prior to 2008, the percentage drops to 0.53%, representing just four cases in which that jurisdiction was exercised.4 The application of the principle of universal criminal jurisdiction has raised a series of legal issues worthy of in-depth analysis. Accordingly, after an introduction to the relevant international rules in the matter, state practice in relation to the subject will be examined, in particular the Somali question and recent developments in connection therewith. Also important in this regard is an analysis of the role that the UN and the International Maritime Organization (IMO) play in combating piracy. 9.2 General International Law and the Principles Governing the Exercise of Domestic Criminal Jurisdiction In order for a state to be able to exercise its domestic criminal jurisdiction over events that to a certain extent are extraneous to its own legal system, customary law provides a number of principles whose choice is a matter for national law. International law does not mandate any order of priority of those principles5 such that states are free to choose which linking

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conducted relying mainly on the reports of the IMO and the International Maritime Bureau (IMB), which from time to time publishes data on acts of piracy that have occurred in a given period. It must be stressed that not all acts of piracy are subject to universal jurisdiction because, as mentioned before, attacks not occurring on the high seas are not covered by the international rule in question and remain a matter for the state that exercises jurisdiction in the waters where the act of piracy takes place. Moreover, many cases are not notified to the relevant authorities, and hence it is likely that the total number of acts of piracy is relatively higher than official records would suggest. Furthermore, special attention must be paid to the methods of reporting used by the various agencies because, for example, there are differences in the definition used by the IMO compared with that used by the IMB. Therefore, in order to empirically assess the extent of exercise of universal jurisdiction, it is best to take into account solely the acts of piracy falling within the definition codified in Art. 101 UNCLOS, thus excluding acts classifiable as armed robbery, attempted piracy or acts preparatory to actual piracy. See T. Treves, ‘Piracy, Law of the Sea and Use of Force: Developments Off the Coast of Somalia’, The European Journal of International Law, Vol. 20, No. 2, 2009, pp. 399-414. In this regard, it is interesting to note that China, India, Kenya and Yemen are the countries that have mainly relied on universal jurisdiction as regards piracy, unlike for other international crimes where jurisdiction is mainly exercised by western countries. In particular, for the years 1998-2009, the study identified 1,158 cases of piracy that could be subject to universal jurisdiction. In relation to those cases, only seventeen trials took place, thirteen of them (76%) in Kenya and the remaining four in Asia, including one in Yemen. Moreover, if one compares the 1998-2007 period prior to the rise of piracy in Somalia with the two-year 20082009 period, one can note that the total number of attacks in the former was 754 (with a rate of exercise of universal jurisdiction equal to 0.53%), while in the latter it was 404 (with the rate of exercise of universal jurisdiction increasing to 3.22%). M.N. Shaw, International Law, 6th edn, Cambridge University Press, Cambridge, 2008, pp. 652 et seq. See also, amongst many, P. Benvenuti, ‘Sui limiti internazionali alla giurisdizione penale’, Rivista di diritto internazionale, Vol. 57, 1974, pp. 238 et seq.; I. Caracciolo, Dal diritto penale internazionale al diritto internazionale penale. Il rafforzamento delle garanzie giurisdizionali, Editoriale Scientifica, Napoli, 2000, pp. 61 et seq.; P. Gaeta, ‘Les règles internationales sur les critères de compétence des juges nationaux’, in A. Cassese & M. Delmas-Marty (Eds.), Crimes internationaux et jurisdiction internationales, Presses Universitaires de France, Paris, 2002, pp. 191 et seq.

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9  The Issue of Jurisdiction in Piracy Cases factor they see fit, typically a link with the place that the event occurred, the alleged offender, the victim or the states’ vital interests. Indeed, exercise of jurisdiction in relation to crimes committed on one’s territory (irrespective of the nationality of the offender or the victim and save for special cases of immunity) is one of the expressions typical of national sovereignty.6 As regards the law of the sea in particular, there exists the concept of fluctuating territory applied on the basis of the customary rule codified in Article 92 UNCLOS to ships flying the flag of the state on the high seas. In fact, the principle of the flag state is a corollary to freedom of the high seas in which ‘legal order can be ensured primarily by the flag state’ as there is no ‘centralized authority’ for managing it.7 Moreover, a link between the crime and a state other than that in whose territory it was committed by virtue of the nationality of the offender or the victim or as a result of vital interests of that other state being involved can enable jurisdiction to be exercised by the state concerned instead of the state of the locus commissi delicti if the offender is in the state’s territory or through extradition under a treaty or ad hoc agreement between the two states. Nonetheless, the (few) international crimes recognized as significantly harming key principles of the entire international community on the basis of the application of the principle of universal criminal jurisdiction can be prosecuted by each state irrespective of any link with the crime or its perpetrator or victim.8 It should also be noted that this latter principle finds wider application for the crime of piracy because, as the analysis conducted below shows, it enables not only a state to try and convict the alleged pirates, but also allows third states to arrest them on the high seas, often directly on foreign ships. In reality, the application of that principle to an act of piracy may lead to conflicts of jurisdiction between the various states involved and equally entitled to exercise their own jurisdiction over the alleged pirates. For example, take the case of an attack carried out on the high seas by a Somali ship against a ship flying the French flag and thwarted, again

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Underlying which are also practical considerations in connection with procedural aspects of gathering evidence, examining witnesses, etc. R.R. Churchill & A.V. Lowe, The Law of the Sea, 3rd edn, Manchester University Press, Manchester, 1999, pp. 208-209; D. Gaeta, ‘Nazionalità della nave e dell’aeromobile’, Enciclopedia del Diritto, Vol. XXVII, 1977, pp. 764 et seq.; Y. Tanaka, The International Law of the Sea, Cambridge University Press, Cambridge, 2012, pp. 162 et seq. On this topic, see M.C. Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’, Virginia Journal of International Law, Vol. 42, Afl. 1, 2001, p. 88; A. Cassese, International Criminal Law, 2nd edn, Oxford University Press, Oxford, 2008, pp. 284-285; A. Del Vecchio, I Tribunali internazionali fra globalizzazione e localismi, Cacucci, Bari, 2009, pp. 40 et seq.; M. Henzelin, Le principe de l’universalité en droit pénal international: droit et obligation pour les États de poursuivre et juger selon le principe de l’universalité, Bruylant, Bruxelles, 2000, p. 381; M.R. Mauro, Il principio di giurisdizione universale e la giustizia penale internazionale, CEDAM, Padova, 2012, pp. 187 et seq.

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Giuseppe Stuppia on the high seas, by an Italian naval vessel. In those circumstances, under international law and based on what was explained above, jurisdiction would equally lie with Somalia, France and Italy without any one of the three being able to claim priority over the other.9 That said, in practice, episodes of that type of conflict arise because, if anything, what actually happens is that nobody ends up prosecuting the pirates.10 9.3 UNCLOS and Jurisdiction over Piracy As far back as ancient Rome,11 pirates were considered by the international community as hostis communis omnium and as such could be prosecuted by any state,12 limiting the principle of freedom of navigation on the high seas.13 The rationale of that principle lies in the necessity to combat a threat common to all states that is a significant risk to international trade and communication.14 Indeed, some authors maintain the principle owes its existence to purely practical considerations, specifically the necessity to avoid letting acts of piracy go unpunished because of the difficulty in applying other jurisdiction criteria.15 The principle of universal jurisdiction has been expressly embraced by Article 105 UNCLOS, whereby on the high seas every state may pursue those responsible for acts of piracy, arresting them and seizing their property, including the ship and aircraft involved.

9

In particular, Somalia would have jurisdiction on the basis of the nationality of the pirates, France on the basis of the flag that the attacked ship was flying and Italy on the basis of Art. 105 UNCLOS. 10 On the other hand, from the standpoint of state and individual liability in relation to a case to do with combating piracy, there is currently a heated debate about the conflict of jurisdiction between Italy and India that arose in February 2012, following the alleged killing of two Indian fishermen by two Italian navy personnel, who at the time were on board a merchant ship, Enrica Lexie, as part of a vessel protection detachment. 11 Cicero, De Officiis, Book III, 107. 12 In this regard, see also, inter alia, S.S. Lotus case (France v. Turkey), 1927 PCIJ (Ser. A) No. 10. In particular, Judge Moore stated as follows: “Piracy by the law of nations, in its jurisdictional aspects, is sui generis. Though statutes may provide for its punishment, it is an offence against the law of nations; and as the scene of the pirate’s operations is the high seas, which it is not the right or the duty of any nation to police, he is denied the protection of the flag he may carry, and is treated as an outlaw, as the enemy of mankind – hostis humani generis – whom any nation may in the interest of all capture and punish.” By contrast, according to A. Cassese, Lineamenti di diritto internazionale penale. Diritto sostanziale, Vol. 1, Il Mulino, Bologna, 2005, p. 25, piracy cannot be classified as an international crime because of the significant differences between it and what normally passes for an international crime. In this regard, see also F. Graziani, Il contrasto alla pirateria marittima nel diritto internazionale, Editoriale Scientifica, Napoli, 2009, pp. 164 et seq. 13 See, e.g., Art. 110 UNCLOS providing that where there is reasonable ground for suspecting that “the ship is engaged in piracy,” a foreign warship or one on government service has a right to visit the ship to make the necessary checks. 14 See, among others, K.C. Randall, ‘Universal Jurisdiction Under International Law’, Texas Law Review, Vol. 66, 1988, pp. 785 et seq. 15 S. Krytman, ‘Universal Jurisdiction, Historical Roots and Modern Implications’, BSIS Journal of International Studies, Vol. 2, 2005, pp. 94 et seq.

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9  The Issue of Jurisdiction in Piracy Cases The courts of the state that carried out the seizure may decide upon the penalties to be imposed and the action to be taken with regard to the ships, aircraft or property subject to the rights of third parties acting in good faith.16 Therefore, every state, autonomously and independently from the other states, is free to set the rules and criteria that govern any action taken to combat piracy.17 However, it has been suggested18 that Article 105 UNCLOS might entail (at least) an obligation of aut dedere aut iudicare to that end bolstering Article 100 UNCLOS, according to which “[a]ll States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” Commencing from a literal interpretation of both articles, one can note that their wording is significantly less incisive than that of similar provisions contained, for example, in other treaties like the SUA Convention or the Hostages Convention. Moreover, it should be pointed out that at the time of the UNCLOS negotiations, a Maltese proposal that Article 100 should be worded as “all States have the obligation to prevent and punish piracy and to fully cooperate in its repression” was rejected. Therefore, in light of the ample discretion that states enjoy in taking domestic steps to repress piracy and the (vague) wording of Article 100 UNCLOS, it would seem that states have no aut dedere aut iudicare obligation at all. That said, reasoning in those terms, it is arguable that full discretion enjoyed by states, including even the possibility of not taking any action against the alleged pirates could well be considered to be contrary to a systemic interpretation of the antipiracy provisions of UNCLOS and, in particular, Article 300 thereof dealing with good faith. As regards the problem of piracy in Somalia, the apprehending states have concluded numerous agreements for the transfer of the alleged pirates to third states,19 whose compatibility with Article 105 UNCLOS would need to be investigated. In fact, a restrictive interpretation of the principle of Article 105 would imply a possibility for pirates to be

16 Art. 105 UNCLOS: “On the high seas, or in any other place outside the jurisdiction of any state, every state may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the state which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.” 17 On this point; Graziani 2009, p. 135. The author highlights that the wide discretion afforded to states may have adverse effects on the uniformity of domestic legislation on piracy and is a key reason as to why the fight against piracy is not that efficient. 18 R. Geiss & A. Petrig, Piracy and Armed Robbery at Sea – The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden, Oxford University Press, Oxford, 2011, p. 152. 19 Kenya has signed agreements in that regard with the EU (Council Decision 2009/293/CFSP of 26 February 2009, OJ L 79, 25.03.2009, p. 47), the United States of America, the United Kingdom, Canada, China and Denmark, but in 2010 denounced them all, continuing, however, to accept pirates on a “case-by-case basis.” The Seychelles has signed agreements with the EU (Council Decision 2009/877/CFSP of 23 October 2009, OJ L 315, 2.12.2009, p. 35), the United States of America, the United Kingdom and Denmark. Mauritius has signed agreements just with the EU (Council Decision 2011/640/CFSP of 12 July 2011, OJ L 254, 30.09.2011, p. 1). Finally, Tanzania has not signed any agreement, but is currently in negotiations with the EU.

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Giuseppe Stuppia tried solely in the forum deprehensionis and not transferred to third states. Nonetheless, both the practice just described (not disputed by other states) and UN Security Council resolutions (endorsing the agreements in question) lead one to conclude that transfers can be considered to be lawful, moreover reinforcing what was said a little earlier about the aut dedere aut iudicare obligation. Then, as regards suspected unlawful conduct, it should be noted that if the suspicion of piracy proves to be unfounded, the state making the seizure will be liable for any loss or damage caused to the flag state of the seized ship.20 That said, it is important to stress that pursuant to Article 107, “a seizure on account of piracy may be carried out only by warships or military aircraft or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect,” thereby excluding any possibility of private ships being involved in the fight against piracy. This shows how special the rules described above are, especially in relation to the option that third states have of policing ships flying the flag of another state even though only on the high seas. Moreover, in connection with the latest practice, recent UN Security Council21 resolutions have extended the applicability of the said rules also to the territorial waters of Somalia, incapable22 of independently controlling its own coasts that are the location of numerous acts of piracy.23 Unfortunately and despite that extension, measures to combat piracy continue, as aforesaid not to be very effective, and indeed the Security Council has on more than one occasion recommended states to criminalize piracy in their domestic law and exercise universal criminal jurisdiction wherever possible. 9.4 Exercise of Jurisdiction for Acts Other than Piracy that Threaten the Safety of Navigation Recent events have shown that not all illegal acts committed fall within the definition of piracy under customary law as codified in Article 101 UNCLOS. In effect, in many cases, 20 Art. 106 UNCLOS. 21 See SC Res. 1816 (2008), 1838 (2008), 1846 (2008), 1851 (2008), 1897 (2009), 1918 (2010), 1950 (2010), 1976 (2011), 2015 (2011), 2020 (2011) and 2077 (2012). 22 There has been much debate as to the legitimacy of the consent given by Somalia, which if considered a failed state, could hardly give a valid consent or indeed would not have any territorial waters at all. Moreover, pressure from China, Vietnam and Libya (the latter two countries were non-permanent members of the Security Council at the time of adoption of Res. 1816) led the Security Council to expressly exclude that the authorization to operate in Somali territorial waters could be a precedent, thereby limiting the possibility to exercise universal jurisdiction in other cases solely to the high seas in accordance with Art. 105 UNCLOS. On the subject of failed states, see P. Pustorino, ‘Failed States and International Law: The Impact of UN Practice on Somalia in Respect of Fundamental Rules of International Law’, German Yearbook of International Law, Vol. 53, 2010, pp. 727-752. 23 In that context, the Security Council authorized the use of force in as much as it categorized the situation as a threat to international peace and security. This would lead one to suppose that the use of force at sea falling within the definition in the UN Charter is to be distinguished from so-called maritime law enforcement.

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9  The Issue of Jurisdiction in Piracy Cases there is no piracy in a strict sense owing to the absence of one of its constituent elements such as, for example, the requirement that two ships be involved, the private ends pursued or the perpetration of the act on the high seas. In those cases, it is not possible to apply the rules designed to repress and combat piracy, including the exercise of universal jurisdiction, thereby in theory hindering effective repression. That said, in practice, such illegal acts can be tackled using some specific treaties such as the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA),24 the Convention against the Taking of Hostages25 and the Convention against Transnational Organized Crime (OCC),26 which can – although not to the same degree as UNCLOS – allow and facilitate the exercise of jurisdiction over and hence the fight against, especially in Somalia, acts that in practice are similar to piracy but from a formal standpoint are not.



In reality, the distinction between the use of force at sea and maritime law enforcement is often difficult to draw in light of the similarities of the measures falling within one or other of the categories. Moreover, it has been observed that Arts. 2.4 and 51 of the UN Charter must be interpreted in a manner consistent with the special features of the law of the sea. In the Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. the United States), Judgment of 27 June 1986, 1986 ICJ Rep., the ICJ did not draw a sharp distinction between police law enforcement and the use of force under the UN Charter; rather the court identified three different levels of the use of force, whose consistency with the provisions of the UN Charter must be checked in all cases anyway. Therefore, it would seem that the Security Council’s authorization adds very little to what was already permissible by interpreting the rules on maritime law enforcement as above, which as stated by D.P. O’Connell, The Influence of Law on Sea Power, The Manchester University Press, Manchester, 1976, already allow for a graduated use of force proportional to the threat to be repelled and different from self-defence in that force could also be used even in the absence of an attack. 24 The events that led to the negotiation and conclusion of the SUA Convention are well known, but it is worth recalling them here. On 7 October 1985, members of the Palestine Liberation Front (PLF) hijacked the Achille Lauro, flying the Italian flag, while cruising in the Mediterranean off the coast of Egypt. On board were 344 crew and 201 passengers, including the four hijackers. The hijackers demanded the release of PLF members jailed in Israel and during the hijacking murdered a disabled US citizen of Jewish origin. After frantic diplomatic negotiations, also due to mediation by the PLF and Egypt, the hijackers decided to surrender in return for promised immunity and for that reason were put on board an Egyptian airplane to be transported to Tunisia, where the PLF’s headquarter was located at the time owing to Israel’s invasion of Lebanon. However, upon learning of the killing of one of their citizens, the United States intercepted the Egyptian airplane and forced it to land at a NATO airbase in Sicily, Italy. This sparked one of the most serious diplomatic crises between Italy and the United States, which sought extradition of the four hijackers in order to try them under US jurisdiction. However, Italy refused to extradite the four hijackers and tried them itself for terrorism. The events surrounding the Achille Lauro led the IMO to adopt a resolution on the measures necessary to prevent unlawful acts that threaten the safety of ships and their passengers and crew, following which technical rules were issued, later to be used as the basis for negotiation of the SUA Convention. In this regard, see A. Cassese, Il caso Achille Lauro: terrorismo, politica e diritto nella comunità internazionale, Editori Riuniti, Roma, 1987; N. Ronzitti, ‘Alcuni problemi giuridici sollevativi dal Caso dell’Achille Lauro’, Rivista di Diritto Internazionale, Vol. 68, 1985, pp. 584 et seq. 25 1979 International Convention against the Taking of Hostages, 1316 UNTS 205. 26 2000 United Nations Convention against Transnational Organized Crime, 2225 UNTS 209.

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Giuseppe Stuppia For the sake of brevity, we shall examine only the SUA Convention here.27 Pursuant to Article 3 thereof, its provisions apply to any act that could endanger the safe navigation of a ship, irrespective of there being just one ship involved or the absence of private ends. The provisions cover seizure or exercise of control over a ship by force; acts of violence against a person on board a ship, be they passengers or crew; acts of destruction or damage. It should also be noted that Article 4 provides as follows: This Convention applies if the ship is navigating or is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States.28 Therefore, it is enough if the ship leaves or is scheduled to leave the territorial sea of a state for the provisions of the convention to apply. Article 6, on jurisdiction, sets out some principles that the states parties must or can rely in order to establish their own jurisdiction. In particular, it is provided that the state must exercise its own jurisdiction over the offences set forth in Article 3 when the offence is committed (i) against or on board a ship flying the flag of the state at the time the offence is committed, (ii) in the territory of that state, including its territorial sea or (iii) by a national of that state. Those three principles are those that mark out so-called compulsory jurisdiction. However, in paragraph 2 of Article 6, the Convention sets out three further principles for the exercise of jurisdiction that a state may (without obligation) rely on to establish its own jurisdiction over the offences set forth in Article 3 when: (i) the offence is committed by a stateless person whose habitual residence is in that state, (ii) during its commission a national of that state is seized, threatened, injured or killed or (iii) the offence is committed in an attempt to compel that state to do or abstain from doing any act. However, the Convention does not offer any criterion for the resolution of positive conflicts of jurisdiction that could arise between the states parties further to Article 6.29 There would not appear to be any particular problems in cases where the conflict arises between a state that wishes to exercise its jurisdiction pursuant to the first paragraph of Article 6 and another state that establishes its jurisdiction based on one of the optional linking factors set out in the second paragraph of that same article because in that situation it is only right to assume that the compulsory jurisdiction under paragraph 1 must be afforded precedence over optional jurisdiction under paragraph 2.

27 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1678 UNTS 201. 28 From the preparatory works one can deduce that the rationale of this provision is a wish to exclude cabotage from the Convention. 29 F. Francioni, ‘Maritime Terrorism and International Law: The Rome Convention of 1988’, German Yearbook of International Law, Vol. 31, 1988, pp. 263-288.

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9  The Issue of Jurisdiction in Piracy Cases The question becomes somewhat complicated when the dispute arises in the context of just compulsory jurisdiction or optional jurisdiction. The sole element in the convention of assistance in such a case is the fifth paragraph of Article 11 stating that the extraditing state must ‘pay due regard’ to the interests and responsibilities of the flag state.30 Even though one author31 has cast doubt on the interpretation of due regard, it is undeniable that in practice a preferential role is acknowledged for flag states so as to safeguard a key principle of the law of the sea. Along with providing for a general duty to punish, where an alleged offender is present in the state’s territory, the Convention imposes an aut dedere aut iudicare obligation, as mentioned before. In fact, according to the combined provisions of Articles 6.4 and 10.1, the state must exercise its jurisdiction without delay if it does not wish to extradite the alleged offender present in its territory to any of the states parties that have established their jurisdiction in accordance with paragraphs 1 and 2 of Article 6. In reality, the obligation to extradite the individual is not automatic, given that in many cases the extraditing state makes extradition conditional on the existence of a treaty of extradition with the state seeking extradition of the citizen. The Convention seeks to resolve this problem by providing that it can serve as the legal basis for extradition, but by permitting the extraditing state to impose further conditions, it ends up effectively thwarting the goal of facilitating extradition and in theory allows room for political interference (for example, a denial of extradition for ideological reasons).32 However, the 2005 Protocol to the Convention provides that “none of the offences should be considered for the purposes of extradition as a political offence,”33 but in this regard the practice to date is virtually non-existent. As one can note, the mechanisms provided for in the SUA Convention are much more complex than those under Article 105 UNCLOS and, above all, do not enable one to take measures comparable to those for repressing the crime of piracy. However, the rules, if adequately applied, especially in relation to Somalia, can contribute to putting a brake on criminal acts committed at sea that bear a close resemblance to piracy and have a dangerous connection with crimes such as international terrorism, acts that do not constitute actual piracy34 and would otherwise go unpunished. A demonstration of this comes from 30 Art. 11.5 of the SUA Convention: “A State Party which receives more than one request for extradition from States which have established jurisdiction in accordance with article 7 and which decides not to prosecute shall, in selecting the State to which the offender or alleged offender is to be extradited, pay due regard to the interests and responsibilities of the State Party whose flag the ship was flying at the time of the commission of the offence.” 31 M. Halberstam, ‘Terrorism on the High Seas: The Achille Lauro, Piracy and IMO Convention on Maritime Safety’, American Journal of International Law, Vol. 82, 1988, pp. 269-310. 32 E.g., political-cum-terrorist ideologies that justify such acts, enabling the perpetrators of offences under Art. 3 to obtain protection and exile in obliging states. 33 . 34 P. Lehr, Violence at Sea: Piracy in the Age of Global Terrorism, Routledge, New York, 2007; B. Mednikarov & K. Kolev, ‘Terrorism on the Sea, Piracy and Maritime Security’, Information and Security, An International Journal, Vol. 19, 2006, pp. 102-114.

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Giuseppe Stuppia the fact that the Security Council has on various occasions invited states that are not parties to the SUA Convention to ratify it, although its appeals have often fallen on deaf ears.35 9.5 Recent United Nations Developments In the face of unsatisfactory results obtained by the single states, the UN has recently stepped up its efforts to combat piracy. In addition to the measures already mentioned above, other action has been taken such as the establishment of the Contact Group on Piracy off the Coast of Somalia (CGPCS) or the setting up of various Trust Funds to respond more effectively to the upsurge in piracy. Furthermore, during 2011, the Office of Legal Affairs–Division for Ocean Affairs and Law of the Sea (DOALOS) and the United Nations Office for Drugs and Crime (UNODC) drew up some proposals containing the elements that should be incorporated by the states into their domestic law so as to facilitate the performance of UNCLOS obligations in relation to piracy. Those same proposals were recommended to the Member States of the IMO through a Circular Letter.36 In particular, according to DOALOS, the definition of piracy in domestic law should be brought into line with Article 101 as well as Articles 58.2, 102 and 103 UNCLOS. Moreover, again according to DOALOS, national legislation should, above all, contain rules relating to the exercise of universal jurisdiction without restrictions as to the nationality of the victim, the pirate or the ship itself, fully aware that Article 105 constitutes an exception to the customary principle of jurisdiction of the flag state on the high seas. That is, without prejudice to the need to regulate the enforcement measures linked to Article 105, including the right to seize the pirates’ ship and property on board and the right of visit, which may be exercised solely by vessels on government service. In particular, specific regulation is required to clarify the reasonable grounds for suspecting that a ship may be engaged in piracy, the method for exercising the right of visit and the procedure for seizing property, including the cases of liability and damages where action is unlawfully taken by the state. Finally, some proposals were drawn up in relation to the establishment of one or more specialized courts to deal with piracy. Regarding the above proposals, by Resolution 1918 (2010), the Security Council once again urged the Member States to exercise universal jurisdiction where possible and invited the Secretary General to submit a report to it on the possible options for a rapid and effective solution to the problem. In turn, in his Report S/2010/934 of 26 July 2010,37 35 E.g., of all the countries in the Somali area, only the Seychelles has ratified the SUA Convention. 36 IMO Circular Letter No. 3180 of 17 May 2011. 37 All of the documents can be found on the DOALOS website in the Piracy section .

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9  The Issue of Jurisdiction in Piracy Cases the Secretary General identified seven possible options, highlighting the pros and cons, following the work of CGPCS and taking into consideration the relevant practice in the area, resources and time necessary. In addition to enhancement of the UN assistance to build the capacity of regional states to combat piracy, the seven options proposed by the Secretary General, Ban Ki Moon, also included: the establishment of a Somali court sitting in the territory of a third state in the region, either with or without the UN participation; the establishment of a special chamber within the national jurisdiction of a state or states in the region, without the UN participation; the establishment of a regional tribunal on the basis of a multilateral agreement among regional states, with UN participation; the establishment of an international tribunal on the basis of an agreement between a state in the region and the UN; or, finally, the establishment of an international tribunal by Security Council resolution under Chapter VII of the Charter of the UN. Undoubtedly, while capacity building can be considered to be already ongoing and does not give rise to any particular disadvantages if not the need to find the resources necessary to continue operations in the Somaliland and Puntland regions,38 the proposal to establish a special Somali court sitting in the territory of a third state in the region (with or without UN participation) would, though reinforcing Somalia’s role, have the drawback of requiring time for implementation and a significant economic backing from the UN and the international community. No less problematic in terms of costs would be the proposal to establish a special chamber within the national jurisdiction of a state or states in the region, which, however, could benefit from the expertise gained by Kenya and the Seychelles thanks to the piracy trials that have been held in those countries over the past few years. The remaining proposals, since they involve the establishment of a totally new tribunal organized outside national jurisdiction, would require a relatively long time to implement, but as against that the tribunal in question would be more effective operationally than a special chamber of a Somali court. Moreover, a tribunal established under Chapter VII could well be located in a country outside the Somali region, thereby not guaranteeing the necessary proximity to the events and significant number of pirates during policing of the Somali coasts. On the other hand, from a strictly legal standpoint, a regional or internationalized tribunal would guarantee involvement by local judges even if matters such as jurisdiction, locus standi and procedure would all have to be the subject of new rules. It should also be noted that the Secretary General’s report excludes from the possible options other proposals submitted during the CGPCS’ work that would have entailed involvement of the International Criminal Court (ICC), the International Tribunal for

38 Somalia consists of eighteen administrative regions. Puntland, situated in the north-east, has declared itself to be an independent state within Somalia, whereas Somaliland, in the north-west, declared its full independence immediately after the fall of Siad Barre in 1991.

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Giuseppe Stuppia the Law of the Sea (ITLOS) or the African Court on Human and Peoples’ Rights (ACHPR). All three cases would have required negotiations aimed at amending the agreements establishing the three bodies in question, which would have excessively prolonged the amount of time necessary for implementation. To implement the listed proposals, the Security Council appointed a Special Adviser for the situation in Somalia with the task of checking the attitude of the states in the region towards establishing a tribunal or specialized courts. The Special Adviser conducted negotiations and talks with the European Union (EU), the states in the region and those most engaged in the fight against piracy, which led to the drawing up of a plan for the establishment of three specialized Somali courts: one in Somaliland, a second in Puntland and a third, extraterritorial, in one of the states in the region.39 According to what is stated in paragraph 119 of Report S/2011/30: The objective is to establish specialized courts in Puntland, Somaliland and outside Somalia. The extraterritorial court would eventually be transferred to Mogadishu. These courts would have concurrent jurisdiction: – The Puntland specialized court and the extraterritorial court would have universal jurisdiction under the counter-piracy law. – Somaliland, on the other hand, has Stated that it will only accept jurisdiction limited to acts committed by persons from Somaliland (irrespective of where the offence was committed and of the apprehending State) or in its territorial waters (irrespective of the suspect’s origin). It should also be stressed that according to the report, the extraterritorial Somali court would be temporary and constitute “a vehicle for strengthening the rule of law in Somalia.”40 From that standpoint, the court would initially be located in Arusha, in Tanzania, and would use the facilities of the Rwanda Tribunal, after which it would move to Mogadishu. Established through two separate agreements, one between Tanzania and Somalia and the other between Tanzania, Somalia and the UN, the extraterritorial court would consists solely of Somali judges trained by the UN, but appointed by the Transitional Federal Government (TFG) on the basis ‘where possible’41 of a list drawn up by the UN Political Office for Somalia (UNPOS).

39 The Special Adviser Lang has highlighted that the judicial framework in the two territories is in many respects still primitive and estimates that only 5% of judges have had legal training. Furthermore, Puntland has not yet abolished the mechanism of the security committee, a body which comes under the executive branch and has the power to void a court ruling at any time. See para. 116 of SG Report S/2011/30. 40 SG Report S/2011/30, p. 39. 41 SG Report S/2011/30, para. 124.

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9  The Issue of Jurisdiction in Piracy Cases As regards the two courts in Somaliland and Puntland, their structure would be identical to that of the extraterritorial court except that judges would be chosen from among professors in the faculties of law at Somali universities. All three courts would enjoy adequate international support ranging from involvement by UNODC and the African Union in the actual setting up of the courts to the deployment of an EU-CFSP mission to strengthen the rule of law.42 For its part in its Resolution 1976 (2011) adopted on 11 April 2011, the Security Council welcomed the Special Adviser’s report and requested the Secretary General to report on the modalities of the prosecution mechanisms mentioned above, including on the envisaged international support and assistance. In his Report S/2011/360 of 15 June 2011, the Secretary General clarified first and foremost that the strengthening of the rule of law in Somalia remains the guiding principle underlying the proposal for the establishment of Somali specialized anti-piracy courts and then went on to tackle the numerous unresolved legal issues such as the legal basis for the courts, applicable law, section and training of judges, and especially the financing and the timeline for the establishment of such courts. Nonetheless, a closer examination of the report raises many doubts as to the efficacy of the solutions proposed, and especially some important legal issues. In particular, since the courts (including the extraterritorial one) would be rooted in the Somali judicial system, their legal basis would have to be in Somalia constitutional law, and the applicable law would have to be Somali domestic law. That, however, is one of the biggest problems posed because Somaliland has no anti-piracy laws and Puntland’s law contains a definition of piracy not in line with that found in UNCLOS. In that context, sometime ago, the United Nations Development Programme (UNDP) and UNODC appointed a team of experts to assist the two regions in adopting anti-piracy laws, an essential condition for the establishment and future success of the three courts. There are many other misgivings regarding the training of the judges that would have to sit on the courts since very few Somali citizens have any legal background, and hence enormous efforts would need to be made to train qualified personnel capable of ensuring compliance with high international standards, above all in relation to human rights. Then special attention would need to be paid to the question of what criminal procedure rules should accompany the establishment of the courts because the sphere of their application would need to cover complex situations that would entail the overlapping jurisdiction of the apprehending state (that could be a third state or the EU) and that of Somalia. In particular, as regards the scenario of an extraterritorial court, the situation becomes more complicated since its location outside Somalia would call for the resolution of problems linked to its establishment in a legal system other than that where it is located. Its 42 However, the total cost of the operation is estimated to be not less than USD 25 million, and the report does not clarify where the financing will come from, given that the various trust funds set up are insufficient to cover the costs.

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Giuseppe Stuppia location should be in Tanzania, which, as aforesaid, has shown itself open to that hypothesis, unlike the Seychelles, which would prefer to continue combating piracy at the national level allied to the transfer agreements it has concluded with a number of Western countries. In the scenario envisaged in the report, the court, though using the facilities of the Rwanda Tribunal, would consist solely of Somali judges, and the role of the UN would be limited to training the new judges, as would also be the case in Puntland and Somaliland. Moreover, it would be necessary for all of the relevant transfer agreements to be concluded not only with Somalia, but also with Tanzania so as to clarify and govern the duties and responsibilities of each of the states concerned, especially as regards human rights. Further, no less complex are the problems of a logistical–organizational nature that would have to be resolved, chief among which is the building of new prisons and infrastructure to support the operation of the courts. Funding is another difficulty because the majority of the resources would have to come from voluntary contributions that might be hard to come by given the current economic climate.43 The Report S/2012/50, submitted in February 2012, examines in depth for each of the states concerned (Somalia, the Seychelles, Kenya, Mauritius and Tanzania) both the relevant legal framework for the possible establishment of the extraterritorial Somali court, technical-operating capacity (e.g., regarding what trials could potentially be held) and prison facilities. Without dwelling that much on the content of the report, it is worth noting that despite the Secretary General’s hopes, it is clear that at best the courts will be established in a number of years’ time with notable and complicated legal issues as highlighted in each of the single recommended steps, which will entail complexities from both an operational and legal standpoint. 9.6 Some Domestic Laws on Piracy The analysis conducted thus far highlights a necessity to examine some of the domestic legislation adopted by individual states to implement their obligations under UNCLOS. In this regard, it should be noted that Article 105 grants states the power to exercise their own jurisdiction, but it is domestic law that gives real effect to that power.44 To that end, there 43 After SG Report S/2011/360, the Security Council, in its Res. 2015 (2011), welcoming the consultations between the UN and regional states, including the Seychelles, Mauritius, and Tanzania, reiterated its hope for a rapid establishment of the new courts. The Security Council is extremely confident that piracy trials being conducted by courts in Somaliland and Puntland will reach international standards in about three years so as to facilitate the establishment of the new courts. On closer examination, Res. 2015 (2011) adds nothing new to the conclusions in the above-mentioned report, leaving one to suppose that the current deadlock will continue, a situation confirmed by the later 2020 (2011), in which the Secretary General is once again requested to report back within eleven months after the date of the resolution in question. 44 It should be noted that Art. 105 provides the state may exercise its own jurisdiction; it does not provide that the state must do so. In fact, often gaps in or the absence altogether of domestic criminal provisions thwart the very effectiveness of the UNCLOS provisions, preventing the effective repression of acts of piracy.

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9  The Issue of Jurisdiction in Piracy Cases follows a comparative analysis of counter-piracy rules adopted in Argentina, Kenya, Mexico, Singapore, Spain and the United States (US), with special attention also paid to Italy. Those rules constitute valid examples of the non-uniformity of domestic law on piracy. 9.6.1

The Definition of Piracy and Applicable Punishment

First and foremost it should be noted that within the context of domestic criminal law, the provisions in Argentina, Mexico, Spain and the United States depart significantly from the definition of piracy in Article 101 UNCLOS. In particular, the Argentine Criminal Navigation Code does not refer to the customary notion of piracy and includes in Article 19845 some conduct not envisaged by UNCLOS.46 The acts of depredation and violence indicated in the Argentine article do not necessarily have to be committed for private ends or originate from one ship against another ship, but it is sufficient that they are committed without the authorization of a belligerent power or exceeding the limits of a lawful authorization granted. Even though paragraphs 3, 4, 5 and 6 of Article 198 set out some particulars of depredation and violence, the wording of paragraph 1 is such that it covers any action (algun acto) against the ship and the persons on board. It should also be noted that the expression piracy is used solely in the heading of Chapter III and no mention is made of it within the articles. Punishment ranges from three to fifteen years’ imprisonment, from ten to twenty five years if the crime leads to the death of a person. Like Argentine law, Mexican law contains a definition of piracy not consistent with customary law. In particular, Article 146 of the Federal Criminal Code47 declares that a pirate 45 “Articulo 198. Será reprimido con reclusión o prisión de tres a quince años: 1. El que practicare en el mar o en ríos navegables, algún acto de depredación o violencia contra un buque o contra personas o cosas que en él se encuentren, sin estar autorizado por alguna potencia beligerante o excediendo los límites de una autorización legítimamente concedida; 2. El que practicare algún acto de depredación o violencia contra una aeronave en vuelo o mientras realiza las operaciones inmediatamente anteriores al vuelo, o contra personas o cosas que en ellas se encuentren, sin estar autorizado por alguna potencia beligerante o excediendo los límites de una autorización legítimamente concedida; 3. El que mediante violencia, intimidación o engaño, usurpare la autoridad de un buque o aeronave, con el fin de apoderarse de él o de disponer de las cosas o de las personas que lleva; 4. El que, en connivencia con piratas, les entregare un buque o aeronave, su carga o lo que perteneciere a su pasaje o tripulación; 5. El que, con amenazas o violencia, se opusiere a que el comandante o la tripulación defiendan el buque o aeronave atacado por piratas; 6. El que, por cuenta propia o ajena, equipare un buque o aeronave destinados a la piratería; 7. El que, desde el territorio de la República, a sabiendas traficare con piratas o les suministrare auxilio.” 46 Argentina ratified UNCLOS on 1 December 1995. 47 “Artículo 146. Serán considerados piratas: I. Los que, perteneciendo a la tripulación de una nave mercante mexicana, de otra nación, o sin nacionalidad, apresen a mano armada alguna embarcación, o cometan depredaciones en ella, o hagan violencia a las personas que se hallen a bordo; II. Los que, yendo a bordo de una embarcación, se apoderen de ella y la entreguen voluntariamente a un pirata, y III. Los corsarios que, en caso de guerra entre dos o más naciones, hagan el corso sin carta de marca o patente de ninguna de ellas, o con patente de dos o más beligerantes, o con patente de uno de ellos, pero practicando actos de depredación contra buques de la República o de otra nación para hostilizar a la cual no estuvieren autorizados. Estas disposiciones deberán igualmente aplicarse en lo conducente a las aeronaves.”

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Giuseppe Stuppia is any member of a crew of a Mexican merchant ship or a ship flying another flag or no flag at all that commits acts of depredation against another ship, takes control of it by force or uses violence against the persons on board. Also included in the definition of pirate is anybody who when on board a ship takes control of it and delivers it into the hands of pirates. Punishment in the above cases ranges from fifteen to thirty years’ imprisonment. Following the reform of its Criminal Code in 2010, Spain introduced a new crime in Article 616ter called “Crime of Piracy.” Article 616 ter differs from Article 101 UNCLOS in that it does not require that two ships be involved or that the acts be committed for private ends, which means that the definition of piracy is much broader than the customary one. Furthermore, Article 616 ter includes marine platforms in accordance with the provisions of the 2005 Protocol to the SUA Convention.48 Punishment for the crime of piracy ranges from ten to fifteen years’ imprisonment. As for the United States, the most important rules are to be found in Chapter 81 – Title 18 of the United States Code (USC) dealing with “piracy and privateering.”49 Sections 1651 et seq. broaden the definition of piracy and punish by life imprisonment conduct that falls outside the scope of Article 101 UNCLOS. In fact, Section 165250 on “Citizens as pirates” provides that any citizen of the United States who commits any murder or robbery or any act of hostility against the United States is a pirate and will be imprisoned for life. The same punishment applies to any seaman who hinders his commander from fighting in defence of his vessel or its cargo. The situation differs for foreign citizens, who will be considered to be pirates and subject to life imprisonment only if the provisions of any treaty existing between the United States and the state of which the offender is define the acts as piracy. By contrast, the laws of Singapore and Kenya mirror almost word for word the provisions of UNCLOS as regards the definition of piracy. In particular, Singapore has some of the most stringent piracy legislation in the world. In fact, Chapter 224 of its Criminal Code51

48 “Artículo 616 ter.-El que con violencia, intimidación o engaño, se apodere, dañe o destruya una aeronave, buque u otro tipo de embarcación o plataforma en el mar, o bien atente contra las personas, cargamento o bienes que se hallaren a bordo de las mismas, será castigado como offender del delito de piratería con la pena de prisión de diez a quince años.En todo caso, la pena prevista en este artículo se impondrá sin perjuicio de las que correspondan por los delitos cometidos.” 49 . 50 “Sec. 1652. Citizens as pirates. Whoever, being a citizen of the United States, commits any murder or robbery, or any act of hostility against the United States, or against any citizen thereof, on the high seas, under color of any commission from any foreign prince, or state, or on pretense of authority from any person, is a pirate, and shall be imprisoned for life.” 51 “Piracy by law of nations. Cf. 12 and 13 Victoria c. 96 (Admiralty Offences (Colonial) Act 1849) 130B. 1. A person commits piracy who does any act that, by the law of nations, is piracy. [35/93] 2. Whoever commits piracy shall be punished with imprisonment for life and with caning with not less than 12 strokes, but if while committing or attempting to commit piracy he murders or attempts to murder another person or does any act that is likely to endanger the life of another person he shall be punished with death. [35/93]”

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9  The Issue of Jurisdiction in Piracy Cases provides for life imprisonment and caning with not less than twelve strokes for whoever commits acts of piracy, while the death penalty can be imposed if, while committing or attempting to commit piracy, the offender murders or attempts to murder another person or simply endanger the life of another person. As regards Kenya, it should be noted that the Merchant Shipping Act distinguishes between armed robbery against a ship and piracy, they being two separate offences for acts committed in the country’s territorial waters. However, both offences attract a punishment of life imprisonment. From the rapid analysis of the crime of piracy and how it is punished in some states, there is clear evidence of a lack of uniformity among the legislation considered, which is all the more surprising since all of the countries mentioned, except the United States, have ratified UNCLOS, and Article 101 reproduces a rule of customary law. What is most striking is the difference in the punishment envisaged in the various legal systems, ranging from three years in Argentina to life imprisonment in the United States or Kenya or even to capital punishment in Singapore. Those differences in domestic law make it harder on an international level to repress a phenomenon that the states are committed in principle to combating. 9.6.2

Rules Governing the Exercise of Universal Criminal Jurisdiction

As regards the exercise of universal criminal jurisdiction for the repression of piracy, the domestic laws of Argentina, Mexico and Kenya would appear to lack any implementing provisions. Therefore, outside the cases provided for in their respective criminal codes, it would seem that the principle of universal criminal jurisdiction is difficult to apply in practice52 despite being a rule of customary law.

52 That said, as regards Kenya one must bear in mind the judgment in the In re Mohamed Mohammed Hashi et al. case, Civil Appeal 113 of 2011, Judgment of 18 October 2012, Court of Appeal of Nairobi , which overturned the judgment at first instance, thereby recognizing that Kenya had universal criminal jurisdiction over the crime of piracy. In 2010 the High Court of Mombasa had ruled that under the Merchant Shipping Act 2009, Kenya could prosecute armed robbery committed in its territorial waters, but not piracy committed on the high seas where there was no genuine link with Kenya. However, in the appeal judgment, Judge Maraga maintained that the “Mombasa High Court misinterpreted Kenyan law, by subordinating a specialized substantive section on piracy to a more general section on jurisdiction.” Therefore, since piracy in Somalia constitutes a global threat, it was held that Kenya had the right to exercise universal jurisdiction. However, a close examination of the judgment does not give one to understand what the basis for Kenya’s exercise of universal jurisdiction is since there are no domestic implementing provisions regarding that matter even though the principle is one of customary law. One could rightly suppose that the legal basis lies in the transfer agreements concluded by Kenya, but in this case it would not appear to be a pure application of the principle of universal jurisdiction, as the Court of Appeal seems to infer.

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Giuseppe Stuppia The situation is different when it comes to the domestic law of Singapore, the United States and Spain. In particular, in Singapore, Chapter 332 of the Supreme Court Judicature Act53 contemplates an exercise of the country’s jurisdiction over any act of piracy, as defined under the law of nations, committed on the high seas. Therefore, Singapore embraces the principle of universal criminal jurisdiction in its absolute sense, not making it subject to any condition or genuine link with its legal system. On the other hand, the United States and Spain have opted for a conditional application of the principle in question. In practice, those states have laid down further conditions in addition to it being necessary that the act of piracy has been committed on the high seas. In particular, under Section 1651 of the USC, the United States exercises universal criminal jurisdiction over piracy committed on the high seas as defined in Article 101 UNCLOS on condition that the offender is ‘found in’ or ‘brought into’ the United States.54 It is irrelevant that the United States has not ratified UNCLOS since Articles 101 and 105 codify customary law.55 Nothing specific is laid down in relation to the property belonging to pirates because the USC addresses it only indirectly in Section 1660, providing that whoever, without lawful authority, receives or takes into custody any vessel, goods, or other property, feloniously taken by any robber or pirate against the laws of the United States, knowing the same to have been feloniously taken, shall be imprisoned not more than ten years. Finally, as regards Spain,56 a recent 2009 amendment to the Ley Organica del Poder Judicial introduced Article 23 further to which conditional universal jurisdiction may be exercised in relation to piracy in as much as Spanish jurisdiction extends to acts of piracy committed by a Spanish or foreign citizen only if the offender is to be found in Spain or if a Spanish citizen is involved as a victim.57 It is worth noting that over the years Spain has amended 53 “Criminal jurisdiction. 15 – 1. The High Court shall have jurisdiction to try all offences committed: a) within Singapore; b) on board any ship or aircraft registered in Singapore; c) by any person who is a citizen of Singapore on the high seas or on any aircraft; d) by any person on the high seas where the offence is piracy by the law of nations; e) by any person within or outside Singapore where the offence is punishable under and by virtue of the provisions of the Hijacking of Aircraft and Protection of Aircraft and International Airports Act (Cap. 124) or the Maritime Offences Act (Cap. 170B) and f) in any place or by any person if it is provided in any written law that the offence is triable in Singapore. 2. The High Court may pass any sentence allowed by law.” 54 “Sec. 1651. Piracy under law of nations. Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” 55 Ratification of UNCLOS is a matter currently under debate in the US. 56 C. Espaliu Berdu, ‘The Crime of Maritime Piracy in the 2010 Reform of the Spanish Penal Code’, Spanish Yearbook of International Law, Vol. 16, 2010, pp. 55-93. 57 Spain has recently prosecuted, convicted and sentenced two Somali pirates to 439 years of imprisonment each. Those pirates were found guilty of having seized a Spanish ship Alakrana on 2 October 2009 and held it for 47 days.

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9  The Issue of Jurisdiction in Piracy Cases its rules on universal criminal jurisdiction a number of times, rules that in Spain also cover international crimes and not just piracy.58 It is clear from all of the foregoing that the laws of the states in question (selected because they offer the most interesting case studies) do not allow for an easy, practical or uniform application of the principle of universal criminal jurisdiction to the crime of piracy since they lay down limits or conditions or incorporate no specific provisions at all, a testimony to those states’ reluctance to pursue pirates that have no link with them. 9.7 Italian Law UNCLOS was ratified by Italy through Legge n. 689/1994,59 which made no mention of repression of the crime of piracy or the exercise of Italian jurisdiction. In the absence of special provisions and up to 2008, the general provisions of the Codice della navigazione (Navigation Code)60 applied, in particular, Articles 1135 and 1136. The former article ­provides that the captain or officer of a ship who commits acts of depredation against a ship or acts of violence against persons on board will be punished by a term of imprisonment ranging from ten to twenty years, while crew members who commit those same acts are liable to a lesser punishment. The latter article concerns ships suspected of piracy and imposes a term of imprisonment ranging from five to ten years on the captain or officer of a ship that sails without documents and illegally has arms on board. Articles 1135 and 1136 apply to crew and passengers, including those of a foreign ship. Regarding Italian jurisdiction over the crime of piracy committed abroad, one must consider the provisions of Article 1080 of the Navigation Code to the effect that the provisions of the code “do not apply to members of the crew and passengers of foreign ships or aircraft unless otherwise provided for.” This implies that Italy may exercise its own jurisdiction o ver pirates (although just the captain) even in the case of acts committed abroad (for example, in the territorial waters of another state)61 on condition that the Italian citizens or foreigners who committed the offence “are in the service of an (Italian) ship or aircraft.” In other cases (pirate ships flying a foreign flag or none at all, members of the crew or passengers), jurisdiction can exist solely on the basis of Articles 9 (common 58 In particular, the 1985 Ley orgànica del poder judicial as originally worded was interpreted by Spanish courts to the point of their being able to try offenders in absentia. In 2000, the Supreme Court gave a restrictive interpretation of the principle, which, however, was not followed in two later decisions of 2005 and 2007 that embraced universal jurisdiction in absolute terms. For more details on the topic, see Mauro 2012, pp. 70 et seq. See also A. Del Vecchio, International Courts and Tribunals Between Globalization and Localism, Eleven International Publishing, The Hague, 2013. 59 Legge n. 689/1994, Official Journal of the Italian Republic No. 295, 19 December 1994, Supplemento ordinario n.194. 60 See . 61 Nonetheless, that does not rule out that the state where the crime was committed can exercise its own jurisdiction.

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Giuseppe Stuppia crimes committed by an Italian citizen abroad) and 10 (common crimes committed by a foreigner abroad) of the Criminal Code. In both cases, jurisdiction is conditional on the offender’s presence in Italy or in a place subject to its sovereignty. By contrast, Italian jurisdiction over crimes committed on the high seas is based on customary law and Article 7(5) of the Criminal Code, which provides that Italian criminal law applies whenever specific provisions of international conventions so prescribe. Where Italian jurisdiction exists, acts typical of the exercise of criminal jurisdiction may be carried out such as arrest while caught in the act of committing the offence (Arts. 380 and 381 of the Criminal Procedure Code) and confinement of a person under investigation for an offence (Art. 384 of the Criminal Procedure Code). In this regard, it is as well to point out that any such acts can be carried out solely by judicial police officers and agents, a status afforded to the captain of Italian warships under Article 1235 of the Navigation Code but solely “for acts carried out at the behest of consular authorities or in case of urgency on his own initiative.” The situation changed partially following the adoption of Decreto Legge n. 209/2008,62 converted by parliament into Legge n. 12/2009,63 and Decreto Legge n. 61/2009,64 it too converted by parliament into Legge n. 100/2009.65 In particular, the second decree was adopted after deployment of the Atalanta mission and the agreements concluded by the EU with Kenya and the Seychelles relating to the transfer of apprehended pirates. More specifically, Article 5.4 of Decreto Legge n. 209/2008, as amended by Article 1 of Decreto Legge n. 61/2009, provides that offences under Articles 1135 and 1136 of the Navigation Code and connected ones within the meaning of Article 12 of the Criminal Procedure Code,66 if committed to the detriment of the state or Italian citizens and property,67 on the high seas or in the areas where the Atalanta mission operates (i.e. Somali territorial waters on foot of a UN Security Council resolution), are to be prosecuted pursuant to Article 7 of the Criminal Code under the jurisdiction of the Tribunal of Rome.68 However, as one author has observed,69 it is difficult to imagine that an offence under Article Decreto Legge n. 209/2008, Official Journal of the Italian Republic No. 304, 31 December 2008, p. 12. Legge n. 12/2009, Official Journal of the Italian Republic No. 47, 26 February 2009, p. 1. Decreto Legge n. 61/2009, Official Journal of the Italian Republic No. 137, 16 June 2009, p. 1. Legge n. 100/2009, Official Journal of the Italian Republic No. 177, 1 August 2009, p. 1. In other words, crimes committed by several persons, crimes that are a continuation of others and crimes that are committed to perpetrate or conceal the crime of piracy or ship suspected of piracy. 67 As one can note, Italy, like Spain, restricts the cases in which its jurisdiction can be exercised by providing for the prosecution solely of those acts that affect the state, its citizens and their property, thereby ruling out an absolute application of the principle in Art. 105 UNCLOS. 68 In January 2013, in relation to an attack against an Italian ship Montecristo, the Corte di Assise of Rome sentenced Somali pirates to nineteen years (leader) and sixteen years (other members of the band) after convicting them of attempted kidnapping with a view to extortion, possession of weapons of war and damage to a vessel, but without terrorist ends. The key point here is that they were charged not with a crime under Art. 1135 of the Navigation Code, but with the other crimes mentioned. 69 J.P. Pierini, ‘L’aspetto giuridico nazionale (diritto marittimo e penale)’, in M. Annati & F. Caffio (Eds.), Pirati di ieri e di oggi, Supplemento Rivista Marittima, Vol. 12, 2009, pp. 70 et seq. 62 63 64 65 66

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9  The Issue of Jurisdiction in Piracy Cases 1136 (ship suspected of piracy) could be committed to the detriment of somebody, which means that one would have to directly apply Article 1135 and not 1136. The situation is then complicated by the fact that the illegal transport of arms must be established according to domestic law or the law of the flag state if on the high seas or Somalia if one is sailing in territorial waters, thereby making the application of Article 1136 even more complicated.70 In this context one would well ask whether Italian law actually allows pirates apprehended by Italian warships to be transferred to third states. In this regard, the adoption of Decreto Legge n. 61/2009 is a watershed because before that an individual could be handed over solely in accordance with the general provisions governing foreign extradition. Therefore, it was necessary to distinguish between rendition to a country that Italy had a bilateral or multilateral extradition treaty with and rendition to a country that Italy had no such treaty with. The conditions that had to be fulfilled before extradition could be granted were (and are) those set out in the single treaties and Articles 697 et seq. of the Criminal Procedure Code.71 Introducing changes on the basis of Council Joint Action 2008/851/CFSP of 10 November 2008 and Council Decision 2009/293/CFSP of 26 February 2009,72 Decreto Legge n. 61/2009 made provision for seizing a pirate ship and detaining the pirates on board with a view to subsequently transferring them to a third state that would exercise jurisdiction in the matter.73 70 It should be borne in mind that Art. 1136 of the Navigation Code can be applied also with reference to Somali territorial waters only on foot of a Security Council resolution and consent given by Somalia. Otherwise or in the territorial waters of any other state, action to repress piracy may be taken solely by the relevant coastal state. 71 Interesting in this regard is the case of the nine pirates apprehended by the Italian warship Maestrale on 22 May 2009. At that time, Decreto Legge n. 61/2009 had not been adopted, and it was not legally possible to transfer the pirates to Kenya because, although the EU–Kenya transfer agreement had been concluded in 2009, Italy had still not given effect to it. Leaving aside extradition, that state of affairs meant that Italy had to either release the pirates or exercise its jurisdiction under Art. 105 UNCLOS and Art. 7 of the Italian Criminal Code (solely at a later date would Decreto Legge n. 61/2009 restrict the scope of application of universal jurisdiction in Italy for the crime of piracy). Thus, judicial proceedings with a view to ratifying the arrest got underway and the associated questioning took place by videoconference. The investigating judge granted the prosecution’s request that the pirates be provisionally remanded in custody on board the warship Maestrale. The detained pirates were assigned a public defender, who after speaking to his clients by satellite, issued the following statement: “The nine Somalis were calm, serene and satisfied with their treatment on board. They are confident that in the end the truth will come out.” For their part, the pirates had recounted that they were unemployed fishermen who had been forced by Bin Laden’s henchmen to become pirates in order to avoid reprisals against their family. Subsequently, despite the Maestrale’s scheduled return to Taranto on 7 June 2009, the pirates were kept aboard in pre-trial custody until 15 June 2009, the date on which Decreto Legge n. 61/2009 was adopted and an order issued for their release and contemporaneous transfer to Kenya. Certainly, the length of time that the pirates were held in custody on board the Maestrale until adoption of the above-mentioned decree is symptomatic, at the very least, of a lack of political will by Italy to exercise universal jurisdiction and try the nine pirates that it had apprehended. 72 Council Joint Action 2008/851/CFSP of 10 November 2008, OJ 2008 L 301, p. 33; Council Decision 2009/293/CFSP of 26 February 2009, OJ 2009 L 79, p. 47. 73 Numerous misgivings were expressed about the compatibility of the procedure with human rights law and in particular the European Convention on Human Rights (ECHR), considering that the handing over is

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Giuseppe Stuppia 9.8 Conclusions The analysis conducted so far raises interesting questions regarding the application of the principle of universal criminal jurisdiction on piracy. In fact, the recent attention paid to the phenomenon following its intensification off the coast of Somalia could well be primarily due to the important economic and political interests at stake and not a yearning to protect general interests. Proof of that assertion can easily be found if one considers that the UN has never intervened in South-East Asia in the way that it has in Somalia. For many years, the Straits of Malacca have witnessed constant attacks by pirates, and still today statistics show that it is one of the highest areas at risk of piracy. However, the international community’s interest is not at the level shown in relation to Somalia because in Asia coordination between the states of the region is more effective and achieves concrete results. In that regard worth mentioning is the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) signed on 11 November 2004 in Tokyo by all countries affected by piracy in South-East Asia. In particular, the agreement sets up a centre of coordination in Singapore for all of the states parties with a view to facilitating the flow of relevant information on piracy, attacks and legal tools that can be used to combat the phenomenon and also imposes stringent obligations on the states parties. On the contrary, in Somalia, the mobilization of the international community and the deployment of huge resources have not achieved the results that one would have expected. In fact, judging by what has happened in practice, it has been observed that the principle of universal jurisdiction codified in Article 105 UNCLOS has suffered and continues to suffer from its rare application by states for a variety of legal and political reasons. They seem to accord priority to freedom of the high seas over enforcement action against piracy unless, of course, the acts of piracy directly threaten them. All of this, however, turns out to be compatible with international law because a careful reading of Article 105 UNCLOS reveals a power but not a duty for states. That approach does not raise any particular legal problems since the customary principle enshrined therein is an exception to the equally customary principle further to which on the high seas the jurisdiction exercisable over a ship is that of the flag state. However, that argument ignores Article 100 UNCLOS, which, by contrast, invites states to cooperate in the repression of piracy and hence also to work with one another in pursuing criminal prosecution of pirates to the end and exercising where possible their own jurisdiction. Therefore, while not disputing that Article 105 UNCLOS grants a power to and does not impose

mandated by law and there is no judicial review of the detention and subsequent rendition. Some of the states participating in the ATALANTA mission further stated that they were not liable for the detention and rendition of the pirates because the action was one formally attributed to the EU, and hence there could be no breach by them of Art. 5 ECHR, which provides for a procedure prescribed by law and subject to judicial review.

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9  The Issue of Jurisdiction in Piracy Cases an obligation on states to iudicare, it is arguable that it does imply an aut dedere aut iudicare obligation. That said, it is also true that Article 100 UNCLOS is rather general and vague as to its content, and hence it is difficult to interpret. Another problem that makes application of the principle of universal jurisdiction difficult in practice is domestic anti-piracy legislation. In fact, the principle in Article 105 UNCLOS is frequently thwarted by gaps in or even the total absence of domestic rules capable of regulating the complex aspects linked to apprehending pirates on the high seas. Somalia, in particular, is a failed state and its domestic laws contain no special rules on piracy. Indeed, at times, it is the states themselves that consciously exclude the possibility of exercising universal jurisdiction for political reasons. Not very convincing either is the position of those who argue that the definition of piracy in Article 101 UNCLOS is unduly restrictive, thereby meaning that it cannot be applied to the special circumstances that many of the acts of piracy often exhibit. They point to the fact that various international rules contained in the Hostages Convention, the SUA Convention and OCC permit the states parties to exercise their own jurisdiction in the matters covered by those treaties although they cannot exercise the same powers under UNCLOS in relation to piracy. But once again, if one examines what happens in practice, there are very few cases in which jurisdiction is actually exercised. If anything, states have preferred to conclude various agreements with third states (for example, Kenya and the Seychelles) to transfer the alleged pirates apprehended during patrols to ensure that they are tried and convicted by neighbouring states rather than before the apprehending states’ own courts. Regarding proposals floated in UN circles, it is arguable that extending the jurisdiction of ITLOS,74 although complex, would have been the most effective solution from a global perspective because ITLOS could have complemented the establishment of the specialized Somali courts. Obviously, complicated negotiations would have been necessary to amend UNCLOS or conclude a new agreement to permit the tribunal to hear cases in relation to piracy, even on the basis of concurrent jurisdiction and without primacy over that of domestic courts. At the same time, one would have had to tackle the question of the rules governing the transfer of pirates to the tribunal’s headquarters, the gathering of evidence and the right to a fair trial, not to mention logistical issues like adequate prison facilities compliant with human rights law. Furthermore, Germany would probably oppose any extension of the jurisdiction of the tribunal since that would mean it had to hold the pirates in its territory at least during the trial and afterwards too in connection with the pirates’ possible detention. This last aspect could have been overcome more easily by amending the Statute of the ICC because the latter for the purposes of exercising its typical functions already has

74 On the Jurisdiction of the ITLOS see – also for the other literature cited therein – R. Virzo, ‘Tribunale internazionale del diritto del mare’, Enciclopedia del diritto, Annali V, 2012, pp. 1346-1366.

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Giuseppe Stuppia the above-mentioned facilities. That said, even just establishing a special chamber for piracy could lead to negotiations even more complicated than those that would be required for ITLOS. Naturally, neither of the above two options would be impossible to achieve, but certainly would need strong political will on the part of the international community, which to date would seem to be lacking.75 This only serves to reinforce the view that states no longer view piracy as a global threat unless somehow linked to terrorism and other criminal activities that threaten international peace and security. It is true that in the few cases where they exercised universal jurisdiction, the states did so on the basis of Article 105 UNCLOS but almost all recent practice points in the opposite direction and one can detect a certain asymmetry between the position advocated by the states at the Security Council and what they then actually do. Moreover, the proceedings commenced in Kenya, the Seychelles and in the other states of the region are the result of repeated prodding by the Security Council and not a pure application of the principle itself. Furthermore, patrols by the EU, NATO and the US was stepped up only after the Somali situation was classified by the Security Council as posing a risk to peace, even though international law would have allowed action to be taken against piracy outside Somali territorial waters. It is no coincidence that the first Security Council measures display a certain faith in Member States and their willingness to exercise universal criminal jurisdiction and focus on an extension of powers of enforcement to Somali territorial waters in the expectation that that would have facilitated the states in their own independent action to contrast and prosecute alleged pirates. But the analysis conducted reveals that this has not turned out to be the case and leads one to conclude that that circumstance cannot be ignored and must necessarily be taken into account in relation to future developments and the practice that states will adopt.

75 Suffice it to bear in mind that at the Kampala Conference of 2010 convened to consider amendments to the Statute of the International Criminal Court, the question of piracy was not addressed in any way or even as much as raised by the states parties.

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10

Protecting Merchant Ships by Means of Vessel Protection Detachment (VPD) and Privately Contracted Armed Security Personnel (PCASP): The Italian Experience

Fabio Caffio* Piracy is, under international customary law, as reflected in the 1982 United Nations Conventions on the Law of the Sea (UNCLOS), an international crime since every nation has the right to seize pirate ships and to prosecute pirates. The legal foundation of this regime, which in the seventeenth century was attributed to the so called ‘Law of Nations’,1 lies in the ancient theory under which pirates are, as considered by the Roman jurist Cicero, ‘hostes humani generis’ (‘enemy of human mankind’).2 Accordingly, since pirates are not entitled to claim the protection of any nation, they are subject to the jurisdiction of all nations.3 Thus, a warship (or a state vessel) belonging to any country, in case it encounters a private foreign flagged ship engaged in piracy, can exercise enforcement powers under UNCLOS. In order to face the international crisis related to the piracy of the Horn of Africa (HOA), the United Nations Security Council (UNSC) approved several Resolutions – starting from the Resolution 1816 (2008) – in which the HOA piracy is defined as a “threat to the international peace and security”. Thus the UNSC authorized every nation, under Chapter VII * 1 2 3

Italian Navy Vice Admiral. On the historic aspects of piracy, see A.P. Rubin, Law of Piracy, NWC Press, Newport, RI, 1988, pp. 4 and 104. Marcus Tullius Cicero can be quoted as having said: “A pirate is not included in the list of lawful enemies, but is the common enemy of all; among pirates and other men there ought be neither mutual faith nor binding oath”. De Officiis, Book III, Ch. XXIX, p. 107. See, on the principle of international jurisdiction against pirates, the following dictum of the Permanent Court of International Justice, S.S. Lotus (France v. Turkey), 1927 PCIJ (Ser. A) No. 10 (September 7), available at : “Though statutes may provide for its punishment, it is an offence against the law of nations; and as the scene of the pirate’s operations in the high seas, which it is not the right or duty of any nation to police, he is denied the protection of the flag which he may carry, and is treated as an outlaw, as the enemy of mankind – hostis humani generis – whom any nation may in the interest of all capture and punish.” See also United States v. Smith (1820) under which “[a] pirate, under the law of nations, is an enemy of the human race; being the enemy of all, he is liable to be punished by all” quoted by ‘Draft Convention and Comment on Piracy’, prepared by the Research in International Law of Harvard School, with a Collection of Piracy Laws of Various Countries, in American Journal of International Law, Vol. 26, No. 4, 1932, pp. 743 et seq., p. 763.

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Fabio Caffio of the UN Charter , to “use all necessary means” to disrupt piracy and protect the free flow of trade in the international Sea Lanes of Communications (SLOCs). In this regard, to better understand the function of the above-mentioned Resolutions, it must be noted that UNCLOS considers the fight against piracy a responsibility attributed to no other entity than the states, assigning them also an obligation to cooperate with each other.4 However, even if it is true that all States have such a duty, nevertheless this duty is not an obligation concerning either fighting piracy5 or prosecuting captured pirates.6 In accordance with this legal framework, the UNSC, in its various Resolutions on piracy, called upon all states […] whose naval vessels and military aircraft operate on the high seas and airspace off the coast of Somalia to be vigilant to acts of piracy and armed robbery and, in this context, encourages, in particular, States interested in the use of commercial maritime routes off the coast of Somalia, to increase and coordinate their efforts to deter acts of piracy and armed robbery at sea in cooperation with the TFG.7 Thus, for the first time in history, the UNSC authorized a naval operation aiming to protect the high seas against the threat of piracy. In the past the UNSC approved, on the basis of Article 43 of the Charter, coercive measures of naval embargo against states that violated the international legality like Iraq (1991) or FRY (1992-1995).8 Many navies (including the Italian one) performed, on behalf of UNSC and upon its authority, this kind of peace-enforcing naval operation that authorized them to carry out maritime interdiction of merchant vessels suspected to be engaged in violation of the UNSCRs.9 4 5 6

7 8 9

According to Art. 100 UNCLOS related to the duty to cooperate in the repression of piracy, “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” On the faculty (not a duty) to prosecute pirates by the seizing state, see T. Treves, ‘Piracy, Law of the Sea and Use of Force: Developments of the Coasts of Somalia’, EJIL, Vol. 20, 2009, available at . Navies, except in cases where they have received from their Governments a specific mandate to fight piracy or their warships, act normally to protect nationals from an attack or to intervene in a Search and Rescue (SAR) situation. So navies are not obliged to fight pirates. In this regard the German Navy Commanders Handbook Concerning Legal Bases for the Operation of Naval Forces (2005 edn) clearly states, in para. 187: “However, the missing competences to exercise sovereignty over pirates do not alter the fact that defence against a pirate attack using all means required is admissible (self-defence with a view to proportionality) and that, as a matter of principle, the commander and the crew of a German warship or military aircraft are obliged to render assistance to a German or foreign vessel or aircraft in the event that it is attacked by pirates.” See para. 2 of the UNSCR 1816 (2008). See on the matter M. Plugh (Ed.), Maritime Security and Peacekeeping: A Framework for United Nations Operations, Manchester University Press, Manchester, 1994. Cf. D. Guyfoile, ‘Shipping Interdiction and the Law of the Sea’, Cambridge Studies in International and Comparative Law, Vol. 2, 2009, p. 44; R. McLaughlin, United Nations Naval Peace Operations in the Territorial Sea, Martinus Nijhoff, Leiden, 2009, pp. 134-140.

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10  Protecting Merchant Ships While several countries join all multinational counter-piracy operations such as EU NAVFOR ‘Atalanta’,10 NATO ‘Ocean Shield’11 and Combined Task Force 151 (CTF-151) – a Force inserted in a multinational naval partnership commanded by a U.S. Navy12 – Italy participates alternately in both Atalanta and Ocean Shield. Nevertheless, the practice of HOA anti-piracy naval operations shows that some other countries such as Japan, India and Russia intervened independently. Equally autonomous is China’s counter-piracy activity, even though it is open to collaboration with other public and private entities. The HOA counter-piracy operations, carried out by navies of various countries within the framework of UN peacekeeping activities,13 belong to the peacetime naval operations carried out on the basis of UNCLOS. Hence the same operations can be classified as ‘Military Operations other than War – (MOOTW)’, considering them to be constabulary activities14 regulated by UNCLOS but not governed by the Law of Armed Conflict (LOAC).15 Accordingly, an armed conflict does not exist between States with warships acting in OHA and the pirate groups: the suspect pirates, when captured, are not Prisoners of War (POW) but criminals. 10 The EU has launched European Naval Force Somalia – Operation ATALANTA (EU NAVFOR – ­ATALANTA) within the framework of the European Common Security and Defence Policy (CSDP) and in accordance with relevant UN Security Council Resolutions (UNSCR) and International Law. The Council of the EU has decided to extend the operation until December 2014. On the basis of its mandate regulated by EU Joint Action 2008/851/CFSP by UNSC mandate, EU NAVFOR – Operation ATALANTA conducts: (a) the protection of vessels of the World Food Programme (WFP) delivering food aid to displaced persons in Somalia; the protection of African Union Mission on Somalia (AMISOM) shipping; (b) the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast; (c) the protection of vulnerable shipping off the Somali coast on a case-by-case basis; the monitoring of fishing activities off the coast of Somalia . 11 NATO’s Operation Ocean Shield started on 17 August 2009 after the North Atlantic Council (NAC) approved the mission. Operation Ocean Shield, on the experience gained during NATOs’ previous counter-piracy mission, is characterized, in respect of other counter-piracy multinational operations, by a distinctive role based on a more comprehensive approach of building regional-state counter-piracy capacity. See . 12 See the information reported by the CTF web site . 13 McLaughlin 2009, p. 81. 14 Needless to say, the reason for the existence of Navies lies in the national defence at sea: this has been their principal role since the 1856 Paris Declaration on the Naval Warfare prohibited the s.c. ‘Privateering’, thus recognizing warships as the unique legitimate combatants at sea. Leaving aside some specific non-military functions assigned to them by domestic law, navies are also State organs entitled to policing the high seas in peacetime on the basis of customary international law, as codified by UNCLOS; reference can be made to the policing activities carried out by several navies. 15 See on the matter United Kingdom, The Use of Force in Counter-Piracy Operations, Discussion Paper presented at the meeting of the UN Contact Group on Piracy off the Coast of Somalia – Working Group No. 2 on Legal Issues, Copenhagen, 26-27 August 2009, according to which the legal framework in international law for using force in counter-piracy operations is derived from two sources: first, from the lex specialis of the law of the sea, which grants a limited positive right to government vessels to use reasonable force (not lethal as for an armed conflict) when necessary, and as a last resort, to enforce rights provided to them to stop, board, and arrest pirate ships and pirates. Secondly, and concurrently with the enforcement rights, is a general principle of law recognized by States that individuals can use reasonable force when necessary to protect life. This right is to be distinguished from the right of States to use force in individual or collective self-defence provided for by the UN Charter.

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Fabio Caffio As regards the maritime zones in which the counter-piracy operations can be conducted, it must be said, first, that the UNSC authorization to foreign warships to enter Somali territorial waters is limited, on the basis of the consent given by the TFG, only to Somali national maritime and air spaces.16 Consequently the UNSCRs did not change the general regime of UNCLOS that prohibits – without the consent of coastal States – warships carrying out constabulary activities in territorial waters of other countries or entering them from the high seas exercising the s.c. ‘reverse hot pursuit’.17 It is clear, however, that navies do not encounter limitations in performing their antipiracy activities on the high seas or in the Exclusive Economic Zones (EEZs) outside the territorial waters of the riparian countries of the so-called Indian Ocean’s High Risk Area (HRA) defined in 2011 by the International Transport Seafarers Federation (ITF).18 The EEZ is a maritime zone under functional sovereignty of the coastal state which is neither a high sea area nor a zone ‘outside the jurisdiction of any state’. Nevertheless, it is indisputable that the regime of high seas applies to anti-piracy activities carried out in an EEZ. Indeed, the same activities, even though they share a sui generis military nature (since they are carried out by military means but are not military per se), do not conflict with the functional rights that the coastal states are entitled to exercise ratione materiae in an EEZ. This interpretation is in accordance with the concept of residual right of the high seas that can be applied in EEZs in accordance with Article 58(2) of UNCLOS.19 On this matter a different approach is adopted by India, which claims control, in its EEZ, of the foreign military activities. First, India made a statement, in signing UNCLOS some years ago, under which it claims the right to regulate foreign military exercises or manoeuvres.20 But India has lately 16 See Treves 2009, p. 404. 17 Naval experience shows that the ‘pursuit’ (or better, the ‘shadowing’) of suspect vessels most frequently begins in international waters and ends when the target enters the territorial waters of a third State. This is particularly true for anti-piracy operations off the HoA, considering that this led the UNSC to authorize foreign warships to enter the Somali territorial waters, having also obtained the consent of the Somali TFG to do so (see F. Graziani, Il contrasto alla pirateria marittima nel diritto internazionale, Editoriale Scientifica, Napoli, 2011, p. 129). Otherwise, in such situations, the intervening State normally has the duty to request, on a case-by-case basis, the coastal state to authorize the s.c. reverse hot pursuít in its territorial waters. 18 The extension of the HRA, according to the document of the ITF named “Revision of the IBF High Risk Area in the Gulf of Aden and Indian Ocean agreed on 25 March 2011 London, UK” is the following: “The western border of the Zone runs from the coastline at the border of Djibouti and Somalia to position 11 48 N, 45 E; from 12 00 N, 45 E to Mayyun Island in the Bab El Mandeb Straits. The eastern border is set at 78 E, the southern border is set at 10 S and the Northern Border set at 26 N.” See . 19 K. Zou, ‘New Developments in the International Law of Piracy’, Chinese Journal of International Law, Vol. 8, 2009, para. 2. 20 Declaration made upon ratification (29 June 1995): “The Government of the Republic of India understands that the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone and on the continental shelf military exercises or manoeuvres, in particular those involving the use of weapons or explosives without the consent of the coastal State.” Available at .

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10  Protecting Merchant Ships adopted a further initiative that de facto limits the principle under which counter-piracy operations lawfully conducted in foreign EEZs do not violate the rights of exploitation of the coastal state, even in the event of an unfortunate incident; as a matter of fact, such activities ensure, in the interests of the international community, the legality of maritime trade and the free flow of commerce. On the contrary, India has addressed the hypothetical risk that legitimate fishing activities in the Indian EEZ may be confused with the activity of pirates, thus establishing specific regulations (not approved by IMO) by the Circular Notice Indian MS. No. 7 of 7 March 2012, where it states the following: […] On observing the approaching merchant vessel onto their fishing nets/ gear, it is common for the boats fishing to raise alarm and to ‘sail towards’ the merchant ship to attract attention so as to avoid damage to their Nets. Reports are being received where merchant ships have mistaken the fishing boats to be ‘pirate skiffs’ In one such recent incident off the coast of West coast of India, Kerala, a merchant ship fired on the fishermen, killing two of the fishermen. The ship’s security guards had assumed the innocent fishermen to be the pirates. In additions, there has been reports of another report of firing of warning shots on Indian fishermen.21 Despite the wide deployment of naval forces of various countries off the HOA and though some coastal states claim the illegal exclusive right of fighting piracy in their EEZ, the level of threat of piracy has continued, in past years, to grow exponentially. It is a fact that the HRA extends up to the Indian coasts.22 In 2011, pirates’ capabilities had increased to such an extent that they were able to carry out organized attacks within the geographical area close to the Seychelles.23 There are several reasons behind this phenomenon, but in the main, they are attributable to the vastness of the HRA (nearly 2 million squared nautical miles)24 and to related difficulties in patrolling it by naval assets. To solve this problem the international community 21 The text of this Circular is available at . 22 Following in-depth discussion among the parties of the International Bargaining Forum (IBF), a new agreement was reached for vessels/seafarers trading in the Gulf of Aden, Arabian Sea and North Indian Ocean regions (see ). Accordingly, The Joint Negotiating Group (JNG) and the International Transport Workers Federation (ITF) agreed to extend the geographical coverage of the IBF High Risk Area as follows:“the western border of the zone runs from the coastline at the border of Djibouti and Somalia to position 11 48 N, 45 E; from 12 00 N, 45 E to Mayyun Island in the Bab El Mandeb Straits; the eastern border is set at 78 E, the southern border is set at 10 S and the Northern Border set at 26 N”. 23 See J. Titahena & K. Sumser-Lupson, Privately Contracted Armed Security Personnel (Pcasp) on Ships in High Risk Areas Impacts, Concerns and Challenges, NATO Paper, 2012. 24 The problem was addressed at the international level by adopting a more effective operational coordination between all the intervening navies. Atalanta, for its part, adopted a more robust approach by countering mother ships.

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Fabio Caffio adopted a multi-pronged approach to counter piracy, and the shipping industry developed alternative tactics focused on self-protection practices to be employed by merchant vessels. First, the idea of arming crew members of merchant ships was examined, but this did not find favour among the ship workers both for legal (the status of merchant ships under international law)25 and professional reasons (the training of merchantmen does not include the use of weapons). Consequently, various alternative options were considered. A source of reference on this matter is the Industry “Best Management Practices for Protection Against Piracy Somalia based” (BMP4),26 which contains suggested planning and operational practices for ship Operators and masters of ships transiting the HRA. In this document the use of armed Private Maritime Security Contractors (PMSCs) on board merchant vessels is not excluded as an option available to individual ship operators according to their own voyage risk assessment and approval of respective Flag States. This advice does not constitute a recommendation or an endorsement of the general use of PMSCs, otherwise called privately contracted armed security personnel (PCASP), but only a recognition of their usefulness as a valuable addition to BMP4.27 Before the IMO approved the aforesaid documents, some ‘open register’28 countries such as Panama, Liberia and Marshall Islands signed the 2009 New York Declaration29 25 With the abolition of privateering by the 1856 Paris Declaration, using armed merchant vessels to operate offensively was prohibited. Arming merchant ships was allowed in 1907 by the VII Hague Convention only in cases of transformation of merchant ships into auxiliary warships. Nevertheless, during World Wars I and II some navies adopted the practice of arming merchant vessels with light arms for defensive purposes and not for attack. 26 Available at . This booklet suggests measures such as bridge protection by means of a ‘citadel’, or the employment of razor wire as physical barriers, water cannons, bullet pumps, steam hot waters. In case of attack, “Masters are encouraged to practice maneuvering their ships to establish which series of helm orders produce the most difficult sea conditions for pirate skiffs trying to attack, without causing a significant reduction in the ship’s speed”. 27 The employment on board the merchant vessels of PCASP was regulated by IMO. MSC 89 approved MSC.1/ Circ.14052 on “Interim Guidance to ship owners, ship operators, and shipmasters on the use of privately contracted armed security personnel on board ships in the HRA”, and MSC.1/Circ.14063 on “Interim Recommendations for Flag States regarding the use of privately contracted armed security personnel on board ships in the High Risk Area.” On 16 September 2011, IMO also approved the “Interim Recommendations for Port and Coastal States Regarding the Use of PCASP on board Ships in the HRA”. 28 In defining an ‘open register’ (otherwise called Flag of Convenience (FOC register)), the International Transport Workers’ Federation (ITF) considers as the most important factor whether the nationality of the shipowner is not the same as that of the flag. The ITF maintains a list of countries offering FOC facilities based on the following elements (the so-called ‘Rochdale Criteria’): the country allows non-citizens to own and control vessels; access to and transfer from the register is easy; taxes on shipping income are low or non-existent; the country of registration does not need the shipping tonnage for its own purposes but is keen to earn the tonnage fees; manning by non-nationals is freely permitted; the country lacks the power (or the willingness) to impose national or international regulations on its shipowners. However, ships registered in an FOC register that can demonstrate that they are genuinely owned in that country are not treated as FOCs. Equally, ships from countries not on the list will be treated as FOCs if the ITF receives information that they are beneficially owned in another country. 29 On 29 May 2009 Panama, Liberia, Marshall Islands and Bahamas approved in New York a Joint Declaration concerning ‘Commitment to Best Management Practices to Avoid, Deter or Delay Acts of Piracy’. The same declaration was later, on September 2009, open to accession of USA, UK, Japan, Singapore, Cyprus. The text of this Act is available at .

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10  Protecting Merchant Ships suggesting shipowners of the national flagged merchant vessels employ PCASP on board to protect their ships. Also, Norway applied the PCASP option extensively, regulating it by the Ship Safety and Security Act No. 09/2007 as amended in 2011. It must be noted, however, that in dealing with PCASP, the Industry BMP4 document clarifies that “the provision of Military Vessel Protection Detachments (VPDs) deployed to protect vulnerable shipping is the recommended option when considering armed guards.” Italy considered such a recommendation when it had to cope with the hijacking of four flagged ships over two years and faced the need to adequately protect national flagged ships in the HRA off the HOA. The fact is that Italy, which fully depends on marine commerce and transportation, has a great interest in protecting the free navigation of its merchant fleet (a controlled fleet of 15 million). The main route of Italian trade passes through the Strait of Bab el Mandeb, which connects the Red Sea with the Gulf of Aden (GOA). In this area the transits of Italian vessels amount to about 2,000 units (10% of total international transits). Not surprisingly, the Italian Navy was the first navy in the world to launch in the area of GOA in 2005, after a couple of attacks on Italian-flagged merchant vessels. The national operation was named ‘Mare Sicuro’ (Safe Sea) and was aimed at protecting Italian interests.30 Later, in 2008, Italy decided to support the UN action against piracy by naval assets. Since then the Italian Navy has been participating alternately, for an average period of six months, with one Naval Unit in EU NAVFOR ‘Atalanta’ and NATO ‘Ocean Shield’ operations.31 To deal with the escalation of pirate attacks against Italian flagged vessels in the enormous HRA, the Italian Navy planned, as an additional measure of direct military protection of nationals and their property at sea,32 the deployment of military marine units, named Nuclei Militari di Protezione (NMP), otherwise known in the terminology of BMP4 as Vessel Protection Detachments (VPD). Moreover, the use of VPD was provided by the EU in the Council Joint Action 2008/851/CFSP33 of 10 November 2008 on a European Union military operation (EUNAVFOR ‘Atalanta’) to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast.34 As a matter of 30 The Italian MOD, at the request of the Italian Ship Owners’ Confederation (Confitarma), authorized the deployment of the frigate Granatiere in the GOA. The Navy then thwarted, in the same area, an attempted pirate attack against the Italian ship Ievoli (March 2006). 31 Occasionally (as during the hijacking of Italian merchant vessels), the Italian Navy deployed further naval units under national command. 32 About this task of the Navy, we have to remember its longstanding activity of protection at sea of the Italian fishermen against the excessive and unlawful use of force exercised by the Patrolling Forces of Tunisia and Libya. 33 Available at . 34 See D. Helly, ‘Lessons From Atalanta and EU Counter-Piracy Policies’, EU ISS, Seminar Report, 2011, available at .

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Fabio Caffio fact, the mandate of Atalanta (Art. 2, lett. a) of this Action provides “protection to vessels chartered by the WFP, including by means of the presence on board those vessels of armed units of Atalanta, in particular when cruising in Somali territorial waters.” Further suggestions to adopt the NMP initiative came to Italy from France, which regulated their use in the Seychelles EEZ to protect the activity of the French-flagged fishing boats.35 In addition, the Netherlands expressed itself in favour of the VPD option .36 This international approach in favour of VPD was justified by the fact that UNCLOS gives States the exclusive right to use force at sea against pirates. On the other hand, the authorization of the UNSCRs related to piracy to use ‘all necessary means’ was considered to include the option of the use of military personnel on board the merchant ships for their direct protection from the threat of piracy. Thus, the Italian Navy’s proposal was approved by Parliamentary Law No. 130/201137 authorizing the Italian Ministry of Defence (MoD) to deploy on board national merchant vessels military personnel acting as State’s officials in the military chain of command, under rules of engagement (ROE).38 On this matter, Article 5, paragraphs 1-3, of the aforesaid law is clear in establishing that: 1. The Ministry of Defence, as a part of international counter-piracy efforts and in order to ensure the freedom of navigation of national merchant shipping, may sign with the Italian private owners associations and with other subjects with specific powers of representation of that category framework agreements for the protection of vessels flying the Italian flag in transit in international sea areas at risk of piracy – designated by the Ministry of Defence upon consultations with the Ministry of Foreign Affairs and the Ministry of Infrastructures and Transportations, taking into consideration periodic reports by the International Maritime Organization – by embarking, at the request and with burden on the owners, Military Protection Detachments (Nuclei Militari di Protezione – NMP) of the Italian Navy which may avail itself of personnel from other armed forces in order to fulfil the task. 35 See on the French practice of the s.c. ‘équipes de protection embarquées (EPE)’. ‘Lutte contre la piraterie maritime: une loi utile, une mission sans fin’, Senat, 18 February 2013, available at . 36 “The Dutch Government move towards a higher level of protection of its merchant fleet including, ‘if necessary’, the use of armed private security guards it cautioned that security guards should only be hired by the Government and should only perform their security duties as soldiers under the full authority of the Ministry of Defence. The report [of the Dutch Government] concluded that it was not desirable that ship owners privately hire armed private security guards, and that the option should only be considered ‘in case of special conditions’. The committee argued that, if the government used its own resources, or engages reservists, or hired armed private security guards who would temporarily be given military status; this would not constitute privatisation of security duties. By creating additional defence capacity in this way, no amendment of legislation and regulations would be required.” See Titahena & Sumser-Lupson 2012. 37 The text of this law, in the part related to the use of NMP, is also published in the UN Secretary General Report (S/2012/177). 38 The employment of NMP also became a ‘core task’ of the Italian Military Navy in accordance with Art. 111 of the ‘Armed Forces Code’ (D.Lgs. 66/2010) related to the institutional missions of the Armed Forces.

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10  Protecting Merchant Ships 2. Military personnel which is part of the Military Protection Detachment referred under comma 1, operates in compliance to the directives and the rules of engagement issued by the Ministry of Defence. The Commandant of each team, which has the exclusive responsibility for the military contrast to piracy, and the subordinate personnel are designated respectively as law enforcement officer and law enforcement auxiliaries in respect of the crimes listed in Articles 1135 and 1136 of the Navigation Code and all those crimes linked to the former ones under the provision of Article 12 of the Criminal Procedure Code […]. 3. The owner of the vessel under protection referred to in comma 1, shall refund the costs, including the cost for the personnel and the cost of operations as defined in the agreement referred to in comma 1, by the income chapter of the State budget in order to be reallocated to the estimates of expenditure of the Ministry of Defence […]. As far as the particular funding regime established by placing the cost of the military protection to the shipowners requesting the service, it must be said that this gave rise to a wrong perception of the use of NMP as private security guards. But, as has been noted,“The fact that ship owners are called up to contribute economically doesn’t affect the intrinsically public and sovereign nature of the function.”39 Furthermore, the purpose of deploying Military Personnel on board Italian Flagged Vessels was to maintain the State monopole for the use of force on the seas and only where, due to personnel shortages, Military Protection is not available, ship owners will be allowed to embark private guard.40 Consequently, there is no doubt that the NMP personnel, being law officials exercising public function under Italian legislation, have title to functional immunity in respect of the jurisdiction of other countries.41 39 On the matter see Cf. V. Eboli & J.P. Pierini, ‘The “Enrica Lexie Case” and the Limits of the Extraterritorial Jurisdiction of India’, Centro di documentazione europea – Università di Catania – Online Working Paper 2012/n. 39, March 2012, p. 6 40 Cf. Eboli & Pierini 2012, 26; see also B. van Ginkel & F. van der Putten & W. Molenaar, ‘State or Private Protection against Maritime Piracy? A Dutch Perspective’, Clingendael Institut Reports, 2013. Available at: . 41 It is worth reporting what has been said in this regard by Eboli & Pierini 2012: “The nature of the tasks discharged by the components of the Military Protection Detachment were embarked on board the MV Enrica Lexie has already been described. The said Military Protection Detachment is by itself a ‘structured’ ‘Military Force’ of a State engaged abroad in a Military Operations aimed at countering the international threat posed by piracy and armed robbery which has been recognized since 2008 by the United Nations Security Council as a threat to international peace and security and dealt by under Chapter VII of the United Nations Charter. “After the incident the vessel carrying the said military force has been ‘lured’ in order to have it entering an Indian Port and the circumstance has been praised as a ‘smart move’. There are reasons to believe, based on the prior reporting of the incident which was extended to Indian authorities, that the vessel was cheated with the knowledge of the fact that on board there a military force of Italy. The invitation to enter the Port of Kochi in order to have the military force and the crew of the vessel cooperating in the identification of apprehended pirates, an international obligation under article 100 of the UNCLOS, tantamount to an invitation to a foreign military force to enter the territory of India while in transit and for a short stay. “Despite the ‘vanishing’ character of the concept of ‘absolute immunity’ in current international practice, if there is a situation in which ‘absolute immunity’ has still a strong rationale, then it is the situation in which

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Fabio Caffio On the other hand, the Italian solution to allocate the cost of military protection to the shipowners requesting the service was considered cost-effective by the Parliament of the United Kingdom, when, on the examination of the matter, it expressed the opinion that Vessel protection detachments are an attractive option, but we acknowledge that resources are extremely limited at present. We conclude that the Government should engage with the shipping industry to explore options for the industry to pay for vessel protection detachments of British naval or military personnel on board commercial shipping.42 To strengthen the direct protection of merchant shipping, the said Italian Act 131/2011 also authorized the use of PCASP (named as ‘Guardie giurate’) on board the Italianflagged merchant ships navigating in the HRA, under the condition that the shipowner had requested, in advance, the employment of NMP and that the Italian MoD had declared it to be unable to perform the requested service.43 Worthy of mention is the fact that

a military forces engaged in an operations in respect of a context amounting, like in the case of international piracy, to a recognized threat to international peace and security has been invited within the territory of a Coastal State. “A military force in transit, even if small in dimension, is an organized entity with a military structure and cannot be ‘diverted’ from its function, by the territorial sovereign (whose territorial jurisdiction they have entered with its consent), nor a military force can legitimately be ‘beheaded’ and neutralized with the purpose of exercising the territorial jurisdiction. The principle is expressed by the US Supreme Court in The Schooner Exchange vs. McFaddon in 1821. The principle has been subsequently recalled by in several decisions of U.S. Courts and distinguished by the Privy Council which it was held that ‘an express license to enter foreign territory would not be presumed”, and by the Supreme Court of India …”. 42 See Foreign Affairs Committee, ‘Piracy Off the Coast of Somalia’, 5 January 2012, available at . 43 Art. 5, paras. 4 and 5 of the Italian Act 131/2011 regulates the use of Italian PCASP as follows: “4. In the context of international efforts for counter-piracy and the participation of military personnel at the operations referred to in article 4, comma 13 of this decree, and also in conjunction with the European Union Joint Action 2008/851/PESC of the Council, of the 10th of November 2008, and awaiting the approval of the guidelines of the Maritime Safety Committee (MSC) of the United Nations within the International Maritime Organization (IMO), it is authorized – whereas the detachments referred to in comma 1, are not established – and in any case within the limits established in comma 5, 5-bis, 5-ter, the employment of ‘sworn guards’, authorized under art. 133 and 134 of the Unified law text on Public Security, approved with Royal Decree 18 of June 1931, n. 773, on board merchant ships flagged in Italy transiting in international waters referred to in comma 1, for the protection of the said ships”. “5. The employment referred to under comma 4 is allowed exclusively on board the ship predisposed for the defence from act of piracy, through the implementation of at least one of the means mentioned in the ‘best management practices’ for the self-protection of shipping developed by IMO, and authorized to detain arms under comma 5 bis, through sworn guards to be recruited preferably among those having military experience, eventually as voluntaries, and have attended one of the theory and practical courses mentioned in the implementing of the Ministry of Interior 15 September 2009, n. 154, adopted in order to implement article 18 of the law decree 27 July 2005, n. 144, converted with modifications by the law 31 July 2005, n. 155”.“5 bis. The personnel referred to in comma 4 while fulfilling their service in accordance with comma 5 and within the limits of international waters may use the weapons which are part of the equipment of the ship, upon prior authorization by the Ministry of Interior to the Ship owner under art. 28 of the unified text for public security approved with Royal decree 18 June 1931, n. 773. Authorization is granted by the Ministry of Interior heard the Ministry of Defence and the Ministry of Infrastructure and Transportation, for the purchase of arms, transportation and cession of arms in fiduciary trust to the personnel mentioned under comma 4.”

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10  Protecting Merchant Ships the legislative umbrella for the use of ‘Guardie giurate’ falls upon the Italian public security legislation (R.D. 18 June 1931, No. 773), which also regulates the employment of private armed personnel in service of protection of goods. Differences, exist, however, between the service of NMP and that of the ‘Guardie giurate’. Both categories are not authorized to perform counter-piracy activities; but the former is endowed with public functions and may use force in self-defence according to a military modus operandi, while the latter is allowed to make more limited use of force in strict self-defence.44 A decree of the Ministry of Interiors, agreed with the Ministry of Defence and the Ministry of Infrastructures and Transportations, approved on 28 December 2012, detailed the measures for the implementation of the Law 131/2011, including the purchase, transport and fiduciary cession of the arms detained on board, their ammunition, the quantity as well as the relationship between the embarked personnel and the Masters. No country other than Italy regulated the use of both the VPD and the PCASP in organic and comprehensive form on the basis of an approach that privileges the role of the State in maintaining public order at sea protecting also nationals. The Italian initiative represents, in conclusion, a model for both the international institutions and the industry that will be faced in the future with the need to adopt legislative or soft law instruments such as guidelines or a code of conduct for self-regulation to avoid the “present state of anarchy at sea.”45

44 On the matter see the excellent commentary to the Italian Law 131/2011 written by N. Ronzitti, ‘Un passo avanti per la tutela delle navi italiane ma troppa cautela nella legge di conversione’, Guida al Diritto Il Sole 24 ore, No. 43, 29 October 2011, p. 58. 45 Cf. N. Ronzitti, ‘The Use of Private Contractors in the Fight Against Piracy: Policy Options’, in F. Francioni & N. Ronzitti (Eds.), War by Contract: Human Rights, Humanitarian Law, and Private Contractors, Oxford University Press, Oxford, 2011, p. 51.

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part III Safety of Navigation

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11

Port State Control

Elda Turco Bulgherini* 11.1 Maritime Safety and Flag State In the traditional structure of international maritime relations, it has always been for the flag state to check the safety of ships,1 understood in the sense of their capacity to face the intrinsic risks of navigation (rendered in the English language by the term ‘safety’),2 while the coastal state and port state have had comparatively little say in checking the safety of ships.3 The centrality of the power of the flag state was also reiterated in the Montego Bay Convention of 10 December 1982,4 which sets out the relevant principle in Articles 94 * 1 2

3

4

Full Professor of Navigation Law, Tor Vergata University of Rome. On the role of the flag state and the context in which it operates, see, in general, S. Zunarelli & M.M. Comenale Pinto, Manuale di diritto della navigazione e dei trasporti, Vol. I, CEDAM, Padua, 2009, p. 86. As opposed to protection against external interference with navigation, rendered in the English language by the term ‘security’: on this subject see U. Leanza, ‘La sicurezza marittima nell’ordinamento internazionale e nell’ordinamento italiano’, in U. Leanza (Ed.), Nuovi saggi di diritto del mare, Giappichelli, Turin, 1988, pp. 277 et seq.; M. Grigoli, Il problema della sicurezza nella sfera nautica, Vols. I and II, Giuffrè, Milan, 1989 and 1990; E. Turco Bulgherini, ‘Sicurezza della navigazione’, Enciclopedia del diritto, Vol. XLII, 1990, p. 461; M.L. Corbino, ‘Sicurezza della navigazione marittima’, Digesto delle Discipline privatistiche – Sezione commerciale, Vol. XIII, 1996, p. 23; M. Riccomagno, ‘Safety and Environment’, Diritto marittimo, Vol. 103, 2001, pp. 182 et seq.; P. Viglietta & E. Papi, ‘Safety e security: aspetti evolutivi della sicurezza marittima’, Diritto dei trasporti, Vol. I, 2005, pp. 117 et seq.; G. Vermiglio, ‘Sicurezza: safety, security e sviluppo sostenibile’, in R. Tranquilli-Leali & E.G. Rosafio (Eds.), Sicurezza, navigazione e trasporto, Giuffrè, Milan, 2008, pp. 145 et seq.; G. Camarda, ‘La sicurezza nel diritto della navigazione: molteplicità di norme ed unicità di approccio sistematico’, Diritto dei trasporti, Vol. II, 2010, p. 262; F. Pellegrino, ‘I nuovi orizzonti della sicurezza marittima’, in Scritti in onore di F. Berlingieri, Vol. II, special issue, Diritto marittimo, 2010, p. 781. On the relationship between command and safety of the ship, see U. La Torre, Comando e comandante nell’esercizio della navigazione, Edizioni Scientifiche Italiane, Naples, 1997, p. 20. On the rise of exceptions, especially as regards the powers of coastal states after the accident involving the Liberian-registered Torrey Canyon oil tanker in 1967, which spurred the states into adopting the Brussels Convention of 29 November 1969 relating to intervention on the high seas (so-called Intervention Convention): W. Pentassuglia, ‘L’intervento antinquinamento su navi straniere in alto mare’, Rivista giuridica dell’ambiente, 1993, pp. 135 et seq.; V. Bou Franch, ‘Freedom of Navigation Versus Pollution by Oil From Vessels: The Point of View of Coastal States’, in R. Casado Raigón (Ed.), L’Europe et la mer. Pêche, navigationet environnement marin, Bruylant, Brussels, 2005, p. 253. Turco Bulgherini 1990, p. 482; D. Gaeta, ‘Nazionalità della nave e dell’aeromobile’, Enciclopedia del diritto, Vol. XXVII, 1977, pp. 764, 766. On the same wavelength is the European Court of Justice in Case C-379/02, 14 July 1994, Diritto dei trasporti, 1995, p. 485, with note by M. Comenale Pinto, ‘Inquinamento del mare fra disciplina nazionale, convenzioni internazionalie diritto comunitario’, Diritto dei trasporti, 1995, p. 493: the question concerned the stricter rules that Italian law imposed on ships flying the Italian flag compared with those flying a foreign flag pursuant to Law No. 969 of 31 December 1982, based on a

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Elda Turco Bulgherini and 217.5 However, in Article 218.1, that same Convention entrusts a non-secondary role to the port state because the latter may undertake investigations and institute proceedings against a vessel that is voluntarily within a port or at an offshore terminal of that state “in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone (EEZ)” of that state. The subsequent paragraphs 2, 3, 4 of Article 218 of United Nations Convention on the Law of the Sea (UNCLOS) enshrine the principle of collaboration by the port state in respect of discharges in the sea involving waters under the jurisdiction of another state. It is also worth stressing, even though limited to “generally accepted international rules or standards,” that the Montego Bay Convention (Art. 21.2) does not totally rule out the possibility for the coastal state to make the right of innocent passage of a ship conditional on compliance with standards for design, construction, manning or equipment of ships. 11.2 Upsetting the Traditional Balance One of the factors that called into question one of the traditional balances that characterized the principle of freedom of navigation6 was the occurrence of a series of catastrophes



5



6

provision that has now been impliedly repealed following ratification of the MARPOL 1973/1978 Convention. In case law, there is the controversial Decision No. 8519 of the Italian Supreme Court (Criminal Division, Section I) of 24 June to 22 July 1998, in Diritto dei trasporti, 1999, p. 613, with a critical note by E.G. Rosafio, ‘Sulla successione di leggi nel tempo: legge sulla difesa del mare e Convenzione Marpol’. See also the points made (in relation to a judgment on the merits) by T. Scovazzi, ‘Inquinamento marittimo da navi. L’illuminazione in un contesto indigesto’, Rivista giuridica dell’ambiente, Vol. 12, 1997, p. 750. There has, however, been a retrenchment in the powers of the flag state “from a qualitative and quantitative standpoint” to the extent that “sovereignty becomes solely a chiusura di comodo of the ordinamento,” to quote W. D’Alessio, ‘I percorsi della sicurezza in mare: dalla salvaguardia della vita umana alla difesa dai rischi di terrorismo internazionale’, in Studi in onore di Umberto Leanza, Editoriale Scientifica, Naples, 2008, pp. 1605, 1611. In particular, Art. 94 of that Convention, concerning “Duties of the Flag State,” provides as follows: “Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” Art. 217, concerning the application of the international and national rules aimed at preventing, reducing and controlling pollution, binds the states to take measures to ensure that vessels flying their flag or of their registry comply with the requirements of the international rules and standards established through the competent international organization or general diplomatic conference. The state must also act to effectively apply those rules and standards irrespective of where the violation occurs. The Italian translation of the Montego Bay Convention to which reference must be made is that published in OJEC 1998 L 179/60. Moreover, it should be noted that as regards the effective application of the instruments adopted by the IMO that body plays no direct role in checking the extent to which states parties actually comply with the IMO Conventions after ratification. The truth is that application of the rules and checking compliance therewith is a matter for the states themselves, firstly the flag state and, subsequently, other states: on this aspect, see P. Celle, ‘Il “Port State Control” nel diritto internazionale’, Diritto marittimo, Vol. 109, 2007, pp. 712-713. In this respect, refer to G. Romanelli & M.M. Comenale Pinto, ‘Trasporto, turismo e sostenibilità ambientale’, Diritto dei trasporti, Vol. III. 2000, p. 659 (concerning the implications for the carriage by sea of hazardous substances, ivi, pp. 672 et seq.). On this subject see also F. Pellegrino, ‘Lo sviluppo sostenibile del Mediterraneo: profili di diritto internazionale e comunitario’, in Studi in onore di Umberto Leanza, Editoriale Scientifica, Naples, 2008, pp. 1762 et seq.

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11  Port State Control that involved ships transporting substances harmful to the ecosystem and dangerous for ship crews. The first important accident dates back to March 1967, when the Liberian oil tanker Torrey Canyon ran aground off the coast of Cornwall,7 spilling over 100,000 tons of crude oil before being bombed by RAF aircraft. Of no less importance, just to cite the most notorious cases, were the Erika8 and Prestige9 disasters, not to mention the sinking of the Amoco Cadiz10 and the Exxon Valdez,11 and the reaction that the latter two ships provoked in the United States.12 A first particularly important signal of the evolution of maritime law from the standpoint of the erosion of the principle of freedom of navigation can be found in the Brussels Convention on Civil Liability for Oil Pollution Damage,13 which introduced a ban on entry into the ports and offshore terminals of the states parties for ships transporting crude 7

8

9

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11 12 13

That accident (whose importance has already been mentioned in note 3 above) led to a turning point in the international community’s attitude towards the damage that could be caused by the maritime transportation of oil in bulk in the event of an accident to the ship. The literature on the topic is vast: see, amongst many, J.P. Quéneudec, ‘L’incidence de l’affaire du Torrey Canyon sur le droit de la mer’, Annuaire français de droit international, Vol. 14, No. 14, 1968, p. 701; E. du Pontavice, La pollution des mers par les hidrocarbures, Librairie générale de droit et de jurisprudence, Paris, 1968. It sank at Punta di Penmarc’h (Finistére, France) on 12 December 1999, spilling 13,000 tons of fuel oil into the sea that ruined 400 km of coastline and caused enormous damage to the ecosystem in a very important tourist area. The ship, flying the Maltese flag, was owned by Italian interests and had been certified by RINA. Apart from the court proceedings that followed, the case spurred the then European Community to review its policy on maritime safety, which led to the subsequent adoption of the three Erika ‘packages’: for a reconstruction of events, see F.M. Torresi, ‘Il pacchetto “Erika III”: la UE rafforza la tutela del patrimonio marino dall’inquinamento’, Diritto marittimo, Vols. 112, 2010, p. 300. On the initial context and the policy followed by the then European Community, see J.M. Martín Osante, ‘La normativa comunitaria en materia de seguridad marítima. Sociedades de clasificación y transporte de petróleo’, Anuario de Derecho Marítimo, Vol. XVIII, 2002, pp. 204 et seq. See also A. Marino, ‘L’Agenzia europea per la sicurezza marittima: struttura e competenze’, in U. La Torre et al. (Eds.), Studi in memoria di Elio Fanara, Vol. I, Giuffrè, Milan, 2007, p. 299. In general, see also F. Pellegrino, Sviluppo sostenibile di trasporti marittimi comunitari, Giuffrè, Milan, 2010. That ship sank off the coast of Galicia (Spain) on 13 November 2002 with 77,000 tons of heavy fuel oil and caused incalculable damage to the fishing and tourism industries, forced for weeks to face up to an oil slick of devastating proportions. The area concerned has sadly been dubbed ‘death coast’ owing to the number of accidents that it has witnessed: see J. Juste Ruíz, ‘El accidente del Prestige y el derecho internacional: de laprevención fallida a la reparación insuficiente’, Revista Española de Derecho Internacional, Vol. 55, 2003, pp. 15-42. That ship, flying the Liberian flag, ran aground owing to a problem with the rudder on 16 March 1978 about 10 miles off the Brittany coast spilling over 230,000 tons of crude oil into the sea. Legal action seeking damages was filed before the United States courts in an attempt to circumvent the limits on damages laid down in the 1969 Liability Convention: see W. Pfennigstorf, ‘Amoco Cadiz davanti al giudice: 10 anni e nulla di concluso’, Assicurazioni, Vol. I, 1988, p. 331, and T. Scovazzi, ‘La sentenza d’appello sul caso Amoco Cadiz’, Rivista giuridica dell’ambiente, Vol. 7, 1992, p. 443. The appeal judgment (United States Court of Appeals for the Seventh Circuit, 24 January 1992) can be found in Diritto marittimo, Vol. 95, 1993, pp. 1160 et seq. That ship sank in Prince William Sound (Alaska) on 24 March 1989, spilling over 40,000 tons of crude oil into the sea. Culminating in the passing of the Oil Pollution Act 1990. The Liability Convention of 29 November 1969 was incorporated into Italian law by Law No. 186/1977 and subsequently amended by numerous protocols, including the 1992 London Protocol, which entered into force on 30 May 1996.

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Elda Turco Bulgherini oil in bulk devoid of a certificate from the flag state attesting insurance or other form of suitable financial security to cover pollution damage as defined by the Convention itself.14 As preventative measures, leaving aside any consideration regarding their (not always certain) effectiveness in practice, one can also cite the ban on entry into ports of singlehull tanker ships introduced by a 1992 amendment to the MARPOL 73/78 Convention, following a unilateral ban to the same effect imposed by the United States under its OPA 1990.15 The example was followed by the then European Community through Regulation (EC) No. 417/2002 of the European Parliament and of the Council of 18 February 2002 on the accelerated phasing-in of double-hull or equivalent design requirements for singlehull oil tankers, amended by Regulation (EC) No. 1726/2003 of the European Parliament and of the Council of 22 July 2003.16 The context in which state powers in the matter of maritime safety are distributed has profoundly changed compared with the past owing to a series of factors that have affected the whole framework of the interests involved, commencing first and foremost from the spread of so-called ‘flags of convenience’. That spread has been favoured, moreover, by the unsuccessful attempt to adopt a set of international rules on the conditions for registering ships. In fact, the minimum number of ratifications necessary for the entry into force of the Geneva Convention of 7 February 1986 on Conditions for Registration of Ships17 was never reached. The application of that convention would have allowed one to specify the content of “genuine link,”18 laid down 14 In this regard, see M.M. Comenale Pinto, La responsabilità per inquinamento da idrocarburi nel sistema della C.L.C. 1969, CEDAM, Padua, 1993, p. 44. 15 That solution was not without problems, however, in particular, for the shipowners who were not able to amortize the costs incurred for the purchase of single-hull ships still in service: for this aspect and the context, see P. Balanon, ‘Oil Pollution Act of 1990’s Double Hull Requirement Collides With the Takings Clause: Maritrans v. United States’, Tulane Maritime Law Journal, Vol. 28, 2004, p. 555. Regarding the doubts expressed as to the efficacy of the measure on the basis of the statistics compiled by the United States coast guard, see K.W. Kektar, ‘The Oil Pollution Act of 1990: A Decade Later’, Spill Science & Technology Bulletin, Vol. 7, 2002, p. 45 (see, in particular, p. 49, Table 2). 16 On this matter see F. Berlingieri, ‘Accelerazione del programma di phasing out delle navi cisterna a scafo singolo e limitazioni all’accesso ai porti delle navi a scafo singolo che trasportano idrocarburi pesanti’, Diritto marittimo, Vol. 106, 2004, p. 1186; M.M. Comenale Pinto, ‘Contro il rischio da inquinamento ambientale da idrocarburi: il doppio scafo’, Giustizia civile – Repertorio generale annuale di legislazione, bibliografia, giurisprudenza, Vol. II, 2005, p. 161. 17 See, in general, S. Zunarelli, ‘La Convenzione internazionale sulle condizioni per la registrazione delle navi’, Diritto marittimo,vol. 88, 1986, p. 853. 18 The concept of the nationality of the ship essentially consists of a genuine link between the state and the ship. In the international legal system that link relates to the regulation of the ship by the flag state in terms of the latter’s ability to check those who operate on board the vessel. In fact, the international legal system lets a state freely decide on the requirements to be met for registering a ship in its register, but once registration occurs, the flag state must be capable of exercising effective control over the persons on the ship. For more on the notion of ‘genuine link’ (see, in general, A. Masutti, ‘Genuine link e bandiere ombra’, in A. Antonini (Ed.), Trattato breve di diritto marittimo, Vol. I, Giuffrè, Milan, 2007, p. 438) and the context in which it arose, based on custom and Art. 5 of the Geneva Convention on the High Seas of 29 April 1958 (and associated problems of interpretation), see G. Righetti, ‘Nazionalità della nave’, Digesto delle Discipline privatistiche – Sezione commerciale, Vol. X, 1994, pp. 233, 242; D. Gaeta, ‘La nuova disciplina dei requisiti di

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11  Port State Control in Article 91.1 of the 1982 Montego Bay Convention as a criterion for linking a ship and its flag state (the definition of which was left up to domestic law, which has produced not very satisfactory solutions).19 The problem with registrations of convenience20 – that continue to be a marked feature of current maritime traffic – is that they give rise to significant risks for the safety of navigation nazionalità della nave’, Vita notarile, 1978, pp. 338, 349. See also ITLOS judgment of 1 July 1999, The M/V ‘Saiga’ (No. 2) case (Saint Vincent and the Grenadines v. Guinea), § 83, Rivista di diritto internazionale, 2000, pp. 508, 521, in which the Tribunal, relying on an analysis of Art. 94 of the Montego Bay Convention, held that “the purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference of which the validity of the registration of ships in a flag State may be challenged by other States.” On that case, see L. Schiano di Pepe, ‘La questione della nazionalità delle navi dinanzi al Tribunale internazionale per il diritto del mare’, Rivista di diritto internazionale, Vol. 85, No. 2, 2002, p. 329. 19 Moreover, it is interesting to observe how at the same time corresponding problems are arising in the aviation field owing to the gradual contemporaneous loosening of the traditional requisites for determining the nationality of aircraft and airlines laid down in aviation legislation and bilateral air traffic agreements: see, in this regard, M.M. Comenale Pinto, ‘Gli open sky nella prospettiva della Corte di giustizia Ce (note to ECJ judgment of 5 November 2002, Case C-466/98)’, Diritto del turismo, Vol. I, No. 1, 2003, pp. 51, 60 (a decision on the bilateral air traffic agreements concluded between EU Member States and the United States held to be unlawful also because of the inclusion of ‘substantial ownership’ clauses. With reference to a failure to respect obligations arising from case law in this area, see ECJ judgment of 24 April 2007, Case C-523/04, Diritto dei trasporti, Vol. I, 2008, p. 133, with note by M. Brignardello, ‘Sentenze open skies: seconda ed ultima puntata?’, Vol. I, 2008, p. 140). On the nationality requisites in question, see M.M. Comenale Pinto, ‘Substantial Ownership and Control of International Airlines’, in Rapports Nationaux Italiens au XVIeme Congrès Internationalde Droit Comparé (Brisbane, 2002), Giuffrè, Milan, 2002, p. 541. It should be stressed that here too the relaxation of nationality requisites has gone hand in hand with greater controls by the airport state and cooperation among aviation authorities: important in this regard were Reg. (EC) 2111/2005 of 14 December 2005 and Reg. (EC) 474 of 22 March 2006 (about which see, in general, B. Franchi, ‘La tutela del passeggero aereo nel Regolamento CE 2111/2005’, Diritto del turismo, Vol. 4, 2006, p. 213). And a tendency to broaden the sphere of who can carry out safety checks can certainly be perceived in ICAO Doc. 9859, Safety Management Manual (SMM), the first edition of which dates back to 2006. Also worth noting is a debatable trend in case law to afford the airport state a role in checking the operating safety of aircraft that goes beyond the above-mentioned developments, basing that role on the criminal liability of aviation authorities (for failure to exercise powers enjoyed in their capacity as authorities): see E.G. Rosafio, ‘Sui poteri del direttore di aeroporto, degli addetti al traffico aereo e del gestore aeroportuale nei confronti di un aeromobile straniero (note to Italian Supreme Court (Criminal Division) judgment No. 1353 of 14 November 2003)’, Diritto marittimo, Vol. 106, 2004, p. 153. 20 By that expression is meant registration in the registers of states who, by not exercising effective public control, permit shipowners to escape the tax, social security and safety rules applicable in their country of origin with an ensuing reduction in operating costs but a notable increase in risks for crews and the environment: F. Lauria, ‘Bandiere ombra e situazioni giuridiche di comodo’, Trasporti, Vol. 11, 1977, pp. 83, 88 et seq. On this subject, see U. Leanza, ‘Sulla condizione giuridica delle navi private nel diritto internazionale’, Rivista, Vol. I, 1964, p. 154; Ibid., ‘Le bandiere ombra: diritto interno e diritto internazionale’, in Saggi di diritto internazionale della navigazione, Giannini, Naples, 1979, p. 225; S. Zunarelli, ‘Le bandiere di convenienza e l’evolversi dei principi di libertà di navigazione’, Diritto marittimo, Vol. 82, 1980, p. 403; Ibid., ‘Le bandiere di convenienza ed il progetto Unctad sullecondizioni di immatricolazionedelle navi’, Studi marittimi, Vol. 27, 1986, p. 65; G. Romanelli, ‘Bandiere di convenienza e progetto di immatricolazione delle navi’, Diritto marittimo, Vol. 86, 1984, p. 25; T.L. McDorman, ‘Global Ocean Governance and International Adjucative Dispute Resolution’, Ocean and Coastal Management, Vol. XLIII, 2000, p. 259; C. Montebello, ‘Le bandiere di convenienza, sistemi di registrazione “alternativi” e Port State Control’, Trasporti, Vol. 85, 2001, p. 149; M. Fornari, Il regime giuridico degli stretti utilizzati per la navigazione internazionale, Giuffrè, Milan, 2010, pp. 75 et seq.

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Elda Turco Bulgherini and the environment.21 In these situations, there is a loosening of the genuine link between ship and state (laid down by Art. 91 of the 1982 Montego Bay Convention) that obliges the flag state to effectively exercise jurisdiction over the ship.22 However, the dogma that only flag states may check the safety of a ship has been significantly eroded and with it the principle of freedom of access to maritime ports laid down in general terms in the Geneva Convention of 9 December 1923 on the International Regime of Maritime Ports.23 Within that framework a clear need to strengthen port state control (PSC) has emerged. Going forward, there is also a need to adopt suitable measures to reinforce and harmonize the currently applicable national and international rules. PSC consists of the power to inspect foreign ships in national ports in order to establish whether they comply with the international rules on safety at sea, the marine environment and living and working conditions on board.24 The use of substandard ships from a safety standpoint25 very often, in effect (although not necessarily), corresponds to navigation under a flag of convenience. In addition, there is a trend towards the fragmentation of the large fleets involved in the transport of hazardous goods (especially oil in bulk) with an ensuing increase in traffic by operators with just one ship to their 21 See, in general, G. Camarda, ‘Misure preventive e di soccorso in tema d’inquinamento del mare e sicurezza della navigazione’, Rivista giuridica dell’ambiente, No. 6, 2003, p. 1092. As regards, in particular, the possible implications of damages for environmental harm, see C. De Ghislanzoni Cardoli, ‘Navi battenti bandiera ombra. Il problema del risarcimento perdanni causati all’ambiente marino’, Diritto dell’ economia, Vol. I, 2005, p. 69. Among legal writers, for other aspects, see G. Romanelli, ‘Problemi giuridici della difesa del mare’, Diritto dei trasporti, Vol. II, 1988, pp. 73, 78; U. La Torre, ‘Salvataggio di nave e tutela dell’ambiente’, Diritto dei trasporti, 2000, pp. 691, 704 et seq., under note no. 29. 22 The states of flags of convenience have neither the necessary/sufficient power nor the bureaucratic wherewithal to enforce international conventions and domestic laws on safety. In addition, very often they do not actually have the will or desire to check shipping companies: see Leanza 1979, p. 227. 23 For an overview of that convention, see A. Lefebvre d’Ovidio, G. Pescatore & L. Tullio, Manuale di diritto della navigazione, XII edn, Giuffrè, Milan, 2011, p. 182. For an analysis of the question from a domestic law standpoint, see D. Gaeta, ‘La condizione giuridica delle navi estere nei porti italiani’, Diritto marittimo, Vol. 81, 1979, p. 363. 24 For more, see G.C. Kasoulides, Port State Control and Jurisdiction: Evolution of the Port State Regime, Martinus Nijhoff Publishers, Boston, 1993; A. Rosas, ‘Port State Jurisdiction and Control: Recent Developments’, in H. Tiberg, P. Wetterstein & A. Beijer (Eds.), Essays in Honour of Hugo Tiberg, Juristförlaget, Stockholm, 1996, pp. 541 et seq.; P. Janssen, ‘ISM and Port State Control’, Diritto europeo dei trasporti, 1999, pp. 51 et seq.; Y. Tassel, ‘Le controle des navires par l’Etat du port: régime et conséquences commerciales (droit français et droit anglais)’, Annuaire du droit de la mer, vol. 14, 1999, pp. 237 et seq.; H. Hoppe, ‘Port State Control. An Update of IMO’s Work’, IMO Bullettin, 2000, pp. 1 et seq.; Z.O. Ozcayir, Port State Control, Lloyd’s of London Press, London, 2001; E. Sicurezza, ‘I poteri dello Stato del porto nei confronti delle navi mercantili straniere’, in Inquinamento del mare e sicurezza della navigazione, cit., 37; Celle 2007, pp. 712 et seq.; H.S. Bang, ‘Is Port State Control an Effective Means to Combat Vessel Source Pollution? An Empirical Survey of the Practical Exercise by Port States of Their Powers of Control’, International Journal of Marine and Coastal Law, Vol. XXIII, 2008, pp. 715 et seq.; C. Montebello, ‘Alcune considerazioni sullo strumento del Port State Control tra safety e security’, in U. La Torre et al. (Eds.), Studi in memoria di Elio Fanara, Vol. II, Giuffrè, Milan, 2008, p. 247; P. Simone, ‘Contenuti e natura giuridica dei Memorandum of Understanding sul Port State Control’, in Tranquilli-Leali & Rosafio 2008, p. 267; R. Pollastrini, ‘Il controllo dello Stato di approdo: un utile strumento. Breve analisi dei principali aspetti giuridici’, Diritto marittimo, vol. 111, 2009, pp. 902 et seq. 25 By ‘substandard’ is meant those merchant ships that no longer meet the minimum safety and operating standards such that from a safety standpoint they should be classed as vessels that cannot be used anymore (see Leanza 1988, p. 285). On the tendency for there to be a link between registers of convenience and substandard ships, see among many A. Clarke, ‘Port State Control or Sub-standards Ships: Who Is to Blame? What Is the Cure?’, Lloyd’s Maritime Commercial Law Quarterly, 1994, p. 202; F. Lauria, ‘Bandiere ombra e situazioni giuridiche di comodo’, Trasporti, Vol. 11, 1977, pp. 83, 88.

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11  Port State Control name (one-shipowners). This is a result of the large oil companies’ outsourcing of transportation, apparently a countermeasure to the piercing of the corporate veil that the oil companies traditionally relied on to protect the group parent from being charged with liability.26 Stricter laws and the prospect of a hardened stance in case law have spurred oil companies to seek to circumvent safety rules by a wholesale resort to third party shipowners. The latter obtain the use of a single ship flying a flag of convenience under a bare-boat charter and operated through a ship management company that in turn hires the crew in a lowincome country through a crewing company.27 This expedient serves to save on operating costs, but not to increase maritime safety. Apart from the implications for environmental protection and ship safety in itself, it is clear that the practice just described has negative repercussions also for the situation of the crew in terms of occupational health and safety.28 In this context, PSC appears likely to play a fundamental role in making good some of the most serious shortcomings on the part of some flag states: not only has this approach been permitted by the most recent instruments of international maritime law concerning intrinsic ship safety, but also it has been positively encouraged by them.29 Primary responsibility for the standard of ships still lies with 26 See, in this regard, L. Sisto, ‘La tendenza delle grandi imprese petrolifere alla dismissione delle flotte e le implicazioni dell’atomizzazione dell’armamento cisterniero’, in A. Zanelli (Ed.), Inquinamento del mare e sicurezza della navigazione, Edizioni scientifiche Italiane, Napoli, 2004. 27 This was the situation, e.g., in the Erika case: it is well described by J. Bulot, Erika: plus jamais ça, Editions Des Equateurs, Paris, 2007, pp. 14 et seq. 28 On this topic, see, in general, E. Gragnoli, ‘La sicurezza del lavoro a bordo delle navi’, in La sicurezza del lavoro sulle navi e nei porti, Proceedings of the Pescara Conference of 18 November 2000, Milan, 2001, p. 39. See also A. Zanobetti Pagnetti, Il rapporto internazionale di lavoro marittimo, Bononia University Press, Bologna, 2008, pp. 71 et seq. 29 Consisting of entrusting the port authorities with the task of checking and enforcing safety standards, empowering them to adopt the measures necessary to secure compliance with safety rules on board ships. Similar provisions were already contained in the 1974 Convention on Safety of Life at Sea (SOLAS) and in the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL). See, e.g., Reg. 19/I SOLAS. See also the analogous provisions of Art. 5 MARPOL, Art. 21 LOAD LINES, Art. X STCW and Art. 12 TONNAGE. Moreover, Arts. 218 and 219 of the UN Convention on the Law of the Sea of 10 December 1982 (Montego Bay Convention) provide that the port State may check ships within their ports or offshore terminals in relation to any discharge into the water. See T. McDorman, ‘Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea Convention’, Journal of Maritime Law and Commerce, Vol. 28, 1997, pp. 305 et seq. In addition, the port State may inspect foreign ships that dock at their ports to check that they comply with international standards for ship safety, pollution prevention and shipboard living and working conditions and the domestic rules applicable to the ship. The main current relevant conventions are: International Convention on Load Lines 1966 as amended and 1988 Protocol (LOADLINES); 1974 SOLAS Convention, 1978 Protocol as amended and 1988 Protocol (SOLAS); 1973 International Convention for the Prevention of Pollution from Ships as amended by the 1978 Protocol (MARPOL); 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STWC), the most important changes to which were made in 1995 through the adoption of more modern standards that better reflect maritime safety needs and again in 2010, through the Manila Convention (adopted at the diplomatic conference held on 2125 June 2010 and entered into force on 1 January 2012, with a transitional period of five years); ILO Convention No. 147 of 1976 concerning Minimum Standards on Merchant Ships (ILO 147) and 1996 Protocol; 1972 Convention on the International Regulations for Preventing Collisions at Sea, as amended (COLREG); 1969 International Convention on Tonnage Measurement of Ships (TONNAGE); 1992 International Convention on Civil Liability for Oil Pollution Damage (CLC); ILO Convention No. 186 of 2006 on Maritime Labour (ILO 186). On the procedure for tacitly amending the content of the IMO conventions, which enables the technical rules contemplated therein to be rapidly updated, see Z.O. Ozcayir, ‘IMO Conventions: The Tacit Consent Procedure and Some Recent Examples’, Journal of International Maritime Law, Vol. X, No. 2, 2004, pp. 204 et seq. On this point see Masutti 2007, p. 438.

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Elda Turco Bulgherini the flag states (so-called Flag State Control), but as regards controls they are now flanked by the port states through the latter’s adoption of complementary supporting measures. That said, it is worth pointing out that some states, for a variety of reasons often linked to conscious decisions of an economic nature, fail to regularly comply with their international obligations. The extent of that problem was highlighted first and foremost by the International Maritime Organization (IMO), which as far back as 1992 set up a ‘Flag State Implementation (FSI)’ Sub-Committee, which still today is responsible for issues in connection with the failure to apply IMO safety rules. 11.3 Regional Agreements for Port State Control Experience has proved that PSC measures may be extremely effective, especially if organized on a regional basis.30 On that basis, the IMO has encouraged the establishment of regional organizations to that end, set up through the conclusion of agreements that take the form of a memorandum of understanding (MoU)31 between the maritime authorities of neighbouring states or in any event states involved in maritime traffic in a given area.32 The memoranda – it must be stressed – are not agreements concluded between states, but between maritime authorities, and hence can be considered as administrative agreements of a technical-operating nature.33 The purpose of those agreements is to secure local cooperation aimed at strengthening maritime safety, protecting the marine environment and improving living conditions on board ships. Through the adoption of that model, the contracting states to international 30 The costs of controls have significantly fallen, while the effectiveness of inspection programmes has risen. The information gathered, suitably collated and disseminated, could also serve to better identify the flag states, shipowners or single ships that afford minimum safety guarantees, thereby circumscribing and reducing the scope of action and preventing shipowners from deviating their ships towards ports in the same region that carry out less incisive checks. So writes Simone 2008, p. 271. 31 The MoU for Europe and the North Atlantic, signed in Paris, France, on 26 January 1982 (Paris MoU); the Agreement for Latin America, signed in Viña del Mar, Chile, on 5 November 1992 (Viña del Mar Agreement); the MoU for Asia and the Pacific, signed in Tokyo, Japan, on 1 December 1993 (Tokyo MoU); the MoU for the Caribbean, signed in Christchurch, Barbados, on 9 February 1996 (Caribbean MoU); the MoU for the Mediterranean, signed in La Valletta, Malta, on 11 July 1997 (Mediterranean MoU); the MoU for the Indian Ocean, signed in Pretoria, South Africa, on 5 June 1998 (Indian Ocean MoU); the MoU for West and Central African, signed in Abuja, Nigeria, on 22 October 1999 (West and Central African MoU); the MoU for the Black Sea, signed in Istanbul, Turkey, on 7 April 2000 (Black Sea MoU) and the MoU for the Persian Gulf, signed in Riyadh, Saudi Arabia, on 30 June 2004 (Riyadh MoU). 32 However, as has been underlined, the guarantee of safety can be assured solely by the State, and controls cannot be delegated to a management body or indirect agency (like a maritime authority). On this point, see E. Sicurezza, ‘Spunti di riflessione sul ruolo del Port State Control’, in A. Xerri (Ed.) Trasporti e globalizzazione: materiali per una ricerca, AV, Cagliari, 2004, pp. 163 et seq. 33 For more in-depth analysis of the legal status of the memoranda as agreements between private parties, see Simone 2008, pp. 298 et seq. In fact, they are not international conventions in a strict sense, but agreements between maritime authorities dealing with operational matters. Their importance and effectiveness on a practical level is undeniable. In fact, the obligations set out therein stem from the application of international conventions on previously mentioned matters.

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11  Port State Control conventions, acting by mutual accord, ensure that the various conventions on safety will be applied in their territorial waters and ports irrespective of whether a ship’s flag state has ratified them or not.34 The national maritime authorities thus undertake to inspect – within an agreed time span – a certain percentage of foreign ships that call on their ports that is set in each memorandum. In that way, close cooperation is established between the maritime authorities in a given area that fosters the reciprocal transmission and in any event publication, including through the special purpose websites, of the data gathered. It is evident that a tool like PSC, given its applicative potential, constitutes an important and efficacious response to the practice of flying flags of convenience and has beneficial knock-on effects also in terms of safeguarding crews and the marine environment. 11.4 The Paris Memorandum of Understanding Among the international arrangements for regional cooperation aimed at establishing a harmonized system of procedures for implementing PSC, the 1982 Paris Memorandum of Understanding on Port State Control in Implementing Agreement on Maritime Safety and Protection of the Maritime Environment (Paris MoU)35 was a response to the limitations of the earlier Hague Memorandum36 and pressure from public opinion for an agreed and decidedly effective stance after the Amoco Cadiz incident. The Paris MoU makes provision for regular inspections by the participating maritime authorities on ships that call on ports in the region in order to verify that they comply with the main international conventions on safety and is an important step in the evolution of PSC. In fact, the Paris MoU is a manifestation of Western countries’ wish to put in place a uniform regulatory regime governing operational aspects. The goal is to carry out an annual 34 Indeed, in the application of those standards, the maritime authorities are called upon to ensure that no preferential treatment is afforded to the ships of non-party states or to ships whose tonnage is less than that taken into consideration by the MoU. In accordance with the ‘not more favourable’ principle, ships that do not fly the flags of the states parties to the MoU are subject to more inspections and checks since they cannot submit certification that clearly shows that they comply with the standards concerned. Therefore, ships entitled to fly the flag of a State that is not a Party to a relevant instrument (so-called Ships Non-Parties), and thus not provided with certificates representing prima facie evidence of compliance with the required international standards, must be inspected to check that they are at least in a condition that is compatible with the purposes of the relevant instruments and do not end up enjoying more favourable treatment than the vessels flying the flag of one of the states that are parties to the relevant instrument. 35 The agreement was signed by the maritime authorities of seventeen European countries and Canada. The 33rd amendment entered into force on 1 July 2011 and can be viewed on the following website . The year 2012 was the thirtieth anniversary of the Memorandum, for which statistics were compiled on the activities carried out over the past thirty years, which can be viewed on the following website . 36 The Hague Memorandum entered into force on 1 July 1978 and was essentially applicable only to trade routes involving the North Sea and concerned solely checks on working and living conditions on board ships in connection with ILO Convention No. 147 of 1976.

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Elda Turco Bulgherini number of inspections equal to 25% of the average annual number of foreign ships that call on the region’s ports in order to check that the ships, without any discrimination as to the flag flown, comply with the standards laid down in the main international instruments designed to protect human life at sea and the environment.37 As will be explained later, the New Inspection Regime (NIR) (effective from 1 January 2011) has radically altered the objectives of the inspections and management of information. The changes in question concern mainly checks on ship safety, environmental protection and the maritime market, and are aimed at combating, as much as possible, the presence of substandard ships so as to avoid unfair competition by ships flying flags of convenience. The PSC regime so structured exhibits one of its most important features in the power to detain ships: if an inspection reveals deficiencies, it is possible to detain the vessel or suspend the operations in connection with which the deficiencies were found until the risk is completely eliminated.38 The main criterion governing the taking of such a significant step is assessment of the gravity of the deficiencies detected on the basis of which the ship is not in a condition to safely sail. With a view to ensuring a uniform approach to the effective application of international rules by European Union (EU) Member States vis-à-vis ships that navigate in waters under their jurisdiction39 and in order to avoid distortions in competition caused by a possible selective use of some ports rather than others (a sort of preference shown by shipowners for ports where inspections seem to be conducted less rigorously and less frequently), as early as 1995, the then European Community took steps to introduce uniform inspection and detention procedures (for example, Council Directive 95/21/EC on PSC).40 The latest 37 The current 23 maritime authorities that adhere to the MoU undertake, through the 33rd amendment (entered into force on 1 July 2011), to give effect to the provisions of the memorandum uniformly and, in particular, to consult, cooperate and exchange information with the other authorities in order to further the aims of the memorandum. The states parties to the Paris MoU are: Belgium, Bulgaria, Canada, Croatia, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Iceland, Italy, Latvia, Lithuania, Malta, Norway, Holland, Poland, Portugal, Romania, Russia, Slovenia, Spain, Sweden and the United Kingdom. 38 When exercising control under the MoU, the authorities must make all possible efforts to avoid unduly detaining or delaying a ship so as to avoid the undoubted economic repercussions that could stem from stopping a ship for reasons other than paramount safety ones. Indeed, shipowners may appeal and obtain compensation for any loss or harm suffered as a result of an undue detention or delay. On this subject see Pollastrini 2009, p. 905. 39 A more efficient application of the international rules on maritime safety and environmental protection can be assured only through specific action, including harmonization of the rules governing the detention of ships, granting the right to publish the results of inspections and denying non-compliant ships access to EU ports. 40 Incorporating PSC into EU law. See P. Viglietta (case comment), ‘Corte di giustizia Ce 22 giugno 2004’, Diritto dei trasporti, Vol. I, 2006, pp. 197 et seq. See also J. Campbell, ‘European Union Declares War on Substandard Ships’, International Journal of Shipping Law, 1996, pp. 59 et seq.; M. Grigoli, ‘Profili attuativi della politica di sicurezza marittima della Comunità europea’, Diritto marittimo, Vol. 99, 1997, pp. 49 et seq.; G. Camarda, ‘L’evoluzione della normativa internazionale comunitaria e nazionale vigente in materia di sicurezza della navigazione e prevenzione dell’inquinamento marino’, Rivista giuridica dell’ambiente, 2001, pp. 699 et seq.; L. Schiano Di Pepe, Inquinamento marino da navi e poteri dello Stato costiero. Diritto internazionale e disciplina comunitaria, Giappichelli, Torino, 2007; M. Brignardello, ‘La normativa comunitaria in materia di safety nella navigazione marittima’, in Tranquilli-Leali & Rosafio, 2008, pp. 175 et seq.

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11  Port State Control EU action in this area, in particular, takes the form of Directive 2009/16/EC41 and Directive 2009/21/EC,42 which have radically overhauled the rules originally introduced by the much amended Directive 95/21/EC repealed with effect from 1 January 2011.43

41 Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (in OJEC 2009 L 131/57). This Directive, Art. 37, of which repealed the aforementioned Directive 95/21/EC with effect from 1 January 2011, is constantly being amended, e.g., by Commission Regulation (EU) 428/2010 of 20 May 2010 implementing Art. 14 of Directive 2009/16/EC of the European Parliament and of the Council as regards expanded inspections of ships (in OJEU 2010 L 125/2). See also the Proposal for a Directive of the European Parliament and of the Council amending Directive 2009/16/ EC on port State control, 23 March 2012, COM(2012) 129 final. For Italy see Legislative Decree No. 53 of 24 March 2011 “Transposition of Directive 2009/16/EC international standards for ship safety, pollution prevention and shipboard living and working conditions for ships that call at Community ports and navigate in waters under the jurisdiction of the Member States” (Official Gazette of the Italian Republic No. 96 of 27 April 2011). Further to Commission Regulation (EU) 801/2010 of 13 September 2010 implementing Art. 10(3) of Directive 2009/16/EC of the European Parliament and of the Council as regards the flag State criteria (OJEU 2010 L 241/1) and Commission Regulation (EU) 802/2010 of 13 September 2010 implementing Art. 10(3) and Art. 27 of Directive 2009/16/EC of the European Parliament and of the Council as regards company performance (OJEU 2010 L 241/1), it is provided that on the basis of the total number of inspections and detentions over a three-year period, flag states are to be classified into black, grey or white lists, with flag states on the black list being divided into “very high,” “high,” “medium to high” or “medium” risk depending on their detention rate (Art. 1 of Reg. 801/2010). The annex to the second regulation introduces criteria for assessing company performance to be updated daily and calculated on the basis of the 36 months preceding the assessment. Companies can be ranked as having a “very low,” “low,” “medium” or “high” level of performance (Art. 2 of Reg. (EU) 802/2010). 42 Directive 2009/21/EC of the European Parliament and of the Council of 23 April 2009 on compliance with flag State requirements (OJEU 2009 L 131/132). For Italy see also Legislative Decree No. 164 of 6 September 2011 ‘Transposition of Directive 2009/21/EC on compliance with flag State requirements’ (Official Gazette of the Italian Republic No. 232 of 5 October 2011). 43 Other legislative acts adopted on the same date worthy of mention are: Reg. (EC) 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organizations (OJEU 2009 L 131/11); Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organizations and for the relevant activities of maritime administrations (OJEU 2009 L 131/47), transposed into Italian law by Legislative Decree No. 104 of 14 June 2011 (Official Gazette of the Italian Republic No. 159 of 11 July 2011); Directive 2009/17/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system (OJEU 2009 L 131/101), transposed into Italian law by Legislative Decree No. 18 of 16 February 2011 (Official Gazette of the Italian Republic No. 58 of 11 March 2011); Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council (OJEU 2009 L 131/114). The said Directive 2009/18/EC was transposed into Italian law by Legislative Decree No. 165 of 6 September 2011 (Official Gazette of the Italian Republic No. 233 of 6 October 2011). See also Directive 2011/15/EU of 23 February 2011 amending Directive 2002/59/EC of the European Parliament and of the Council establishing a Community vessel traffic monitoring and information system (OJEU 2011 L 49/33), transposed into Italian law by Ministry of Infrastructure and Transport Decree of 23 July 2012 (Official Gazette of the Italian Republic No. 217 of 17 September 2012).

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Elda Turco Bulgherini 11.5 Recent Developments. The New Inspection Regime in the Paris Memorandum of Understanding The days 21-30 November 2011 witnessed the holding of the annual general meeting of the IMO, which was asked to approve a Maritime Safety Committee (MSC) draft from May 2011 revising PSC. That document44 envisaged an expanded role for the IMO in PSC procedures and regional agreements: an initiative to be supported without hesitation.45 In fact, the document in question is the most recent IMO instrument on PSC and examines a great variety of aspects in depth. Again at the IMO annual general meeting of November 2011, a detailed revision of PSC procedures was approved. As mentioned before, the IMO has encouraged the establishment of regional organizations – set up through agreements – aimed at fostering cooperation on PSC, whose activities it coordinates and monitors.46 The inspection regimes obviously vary considerably from region to region.47 In line with the stated aim of increasing and improving controls by the authorities of a Member State within the context of the Paris MoU, it was decided to create a NIR operative from 1 January 2011.48 The NIR is designed to enable inspection of 100% of the highest risk ships that call on ports or anchor in the region based on a ‘riskbased target mechanism’ approach. The Paris MoU Committee meeting held in Naples on May 2011 undertook an initial assessment of the adoption of the NIR and agreed that its introduction had been successfully completed.49 Moreover, the NIR will rely on an information system, created ad hoc for that very purpose called THETIS, managed by the European Maritime Safety Agency 44 Res. A.1052 (27), Procedures for Port State Control, 2011, adopted on 30 November 2011 and published on 20 December 2011. Previously the Procedures for Port State Control were contained in Res. A.787 (1) of 23 November 1995 and Res. A.882 (21) of 25 November 1999. See also Report to the Maritime Safety Committee and the Marine Environment Protection Committee, Sub-committee on Flag State Implementation, twentieth session, 16 April 2012. 45 The IMO and Paris MoU have recently (26 March 2012) concluded an agreement concerning the exchange of information on detention, which highlights the growing cooperation between the two organizations. 46 It is possible to obtain information on all of the regional and other agreements, including who the parties thereto are, in Harmonization of Port State Control Activities, Progress Report on PSC Regimes, Subcommittee on Flag State Implementation, FSI 20/6/2, twentieth session, 17 November 2011. 47 The Tokyo MoU provides for an annual inspection rate of 80%. The Black Sea MoU has set an annual inspection rate of 75%. The Viña del Mar Agreement provides for an inspection rate of 20% every six months for each Member State over a three-year period. The Caribbean MoU, the Mediterranean MoU, the West and Central African MoU and the Riyadh MoU provide for annual inspection rate of 15% over a three-year period. The Indian Ocean MoU contemplates an annual 10% inspection rate. For other information, see Harmonization of Port State Control Activities, Progress Report on PSC Regimes, cit. 48 At its 43rd meeting, the Committee of the Paris MoU adopted a NIR that replaces the old regime with effect from 1 January 2011. The text can be found in Diritto marittimo, Vol. 112, 2010, pp. 322 et seq. 49 Successful Implementation of NIR, 9 May 2011, Paris Memorandum of Understanding on Port State Control Press Release, on web .

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11  Port State Control (EMSA),50 for the filing and distribution of reports. Ships are to be classified into three categories on the basis of the risk associated with them, the so-called Ship Risk Profile. The categories are High-Risk Ship (HRS), Standard-Risk Ship (SRS) or Low-Risk Ships (LRS). Inclusion in one of those categories is on the basis of predetermined elements depending on two factors: general ones (relating to the type and age of the ship, the flag it flies and performance of the recognized registration organization)51 and specific ones (relating to the deficiencies detected in the ship and the number of times it has been detained).52 LRS are rewarded with longer PSC inspection-free intervals (up to 36 months compared with the 6 months under the previous system), with evident economic and other advantages. In practice, the ships earmarked for PSC inspections are selected daily by qualified inspectors on the basis of the risk profile generated by the information system into which all of the reports compiled by PSC officers are input. The MoU uses the statistical data recorded in the agreement database – mainly the number of inspections and the ensuing number of detentions of substandard ships per flag state – to compile a ‘ranking’ of the authorities on the basis of their ability to assure the safety parameters: inclusion in either the black, grey or white list thus reflects the greater or lesser capacity of a flag state to guarantee effective levels of safety on board. If an analysis of the procedures governing selection of ships for inspection and the inspection methods set out in the MoU clearly shows that the inclusion of a state in the least welcome list leads to a greater burden for ships flying that flag in terms of a higher likelihood of inspection and more thorough inspections (with ensuing higher costs in terms of the time required to check an operational ship), it is also inescapable that the stigma 50 On EMSA, see, in general, Marino 2007, pp. 299 et seq.; Pellegrino 2010, p. 122; A. Facco, ‘Evoluzione della normativa in tema di port security’, in Tranquilli-Leali & Rosafio 2008, pp. 363, 378 et seq. For 2012 the European Commission has requested EMSA to monitor the application of Directive 2009/16/EC by making between four and six inspections of the Member States. EMSA will assist the Commission in drawing up a report on that application. For a virtually real-time picture of detention, visit . 51 The classification societies are often delegated by the flag states to carry out the majority of controls and monitoring on their behalf. For this reason, it is important to measure also the efficiency of the classification societies, and in the 2011 report one can read that the top-ranked society for 2009-2011 was the American Bureau of Shipping (ABS) followed by Det Norske Veritas (DNV). At the other end of the scale, the worst society was the Phoenix Register of Shipping (Ph.R.S.) based in Greece, which is the delegate of choice of many of the states that appear on the black list of the Paris MoU. On the work of the classification societies, see M.M. Comenale Pinto, ‘La responsabilità delle società di classificazione di navi’, Diritto marittimo, Vol. 105, 2003, p. 3; V. Corona, ‘La responsabilità delle società di classificazione’, in A. Antonini (Ed.), Trattato breve di diritto marittimo, Vol. III, Giuffrè, Milan, 2010, p. 413; C. Tuo, ‘Spunti per una riflessione sugli effetti del principio del mutuo riconoscimento applicato ai certificati delle società di classifica’, in Scritti in onore di F. Berlingieri, Vol. II (special issue), Diritto marittimo, 2010, p. 1097. See also for a general overview Lefebvre D’Ovidio et al. 2011, pp. 244 et seq. 52 To calculate the Ship Risk Profile one can use the Ship Risk Profile Calculator, available at .

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Elda Turco Bulgherini attached to that flag state could also have a decisive influence on a shipowner’s decision as to which flag to fly.53 On 9 July 2012 the 2011 annual report of the Paris MoU on PSC was published,54 with the white, grey and black lists considered to be the worldwide index for ‘flag performance’.55 Previously, at the 45th meeting of the Paris MoU Committee held from 7 to 11 May 2012 in Riga, Lithuania, the results of the 2011 inspections had been approved and new lists prepared on the basis of performance of the flag states and classification societies.56 With reference to the ranking of the recognized organizations and the three lists mentioned above, worthy of special note is the fact that Panama has remained on the white list,57 thanks to decisive action stemming from courageous decisions on legislation policy made by the government of that country. The number of white list flags increased by four,58 with the top-ranked country again being Germany.59 At the top of the black list is Libya, followed by Bolivia and Togo.60 As regards detentions, unlike in past years, they rose by 3.6% in line with the efforts of the Paris MoU Members States to concentrate inspections on ships with a higher risk profile. In fact, it is interesting to note that the detention rate is significantly higher for ships flying a ‘black listed flag’ (11.45% based on 1,327 inspections) compared with those flying a ‘grey listed flag’ (7.11% based on 1,181 inspections) or a ‘white listed flag’ (2.65% based on 16,829 inspections). For many years Italy was the country that made the largest contribution in terms of the number of inspections carried out and the number of ships detained until resolution of the grave irregularities detected. This year Italy ranks second, a very pleasing result in any case, with 8.29% of the inspections made by members (behind Spain with 8.71%), a 53 The transparency of the PSC inspection data, its processing for statistical purposes and the publication of the performance levels and reliability ranking of the states, and also shipowners and classification societies, serves to identify and reward responsible operators and penalize those who put profit before safety. 54 2011 Annual Report on Port State Control, which can be downloaded from . 55 The previous report for 2010 was published on 11 July 2011. 2010 Annual Report on Port State Control, which can be downloaded from . The data in the 2010 report is the last of its type since the NIR has changed many elements with obvious repercussions on future statistics. 56 Paris MoU Press Release, 11 June 2012, which can be viewed online at . 57 In light of the fact that in 2009 it had moved from the black list to the grey one and in 2010 it was included on the white list. 58 In 2011 the Islamic Republic of Iran, the Faroe Islands, Vanuatu and Latvia all made the list. 59 Again with reference to the flags that have recorded the lowest number of detained ships. Second was ­Sweden, followed by Denmark, Holland and the United Kingdom. 60 The Democratic Republic of Korea (North Korea) has ceased to be the worst flag only because a sufficient number of inspections were not carried out over the previous three years. In 2010 it recorded 17 detentions out of a total of 45 inspections. The 2011 lists cover eighty states: 17 on the black list, 20 on the grey list and 43 on the white list.

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11  Port State Control figure that gives a clear indication of how serious Italian PSC inspectors are about inspecting ships in Italian ports. It should be stressed that in addition to its routine inspection activities, the Paris MoU – like the Tokyo MoU61 – often undertakes campaigns to take account of specific factors.62 The most recent three-year campaign of this type commenced in September 2012 and concentrates on fire safety systems under SOLAS (Chapter II-2 Construction – fire protection, fire detection and fire extinction arrangements on board ships). The campaign is implemented under the auspices of the IMO, which is testimony to how important it is.63 In conclusion, it can be said that one of the tasks of PSC is to incentivize those operating in the maritime sector to adopt as their own a safety culture and, through the intensification of more effective inspections and stiffer penalties, to eliminate any economic advantage a shipowner or charterer might gain from flying ‘accommodating’ flags and using ships that do not meet international safety standards.

61 For a review of the activities carried out in 2011 by the Tokyo MoU, see Harmonization of Port State Control Activities, Summary of Tokyo MoU Activities in 2011, Subcommittee on Flag State Implementation, twentieth session, FSI 20/INF.10, 10 January 2012. 62 More precise information on the functioning and aims of the inspection campaigns can be found in Harmonization of Port State Control Activities, Global Concentrated Inspection Campaigns, Sub-Committee on Flag State Implementation, twentieth session, FSI 20/6/8, 20 January 2012. 63 As demonstrated in the Harmonization of Port State Control Activities, Concentrated Inspection Campaigns (CICs), Preliminary Results of the 2011 Paris MoU, Sub-Committee on Flag State Implementation, twentieth session, 20 January 2012.

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12

Coastal State Competences Regarding Safety of Maritime Navigation

Roberto Virzo* 12.1 The Competences of Coastal States Regarding the Safety of Navigation and the Erosion of the Freedom of the Seas Regime The erosion of the freedom of the seas regime that has been taking place, especially since the end of World War II, at an ever-increasing pace up to the beginning of the 1990s, seems to be continuing more gradually and in a different manner. It is a known fact that the main effects triggered by the acute phase of that process of erosion were the reduction of free areas of sea, the rise of the sovereignty of coastal states and archipelagic states over territorial seas, the exercise by those same states of special ‘sovereign rights’, the powers of control or jurisdiction over sui generis maritime zones and the continental shelf and the evolution of the legal nature of some competences of the flag state transformed from exclusive to concurrent ones.1 Currently, the spatial expansion of the rights and powers of coastal states and archipelagic states has been attenuated. For example, there has been no endorsement of unilateral attempts by some coastal states to exercise powers of control aimed at managing and rationally conserving some fish stocks in areas of the high seas adjacent to their exclusive economic zones (EEZ).2 Neither has any coastal state so far proclaimed a marine protected area3 beyond 200 nautical miles of their EEZ. Moreover, while it is true that ‘creeping jurisdiction’ cannot be said to have completely stopped, this is only because the Commission on the Limits of the Continental Shelf (CLCS) set up by the United Nations Convention on the Law of the Sea (UNCLOS)4 is

* Assistant Professor of International Law, University of Sannio; Adjunct Professor of International Law of the Sea, University of Florida, Levin College of Law. 1 In this regard, see T. Scovazzi, ‘The Evolution of the International Law of the Sea: New Issues, New Challenges’, Recueil des Cours de l’Académie de droit international de la Haye, Vol. 286, 2000, pp. 39-244. 2 For an analysis of the practice and legislation of some coastal states that in the 1990s proposed the establishment of these new maritime zones, see – also for the other literature cited therein – R. Casado Raigón, ‘La liberté de la pêche en haute mer’, in D. Vignes, G. Cataldi & R. Casado Raigón (Eds.), Le droit international de la pêche maritime, Bruylant, Brussels, 2000, pp. 128-157. 3 On some types of these marine protected areas, see infra § 12.4. 4 The UNCLOS was signed at Montego Bay on 10 December 1982 and entered into force on 16 November 1994. See 1833 UNTS 397.

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Roberto Virzo currently completing its examination of the requests of some coastal states to extend their own continental shelves beyond the 200 nautical mile limit.5 Therefore it is not a further case of expansion of the competences ratione loci of the coastal state, but rather implementation of an optional provision of UNCLOS,6 which for that matter is a convention that was negotiated and concluded precisely at a time coinciding with the most determined efforts of coastal states to claim various types of rights over vast tracts of the sea, land and seabed. It has been observed that probably if UNCLOS had been drawn up in more recent times, the legal rules governing the continental shelf beyond 200 nautical miles would be framed differently.7 However, as mentioned above, the process of erosion of the freedom of the seas regime cannot be considered as having ground to a halt. Rather than further reduce space on the high seas,8 today the process tends to encroach on the traditional delimitation of the rights and competences stemming from that regime – delimitation notoriously skewed in favour of the flag state – and, in the final analysis, to condition the legal regulation of activities at sea. Indeed, one can witness a progressive granting of some of those rights and powers also to the states and the international organizations among whom the maritime space totally or partially removed from the freedom of the seas has been divided up. In other words, in order to protect the interests of the international community coinciding more or less with their own needs, the coastal states, the archipelagic states, the regional fishing organizations for the high seas and the International Seabed Authority are ever more often exercising functions that previously had been carried out above all by the flag state. In this work we shall be examining, for example, the evolution of international law governing the safety of maritime navigation. The development of the rules in question emblematically reflects the trend described above. In particular, it will be noted that that trend envisages an ever greater role for coastal states9 and a progressive reduction of the competences traditionally enjoyed in the main by the flag state.

5 6 7 8 9

Art. 76, para. 8, UNCLOS. See V.J.M. Tassin, Les défis de l’extension du plateau continental. La consécration d’un nouveau rapport de l’Etat à son territoire, Pedone, Paris, 2013. Art. 76, para. 8, UNCLOS. A. Del Vecchio, ‘Piattaforma continentale, Postilla di aggiornamento’, in Enciclopedia Giuridica, Aggiornamento, Vol. XVII, Istituto della enciclopedia italiana Treccani, Rome, 2008, p. 3. For a different interpretation of the practice of the coastal states, see G. Andreone, ‘Les émergences environnementales et la stratégie de la sécurité maritime’, in G. Andreone, A. Caligiuri & G. Cataldi (Eds.), Droit de la mer et émergences environnementales, Editoriale Scientifica, Naples, 2012, pp. 59-64. On the competences of the European Union in the matter of the safety of maritime navigation, see – also for the other literature cited therein – H. Ringbom, The EU Maritime Safety Policy and International Law, Martinus Nijhoff, Leiden, 2008; A. Del Vecchio, ‘Protection et sécurité dans les transports maritimes: les mesures de l’Union européenne’, in J.M. Sobrino Heredia (Ed.), Sûreté maritime et violence en mer, Bruylant, Brussels, 2011, pp. 357-379; L. Schiano Di Pepe, ‘Prevention and Management of the Environmental ­Emergencies at Sea in the European Union’s Third Maritime Safety Package’, in Andreone, Caligiuri & Cataldi 2012, pp. 363-385.

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12  Coastal State Competences Regarding Safety of Maritime Navigation 12.2 Brief Remarks on the Competences of Port States Regarding the Safety of Navigation We shall not be dwelling on the competences that the coastal state exercises in relation to the safety of maritime navigation in its capacity as port state10 because port state control11 is covered in a specific chapter of this book.12 However, it is worth clarifying that reference in the previous section hereof to the traditional ‘principal’ competence of the flag state regarding the safety of maritime navigation is explained, firstly, by the fact that even the earliest treaties on this matter granted limited powers of control on ship safety to port states,13 some of which had actually ­already adopted domestic legislation to avoid a situation whereby safety levels would be independently and at times inadequately set by private parties.14 Indeed, these initial conventions were concluded for a number of reasons, including the following: (1) “unilateral initiatives could not have an incisive effect on important aspects of ship safety that took place in areas of the sea outside the governmental authority of the states” and (2) it became fundamental to lay down rules that were generally uniform in this field.15 Secondly, because – as noted also in the above-mentioned essay on port state control in this book16 – the weaknesses of the safety of navigation regime centred mainly on flag state control (discussed later) facilitated the inclusion in UNCLOS, International Maritime Organization (IMO) agreements17 and regional agreements between port authorities (socalled Memorandums of Understanding18) of provisions granting further competences to port states. 10 Moreover, it should be noted that at times the port state may exercise certain competences at the request of another coastal state. See, e.g., Art. 218, para. 2, UNCLOS. 11 E.J. Molenar, ‘Port State Jurisdiction’, in R. Wolfrum (Ed.), The Max Planck Encyclopaedia of Public International Law, Vol. VIII, Oxford University Press, Oxford, 2012, p. 355, prefers to speak in terms of port state jurisdiction, which “is broader than the term ‘port state control’”. Indeed, “Port State Jurisdiction is the competence of States to exercise prescriptive – or legislative – and enforcement jurisdiction over foreign vessels within their ports.” 12 See E. Turco Bulgherini, ‘Port State Control’, in this book. 13 See, e.g., Art. 59 of the Convention for the Safety of Life at Sea, which was signed in London on 20 January 1914 and entered into force on 1 July 1915, available at . 14 One can mention, e.g., the British Merchant Shipping Act of 21 December 1906 and the Act to Promote the Welfare of the American Seamen in the Merchant Marine of the United States of America of 4 March 1915, in United States Statutes at Large, Vol. 38, pp. 1164-1185. In this regard, see P. Boisson, Safety at Sea, Policies, Regulations and International Law, Bureau Veritas, Paris, 1999, pp. 45-53 and P. Celle, ‘Il Port State Control nel diritto internazionale’, in Studi in onore di Umberto Leanza, Editoriale Scientifica, Naples, 2008, pp. 1570-1573. 15 Celle 2008, p. 1572. 16 Turco Bulgherini 2013. 17 On the IMO and the conventions adopted under its auspices, see the thorough monograph H. LefebvreChalain, La stratégie normative de l’Organization Maritime (OMI), PUAM, Aix-en-Provence, 2012. 18 See P. Simone, ‘Contenuti e natura giuridica dei memorandum of understanding sul Port State Control’, in R. Tranquilli-Leali & E.G. Rosafio (Eds.), Sicurezza, navigazione e trasporto, Giuffré, Milan, 2008, pp. 267-315.

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Roberto Virzo 12.3 Cooperation between Coastal States and the International Maritime Organization Regarding the Safety of Maritime Navigation While it may not be necessary to dwell further on the rights, powers and controls that coastal states may exercise regarding the safety of navigation in their own ports and internal waters, it is worth reflecting on the competences that international conventions ever more frequently grant them over their territorial seas and sui generis maritime zones. They are competences that can be divided into two large categories, specifically, those that a coastal state exercises in conjunction with the IMO and those that it can exercise alone. The first category includes competences regarding the safety of maritime navigation, where an important role has been assigned also to the IMO in order to avoid a situation where the functions in question are exercised by coastal states with too much discretion to the point of imposing disproportionate limits on the right of passage or the freedom of navigation of other states. In fact, the various provisions of conventions that grant competences within this category to the coastal state do not lay down objective conditions governing actual exercise thereof. Given that those rules – which represent an evolution of those negotiated at the end of the 1970s to regulate intervention on the high seas in cases of oil pollution19 – exclude a coastal state on its own from deciding on actual intervention and require the involvement of the IMO. This also holds true for some UNCLOS provisions that generally refer to the competent international organization, given that – according to the UN Secretary General’s report of 20 October 199720 and the predominant literature21 – the latter can be none other than the IMO. Commencing therefore from UNCLOS, reference must be made above all to Articles 22, 41 and, as regards a particular type of coastal state, i.e. an archipelagic state, Article 53. The three provisions envisage the establishment for reasons of safety, of sea lanes or traffic separation schemes, respectively in the territorial sea, in straits used for international navigation and in archipelagic waters. More in detail, under Article 22, the coastal state may “where necessary having regard to the safety of navigation, require foreign ships exercising the right of innocent passage through its territorial sea to use […] sea lanes and traffic separation schemes” (paragraph 1), designated by it taking into account the recommendations of the competent international organization (paragraph 3(a)), which, as aforesaid, is recognized as being the IMO. 19 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Brussels, 29 November 1969; entry into force, 6 May 1975. See 970 UNTS 212. 20 GA A/52/491, 20 October 1997, Report of the UN Secretary General, Impact of the Entry into Force of the Unite Nations Convention of the Law of the Sea on Related, Existing or Proposed Instruments and Programmes, Section J, paras. 8 and 9. 21 See, e.g., B. Oxman, ‘Environmental Protection in Archipelagic Waters and International Straits. The Role of the International Maritime Organization’, International Journal of Marine and Coastal Law, Vol. 10, 1995, p. 467; D.R. Rothwell & T. Stephens, The International Law of the Sea, Hart Publishing, Oxford, 2010, p. 221; T. Dux, Specially Protected Marine Areas in the Exclusive Economic Zone (EEZ), LIT Verlag, Berlin, 2011, p. 194.

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12  Coastal State Competences Regarding Safety of Maritime Navigation That provision, which does not set out the criteria for determining when the establishment of sea lanes and traffic separation schemes is to be deemed necessary for the safety of maritime navigation, seems to suggest that a coastal state, even if not a member of the IMO, must take into consideration the pertinent recommendations of that organization so as not to breach the prohibition against impeding foreign ships from exercising their right of innocent passage through its territorial sea.22 In other words, it is one of those cases in which the exhortation to comply with a non-binding recommendation of a given international organization flows from an international treaty other than the one setting up the organization in question.23 Even more incisive is the role of the IMO under Article 41, paragraph 4, and Article 53, paragraph 9, UNCLOS so much so that some writers maintain that the provisions imply a “cooperative legislative competence of an unusual kind” of the IMO with the coastal state or with the archipelagic state.24 In fact, pursuant to both of the provisions, “before designating or substituting sea lanes or prescribing or substituting traffic separation schemes,” one or other of the states “shall refer proposals to the competent international organization with a view to their adoption.” If the IMO approves those proposals, the state bordering a strait25 or the archipelagic state may designate, prescribe or substitute the said sea lanes or traffic separation schemes. Moreover “ships in transit passage [in archipelagic sea lanes passage] shall respect applicable sea lanes and traffic separation schemes established in accordance with” Article 41 or 53.26 Cooperation between coastal states and the IMO in the matter of the safety of navigation is also contemplated in the Annex to the International Convention for the Safety of Life at Sea (SOLAS).27 In Chapter V, headed Safety of Navigation, amended on various occasions,28 it is provided inter alia that a coastal state may request the IMO for authorization to adopt a compulsory ship reporting system (SRS)29 in order to “contribute to 22 In that sense, Oxman 1995, p. 476; E.J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, Kluwer Law International, The Hague, 1998, p. 204; E. Scalieris, L’exercise du pouvoir discrétionnaire de l’Etat côtier en droit de la mer, Pedone, Paris, 2011, p. 170. 23 Permit me to refer to R. Virzo, ‘Gli atti delle organizzazioni internazionali’, in A. Del Vecchio (Ed.), Diritto delle organizzazioni internazionali, Edizioni Scientifiche Italiane, Naples, 2012, pp. 126-127. 24 Oxman 1995, p. 479 and, agreeing with him, Scalieris 2011, p. 173. 25 For an examination of the pertinent practice, see M. Fornari, Il regime giuridico degli stretti utilizzati per la navigazione marittima, Giuffré, Milan, 2010. 26 See paras. 7 and 11 respectively of Arts. 41 and 53 UNCLOS. 27 That Convention was signed in London on 1 November 1974 and entered into force on 25 May 1980. See United Nations Treaty Series, Vol. 1184, pp. 278 et seq. The Convention has been amended on a number of occasions, and reference should be made to the website . 28 For our purposes the most important amendment was that approved by the Maritime Safety Committee of the IMO through Res. MSC.31 (63) of 23 May 1994. 29 On the international legal rules governing SRS, see the following among many in the literature: G. Plant, ‘The Relationship Between International Rights and Environmental Protection: A Legal Analysis of Mandatory Ship Traffic Systems’, in H. Ringbom (Ed.), Competing Norms in the Law of Marine Environmental Protection, Kluwer Law International, The Hague, 1997, pp. 11-29; G. Mapplebeck, ‘Management of Navigation Through Vessel Traffic Services’, in D. Rothwell & S. Bateman, Navigational Rights and Freedoms of the New Law of the Sea, Kluwer Law International, The Hague, 2000, pp. 136-143; M.M. Comenale Pinto & G. Spera, ‘Profili giuridici dell’Automatic Identification System (AIS)’, in Tranquilli-Leali & Rosafio 2008, pp. 53-73.

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Roberto Virzo safety of life of sea, safety and efficiency of navigation and/or protection of the marine environment” (Regulation 11 (a)). By installing an SRS in one’s own territorial sea or maritime zones under one’s jurisdiction, a coastal state seeks to obtain from ships, flying its own or a foreign flag, that pass through that maritime space the information necessary to identify them and know in advance what type of cargo and goods are on board.30 The gathering of information may allow the coastal state to promptly intervene and act in the best manner should an accident occur,31 which could give rise to a grave risk of marine pollution. The mechanism provided for in Regulation 11 of Chapter V SOLAS is an incentive for coastal states to cooperate with the IMO. While it is true that pursuant to subparagraph d), “ship reporting systems not submitted to the Organization for adoption do not need to comply with this Regulation,” nonetheless, firstly, also in this latter case “Governments implementing such systems are encouraged to follow, wherever possible, the guidelines and criteria developed by the Organization.”32 Secondly, in the absence of specific IMO authorization, it will be more difficult for the coastal state to demonstrate that its SRS does not violate the customary rules enshrined in UNCLOS relating to innocent passage or transit or the freedom of navigation.33 Thirdly, and what probably counts more for the coastal state, only an SRS adopted and implemented in accordance with the guidelines and criteria developed by the Organization pursuant to this regulation, shall be used by all ships or certain categories of ships carrying certain cargoes in accordance with the provisions of each system so adopted.34 12.4 The Regulation of the Safety of Navigation in the “Special Areas” under Article 211, Paragraph 6, UNCLOS and in the Particularly Sensitive Sea Areas (PSSA) Cooperation between coastal states and the IMO regarding safety of maritime navigation is also required when certain maritime zones for the protection of the marine environment are established.

30 31 32 33 34

Fornari 2010, p. 142. Ibid. SOLAS, V-11(d). SOLAS, V-11(h). SOLAS, V-11(a). On this point see Scalieris 2011, pp. 170-172.

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12  Coastal State Competences Regarding Safety of Maritime Navigation Consider, for example,35 the special areas under Article 211, paragraph 6, UNCLOS. Regarding pollution from vessels, the first paragraph of Article 211 provides above all that the states parties to the Convention must – acting through the competent international organization or general diplomatic conference – establish rules, standards and routing systems to prevent pollution of the marine environment from vessels and to “minimize the threat of accidents, which might cause pollution of the marine environment, including the coastlines, and pollution damage to related interests of coastal states.” Neither paragraph 1 nor the other paragraphs of Article 211 mention safety of navigation. However, reference thereto is implicit. In fact, it is worth remembering that by safety is meant the safety of navigation that risks being compromised by technical accidents caused, for example, by the malfunctioning of the ship or human error36 and that rules on both safety and security37 are designed to safeguard persons on board ships (passengers and crew), things (ships, cargo and other items on board) and last but not least the marine environment.38 Pursuant to paragraph 2 of Article 211, the international rules and standards serve as parameters for domestic legislation that the states parties to the Convention must apply to the ships that fly their flag. However, there are some states that have not ratified either UNCLOS or other important conventions on pollution from vessels and the safety of navigation or that are contracting parties solely to the Montego Bay Convention or just some of the other conventions. This favours resort to flags of convenience. Indeed, some shipowners, so as to avoid complying with especially strict domestic laws that could have a bearing on their costs and hence profits, register ships with states that are bound by the smallest number of international agreements containing obligations regarding safety or that, though parties to the agreements, have neither the ability nor the will to carry out checks on compliance with the above-mentioned international rules and standards. 35 For an analysis of the various marine protected areas that could be established for a variety of purposes in EEZs, see Dux 2011, passim; for those on the high seas, see T. Scovazzi, ‘Marine Protected Areas on the High Seas: Some Legal and Policy Considerations’, International Journal of Marine and Coastal Law, Vol. 19, 2004, pp. 1-17. See also N. Matz, ‘Protected Areas in International Nature Conservation Law: Can State Obtain Compensation for Their Establishment?’, Zeitschrift für ausländisches öffentliches Recht und Völkerreckt, Vol.  62, 2002, pp. 693-716; D. Enríquez, ‘El florecimiento de las zonas marinas especialmente sensibles: hacia una nueva “batailla libresca” en pleno siglo XXI?’, Anuario mexicano de derecho internacional, Vol. 5, 2005, pp. 453-575; Y. Tanaka, The International Law of the Sea, Cambridge University Press, Cambridge, 2012, pp. 324-333; S. Wolf, ‘Marine Protected Areas’, in Wolfrum 2012, Vol. VI, pp. 1056-1063. 36 M. Brignardello, ‘La normativa comunitaria in materia di safety della maritime navigation’, in TranquilliLeali & Rosafio 2008, p. 175. 37 The rules governing security of navigation have as their object the repression of unlawful acts committed at sea with the intention of causing harm. See U. Leanza, ‘International Security and Powers of Enforcement at Sea’, in this book. 38 Brignardello 2008, p. 176.

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Roberto Virzo Also with a view to tackling that problem, UNCLOS provides that a coastal state – in addition to being able to adopt enforcement measures under Article 220 against all merchant ships, including foreign ones, in areas of the sea under its jurisdiction or over which it exercises rights, being able to adopt laws and regulations regarding pollution from ships applicable in the territorial sea39 and being able, if necessary, to take arbitral or court proceedings pursuant to Articles 286 and 287 against a flag state which does not verify that its own ships’ comply with safety of navigation rules40 – may be authorized by the IMO to establish a marine protected area. The latter may cover solely “a particular, clearly defined area” of the EEZ of the requesting coastal state. Moreover, it can be established for the purposes of adopting special mandatory measures for the prevention of pollution from vessels that are deemed necessary in light of the oceanographical and ecological conditions of the special area as well as its utilization, the protection of its resources and the particular character of its traffic. The request to establish a special area can be submitted when the coastal state concerned has ‘reasonable grounds’ for believing that in that area the rules and the standards mentioned in paragraph 1 are insufficient and hence special mandatory measures are required. Precisely because only general criteria are laid down for identifying a special area and precisely because there are no objective conditions to be met for coming to a decision as to the adoptability of special measures aimed at preventing pollution from vessels in that area, Article 211, paragraph 6 – analogously to Articles 22, 41 and 53 UNCLOS – does not leave it up to the coastal state alone to decide at its discretion on the establishment of marine protected area and the issuing of the ad hoc measures applicable thereto. More specifically, Article 211, paragraph 6, provides that it is a matter for the competent international organization, i.e. the IMO, “to determine whether the conditions in that area correspond to the requirements set out above.” Once it has obtained the IMO’s 39 Art. 211, para. 4, UNCLOS. 40 Proceedings of that type would concern possible violations by a flag state of Art. 94, paras. 3-5, UNCLOS. Even though not relating to safety of navigation, a dispute in connection with flags of convenience is currently pending before the International Tribunal for the Law of the Sea (ITLOS). In the M/G “Virginia” (Panama v. Guinea-Bissau) case, originating from the arrest by the Guinea-Bissau authorities of the Panama-registered oil tanker Virginia while carrying out refuelling operations, Guinea Bissau submitted a counterclaim that was ruled admissible by ITLOS in its order of 2 November 2012 . In its counterclaim, Guinea-Bissau maintains that “Panama violated article 91 of the Convention by granting its nationality to a ship without any genuine link to Panama, which facilitated the practice of illegal actions of bunkering without permission in the EEZ of Guinea-Bissau” and that “Guinea-Bissau is entitled to claim from Panama all damages and costs caused by the VIRGINIA G to Guinea-Bissau, which are a result of the granting of the flag of convenience to the ship by Panama” (para. 16). Again ITLOS, on 28 March 2013, was requested to give an advisory opinion by the Sub-Regional Fisheries Commission concerning liability of the flag state for illegal, unreported and unregulated fishing activities conducted in an EEZ by a Member State of that organization (see ). On the dispute settlement system enshrined in Part XV of UNCLOS, refer – also for the other literature cited therein – to R. Virzo, Il regolamento delle controversie nel diritto del mare: rapporti tra procedimenti, CEDAM, Padua, 2008, pp. 22-35, 69-99, 153-164. See also I.V. Karaman, Dispute Resolution in the Law of the Sea, Martinus Nijhoff, Leiden, 2012.

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12  Coastal State Competences Regarding Safety of Maritime Navigation authorization, the coastal state may adopt the special measures, communicating them to the said international organization and, after at least fifteen months have elapsed since that communication, enforce compliance therewith by foreign vessels navigating in the special area.41 A cooperation mechanism between the IMO and one or more coastal Member States similar to that under Article 211, paragraph 6, UNCLOS also aimed at strengthening the safety of maritime navigation is set out in a non-binding act that has been resorted to on various occasions, i.e. the Guidelines for Identification and Designation of Particularly Sensitive Sea Areas issued by the IMO in 199142 and amended by Resolution A.982 of 1 December 2005.43 Further to paragraph 4.4 of the Revised Guidelines, in order for a marine area to be classified as a PSSA, it must first of all meet IMO ecological criteria, social, cultural and economic criteria or scientific and educational criteria.44 The second criterion is strictly linked to the safety of navigation because “in addition to meeting at least one of the criteria listed in 4.4, the recognized attributes of the area should be at risk from international shipping activities.”45 41 According to W.G. Vitzhum, ‘Shiffssicherheit: DIE EG als potentieller Durchsetzungsdegen der IMO’, Zeitschrift für ausländisches öffentliches Recht und Völkerreckt, Vol. 62, 2002, p. 170, inside the EEZ “ist ohne IMO-Zustimmung erfolgende Beschränkung des Schifffahrt in einem bestimmen Gebiet unzulässig.” 42 IMO Res. A.720(17), 6 November 1991. 43 It is interesting to observe that two PSSAs – that of the Sea Area around the Florida Keys, IMO Res. MEPC.98(47), 8 March 2002, and that of the Papahãnaumokuãkea Marine National Monument, IMO Res. MEPC.8(56), 5 April 2007 – were authorized by the IMO at the request of the USA, which in as much as it is not a signatory of UNCLOS, cannot in theory request the establishment of special areas under Art.211, para. 6, of the Montego Bay Convention. 44 A PSSA that fulfils all of the aforementioned interests is Papahãnaumokuãkea Marine National Monument (North-Western Hawaiian Islands), IMO Res. MEPC.8(56), supra, note 43. In fact, this area “supports a unique, dynamic coral reef ecosystem, which, thanks to its relative isolation, is among the healthiest in the world. It is one of the last remaining large-scale wilderness coral reef ecosystem on the planet and the largest coral reef ecosystem in the marginal tropical sea” (para. 3.2.1); “Parts of the area provide critical habitat for a variety of endangered or threatened species […] These species include the critically endangered H ­ awaiian monk seas; the endangered sperm whale; the endangered hawksbill; leatherback and green sea turtles; the endangered short-tailed albatross; six endangered plant species and four endangered land birds” (para. 3.3.1); It “supports more than 7,000 species of fishes, plants, coral and other invertebrates” (para. 3.5.1); “It is geologically unique: The islands were created from a single plume of magma rising from a hot spot in the earth’s mantle. Built up over millions of years of eruption, high volcanic islands were formed” (para. 3.11.2). Furthermore, “The NWHI are of particular importance because of their significance in Native Hawaiian history and culture. The NWHI have long been considered a sacred place in Native Hawaiian traditions, and two of the islands in particular contain important archaeological sites” (para. 3.12.1); “The NWHI are rich in underwater cultural heritage. The numerous wrecks found in the area are time capsules which capture specific elements of our seagoing past. Documents indicate that over 120 vessels and aircraft have been lost in the waters of the area” (para. 3.13.1). Eventually, “given the fact that the NWHI are remote and rich with marine and terrestrial life, they provide one of the few areas in the world where researchers can conduct large-scale comparisons between human impacted marine ecosystems and un-impacted marine ecosystems” (para. 3.14.1); “The NWHI provide a model and rare benchmark of a health intact integrated ecosystem in its natural or near-natural state that may inspire Hawaiian residents as well as others to take part in ocean restoration efforts in their communities” (educational message; para. 3.16.1). In literature, on that PSSA, see J. Kraska, Maritime Powers and the Law of the Sea, Oxford University Press, Oxford, 2011, pp. 371-374. 45 IMO Res. A.982, para. 5.1

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Roberto Virzo Unlike the special areas under Article 211, paragraph 6, UNCLOS, a PSSA must not necessarily be restricted to a clearly defined area of a given EEZ since it can extend “within and beyond the limits of the territorial sea.” It follows that it is possible to establish a PSSA in the territorial sea, contiguous zone and EEZs of one or more IMO Member States.46 Moreover, it would seem possible to establish a PSSA on the high seas where beyond its territorial sea a coastal state has not established any functional zone.47 Moreover, to date that has not happened for any of the thirteen PSSAs authorized by the IMO.48 The proposals to establish a PSSA and the measures to be applied in the area in question must be submitted by the state or Member States concerned to the IMO, which “is the only international body responsible for designating areas as PSSAs and adopting protective measures.”49 The ensuing IMO resolution will contain the name of the PSSA and approval of the special protective measures as well as recommendations addressed to the other states – which should take all appropriate steps to ensure that ships flying their flag comply with the associated protective measures adopted50 – or binding decisions. In this regard, it is important to note that for some PSSAs, the IMO had adopted compulsory measures for its members precisely in connection with the safety of navigation. For example, with reference to the Galapagos Archipelago PSSA, after having specified in the establishing resolution that that PSSA will enhance maritime safety, safety of navigation and protection of the marine environment in the area concerned,51 the IMO adopted a new mandatory SRS52 applicable to all vessels and to that end granted powers of control to the coastal state (Ecuador). 12.5 The Competences Regarding Safety of Navigation Exercisable Independently by Coastal States Not always does the adoption by coastal states of measures aimed at reinforcing the safety of maritime navigation presuppose cooperation with the IMO or require authorization by

46 This is the case for the following PSSAs: Wadden Sea, IMO Res. MEPC.101(48), 11 October 2002; Western European Waters, IMO Res. MEPC.121(52), 15 October 2004; Great Barrier Reef and Torres Strait, IMO Res. MEPC.133(53), 22 July 2005; Baltic Sea Area, IMO Res. MEPC.136(53), 22 July 2005; Strait of Bonifacio, IMO Res. MEPC.204(62), 15 July 2011. 47 On the question of PSSAs in zones of the high seas, see M.J. Kachel, Particularly Sensitive Sea Areas. The IMO’s Role in Protecting Vulnerable Marine Areas, Springer, Berlin, 2008, pp. 274-280. 48 In addition to those mentioned above in notes 43 and 46, the following PSSAs have also been established: Archipelago of Süabana-Camaguey, IMO Res. MEPC.74(40), 25 September 1997; Sea Area around Malpelo Island, IMO Res. MEPC.97(47), 8 March 2002; Paracas National Reserve, IMO Res. MEPC106(49), 18 July 2003; Canary Island, IMO Res. MEPC.134(53), 22 July 2005; Galapagos Archipelago, IMO Res. MEPC.135(53), 22 July 2005; The Saba Bank, IMO Res. MEPC.226(64), 5 October 2012. 49 IMO Res. A.982, cit., para. 3.1. 50 IMO Res. A.982, cit., para. 9.1. 51 IMO Res. MEPC.135(53), cit., para. 3.5. 52 IMO Res. MSC.229(82), 5 December 2006.

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12  Coastal State Competences Regarding Safety of Maritime Navigation the latter. In fact, by virtue of other provisions of conventional international law, certain competences relating to that subject are independently exercisable by the coastal states. In this regard, a significant example is Article 234 UNCLOS on ice-covered areas: Coastal States have the right to adopt and enforce 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.53 In view of how the provision is actually worded, it would be difficult for a coastal state in implementing it to abuse it for other ends by adopting national rules on the safety of navigation for reasons other than protecting the marine environment of an ice-covered area. Indeed, Article 234 UNCLOS does not lend itself to any interpretative doubts and even clarifies that an area of the EEZ will be classified as ice-covered if it is so for the majority of the year. The objective of the measures adopted in this area is to avoid shipping accidents that could cause an environmental disaster or seriously compromise the marine ecosystem. Solely if particularly severe climatic conditions and the ice actually make navigation dangerous can the latter be subject to unilateral restrictions imposed by the coastal state. Finally, the measures that one can adopt must not be discriminatory, i.e. must be applied also to ships flying the flag of the coastal state. In short, unlike Article 211, paragraph 6, to which it has been said “forms lex specialis,”54 Article 234 lays down less discretionary 53 On Art. 234 UNCLOS, see among others: C. Lamson, ‘Arctic Shipping, Marine Safety and Environmental Protection’, Marine Policy, Vol. 11, 1987, pp. 3-15; D. McRae, ‘The Negotiations of Article 234’, in F. Griffiths (Ed.), Politics of the Northwest Passage, McGill-Queen’s University Press, Montreal, 1987, pp. 98-114; R. Huebert, ‘Article 234 and Marine Pollution Jurisdiction in the Arctic’, in A.G. Oude Elferink & D.R. Rothwell (Eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, Martinus Nijhoff, The Hague, 2001, pp. 249-267; K. Barstenstein, ‘The “Arctic Exception” in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?’, Ocean Development and International Law, Vol. 42, 2011, pp. 22-52; Dux 2011, pp. 212-218; F. Borgia, Il regime giuridico dell’Artico. Una nuova frontiera per il diritto internazionale, Editoriale Scientifica, Naples, 2012, pp. 106-112; A. Caligiuri, ‘L’océan Arctique entre reviviscence des politiques étatiques et recherche d’une coopération international renforcée: quel régime de protection pour son environnement?’, in Andreone, Caligiuri & Cataldi 2012, pp. 326-332; T.L. McDorman, ‘National Measures for the Safety of Navigation in Arctic Waters: NORDREG, Article 234 and UNCLOS’, in M.H. Nordquist et al. (Eds.), The Law of the Sea Convention: US Accession and Globalization, Martinus Nijhoff, Leiden, 2012, pp. 409-424. 54 Dux 2011, p. 212.

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Roberto Virzo criteria for the adoption of national measures for the safety of navigation to the extent of making IMO-Coastal state “cooperative legislative competence” necessary.55 Moreover, among those provisions that Article 234 must be read in conjunction with systematically is Article 194, paragraph 5, UNCLOS, which requires the states parties to take measures “necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.” Well, in an exclusive economic zone, ice-covered or otherwise, the main addressee of that obligation is the coastal state, which more in general is granted “jurisdiction […] with regard to the protection and preservation of the marine environment.”56 It follows that the absence of a specific role for the IMO in Article 234 depends both on the conditions that the provisions lay down to limit the discretionary power of the coastal state to issue measures concerning the safety of navigation and the objective that the measures in question must have in the sense of their serving to implement the obligation to “protect and preserve rare or fragile ecosystems,” an obligation that, as aforesaid, is one for the coastal state as far as an exclusive economic zone is concerned. Similarly linked to the exercise of further coastal state competences are the safety zones measuring at most 500 m that can be established around artificial islands, installations and structures in the EEZ (Art. 60, paras. 4-6, UNCLOS) or on the continental shelf (Art. 80 UNCLOS), including those specially set up for marine scientific research (Art. 260 UNCLOS). In effect, although those zones are designed above all to “ensure the safety both of navigation and the artificial islands, installations and structures,” they are instrumental to the exercise of a coastal state’s right “to construct and to authorize and regulate the construction, operation and use of artificial islands” as well as “to regulate, authorize and conduct marine scientific research” in the EEZ or on the continental shelf.57 Since all ships must observe the safety zones,58 UNCLOS allows the coastal state to unilaterally set them up only if, as mentioned before, their breadth does not exceed a distance of 500 m around them.59 If the coastal state needs to proclaim more extensive safety zones, it will have to ensure that these comply with “generally accepted international standards” or IMO recommendations.60 Therefore, also these articles set precise conditions to a coastal state’s adoption of measures relating to the safety of navigation.

55 See, on this point, Barstenstein 2011, p. 37; Dux 2011, p. 213 comments: “However, despite the fact that under Article 34 LOSC the Coastal State is not obliged to approach the IMO for approval of its legislation, it still may wish to do so as a matter of practically and due publicity.” 56 Art. 56, para. 1b)iii, UNCLOS. 57 See, on this point, A. Del Vecchio, Zona economica esclusiva e Stati costieri, Le Monnier, Florence, 1984, pp. 151-154. 58 Art. 60, para. 6, UNCLOS. 59 With reference to the limits of the discretionary power to establish safety zones under Art. 60 UNCLOS, see Scalieris 2011, pp. 75-77. 60 See, in particular, IMO Res. A.671(16), 19 October 1989. By contrast, Art. 260 UNCLOS does not permit the proclamation of safety zones extending more than 500 m around marine scientific research installations.

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12  Coastal State Competences Regarding Safety of Maritime Navigation Among other provisions that contemplate a possibility for a coastal state to independently exercise certain competences concerning the safety of navigation, one can mention Article 9 of the International Convention on the Removal of Wrecks.61 It provides that within its own EEZ,62 the coastal state may lay down the conditions necessary to ensure that the removal of a wreck that was not flying its flag is done by the state of the ship’s registry “in a manner that is consistent with considerations of safety and protection of the marine environment” (paragraphs 4 and 5). Finally, there are rules on the safety of navigation that, in addition to granting competences – and imposing obligations – mainly on coastal states, urge cooperation between the latter and flag states. Falling within this category are Article 43 UNCLOS and Regulation 13 of Chapter V SOLAS on navigational and safety aids, for example, lighthouses and maritime signals.63 The first provision is applicable to international straits and the second to any area of the sea. Only the latter expressly lays down an obligation for the coastal state to put in place the navigational aids necessary to ensure a high level of safety. Both recommend the coastal states or the states bordering a strait, on the one part, and the flag states, on the other part, to cooperate in the maintenance and establishment of such navigational and safety aids as the volume of traffic justifies and the degree of risk requires.64 12.6 Concluding Remarks The classification and the analysis of the rules set out in international treaties on the law of the sea and IMO resolutions conducted in the above sections hereof call for a number of concluding remarks. As a first consideration, it can be observed, from a general point of view, that the proliferation of treaties and acts of international organizations, which include rules and standards 61 That convention was signed in Nairobi on 18 May 2007 (not yet into force). The text can be viewed in A.V. Lowe & S.A.G. Talmon, The Legal Order of the Oceans. Basic Documents on Law of the Sea, Hart Publishing, Oxford, 2009, pp. 867-877. 62 Or if the coastal state party to the Nairobi Convention has not established an EEZ “in an area beyond and adjacent to the territorial sea of that state determined by that state in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured” (Art. 1, para. 1). 63 In this regard see, among others, S. Zunarelli, ‘Fari e segnalamenti’, in Digesto delle discipline privatistiche. Sezione commerciale, Vol. 5, UTET, Turin, 1990, pp. 491-495; D.H. Anderson, ‘Funding and Managing International Partnership for the Malacca and Singapore Straits, Consonant with Article 43 of the UN Convention on the Law of the Sea’, Singapore Journal of International & Comparative Law, Vol. 3, 1999, pp. 444-456; N. Oral, ‘Straits Used in International Navigation, User Fees and Article 43 of the 1982 Law of the Sea Convention’, Ocean Yearbook, Vol. 20, 2006, pp. 561-594; Fornari 2010, pp. 165-170; L.B. Sohn et al., Law of the Sea in a Nutshell, 2nd edn, West Publishing, St. Paul, 2010, p. 233; R. Virzo, ‘Lighthouses and Lightships’, in Wolfrum 2012, Vol. VI, pp. 873-876. 64 In this regard, an example is the Cooperative Mechanism between the Littoral States and User States on Safety Navigation and Environmental Protection in the Straits of Malacca and Singapore of 16 August 2007. See IMO/SGP 2.1/1, in particular paras 18-19.

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Roberto Virzo whose application is designed to avoid incidents at sea caused by accidents, collisions, structural failure or intolerable working conditions and hours for seafarers, responds to an increased need for safety – understood in its various meanings – that characterizes the “modern risk society”.65 As has been observed, the sensation of widespread danger that characterises current society has in fact given rise to the perception by public opinion of man’s capacity to control not only harmful events caused by acts or omissions […] but even – within certain limits – those deriving from natural disasters, whose damaging effects it is felt can at least be contained (if not totally eliminated).66 That “has generated a demand or an expectation from the community as a whole that those who can intervene to eliminate or reduce the risk should take the measures necessary to ensure safe conditions.”67 As described in the preceding sections, in connection with the safety of navigation, international law requires that those measures must be adopted or also implemented by coastal states. So, a second consideration relates precisely to the involvement of coastal states and, more specifically, the competences attributed to them to that end. In fact, if one compares the provisions by virtue of which coastal states are obliged to cooperate with the IMO with those that permit them to independently intervene or that even prescribe them to adopt certain measures, and if one also interprets UNCLOS in a coordinated manner with other treaties and IMO resolutions, one can argue that the overcoming of the paramount role of flag states concerning the safety of maritime navigation is a product ‘simply’ of the evolution of the general delimitation of the respective competences of the latter and coastal states.68 In other words, the classification made in Sections 3, 4 and 5 demonstrates that the competences inherent in the safety of navigation granted mainly to the coastal state and, consequently, removed from or – if linked to activities of more recently regulation – not attributed to the exclusive power of flag states are necessarily ancillary to the exercise of their sovereign rights, powers of control or jurisdiction that the current law of the sea reserves for coastal states. Indeed, as mentioned before, among the prerogatives of coastal states or states bordering straits, one can include, for example, management of safety zones proclaimed around artificial islands and installations of the EEZ or the continental shelf, the regulation in the EEZ of the safe removal of wrecks or administration of navigational aids in international straits. 65 In that sense F. Pellegrino, ‘I nuovi orizzonti della sicurezza marittima’, in Scritti in onore di Francesco ­Berlingieri, Numero speciale di Il diritto marittimo, Edizioni del Diritto Marittimo, Genoa, 2010, p. 793. 66 Ibid. 67 Ibid. 68 It should be stressed that also relevant for our purposes are the competences that a coastal state exercises as a port state at the request of another coastal state or the flag state. See note 10 above.

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12  Coastal State Competences Regarding Safety of Maritime Navigation On the other hand, flag states mainly retain competence to adopt measures necessary to ensure the safety of ships at sea and to check implementation of those measures, as, moreover, laid down in Article 94, paragraphs 3-5, UNCLOS. It follows that only if authorized by the IMO or acting in cooperation with the latter – under whose auspices moreover are issued the international rules and standards that the national measures adopted by flag states must comply with – may coastal states, archipelagic states or states bordering straits resort to further safety measures that affect (depending on whether what is involved is a territorial sea, archipelagic waters, international straits, a contiguous zone, an EEZ or a type of marine protected area) the right of innocent passage, transit and freedom of navigation of ships flying the flag of a third state. The combination of competences enjoyed by the IMO, coastal states and flag states raises a third consideration. It seems, above all, that the exercise by coastal states of additional competences concerning safety, including those attributed through the filter of the IMO as the case may be, which leads to a reduction of the competences of flag states and vice versa, is based on a desire to safeguard the interests not only of the state that from time to time claims an interest, but also those of the international community as a whole. Thus, for example, as observed above, the establishment of a PSSA presupposes that it is a marine area considered important by the IMO and hence by the international community for environmental, socio-economic, cultural, scientific or educational reasons. Accordingly, it must be an area in which one or more coastal states identify special measures for the safety of navigation, which, in view also of the phenomenon of flags of convenience and the fact that not all have ratified the relevant IMO Convention, are deemed necessary not only for the purposes of preventing ecological disasters following an oil spill, but also more banal cases of marine pollution from vessels. Think, for example, how important it is for Ecuador and the entire international community to assure the maximum level of protection of the environment and ecosystem of the Archipelago of the Galapagos, which, as the IMO resolution establishing the PSSA recites, “ha[s] been declared a national and World Heritage site, recognized world-wide for its scientific and cultural importance.”69 Similarly, the need for the international community to avoid the occurrence of serious maritime accidents likely to lead to a loss of human life or to grave harm to the marine environment can encourage cooperation between maritime powers and coastal states that for economic reasons, temporary or otherwise, do not have sophisticated and costly navigational aids or cannot manage them. Indeed, after the terrible sinking of the Dona Isabel frigate in January 1861 off Cape Spartel in the territorial sea of Morocco in which all on board perished, including 250 cadets, it was decided in 186570 to set up an international commission along the lines of the one for navigation on the Rhine and Danube, charged 69 IMO Res. MEPC135 (53), para. 3.4. 70 Convention Concerning the Administration and Upholding of the Lighthouse at Cape Spartel, Tangier, 31 May 1865, which entered into force on 14 February 1867. See American Journal of International Law, Supplement, Vol. 16, 1912, pp. 14-17.

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Roberto Virzo with constructing and administering a lighthouse on Cape Spartel.71 More recently, in 2007, an agreement was concluded between the User states and states bordering the straits of Malacca and Singapore,72 which, further to Article 43 UNCLOS, made provision for the setting up of a fund for repairing, restoring and managing the navigational aids damaged by the tsunami in December 2004.73 One final consideration stems precisely from the UNCLOS provisions on the safety of navigation referring at least impliedly to safeguarding the general interests of the international community, which provisions could also be helpful in resolving some interpretive doubts in connection with Article 59 UNCLOS.74 That article pursues objectives similar to those aforementioned provisions since it is aimed at resolving disputes on the attribution or exercise of one or more residual competences that could arise in a given EEZ between the coastal state and third states. More precisely, Article 59 states as follows: In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zones, and a conflicts arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. Well, it seems to us, analogously to what occurs for the regulation of concurrent competences regarding the safety of navigation, that the reference to the general interests of the international community could assume decisive importance in establishing whether the carrying on of a certain activity in an EEZ, not specifically regulated in UNCLOS, must be attributed to the coastal state or is to fall within that which appears to be the everincreasing ‘eroded’ regime of freedom of the high seas.

71 In this regard see D.J. Bederman, ‘The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel’, Virginia Journal of International Law, Vol. 36, 1996, pp. 275-377, who has highlighted that it was a case of “collective adoption of responsibility by a group of states for an activity of importance for the entire global community” (p. 275). 72 See note 64 above. 73 Fornari 2010, p. 263. 74 On that provision, see – also for the other literature cited therein – the in-depth study carried out by S. Karagiannis, ‘L’article 59 de la Convention des Nations Unies sur le droit de la mer (ou les mystères de la nature juridique de la zone économique exclusive)’, Revue belge de droit international, Vol. 37, 2004, pp. 325-418.

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13

Civil Liability, Shipping and Marine Pollution: A Critical Appraisal

Daniele Gallo* 13.1 Identification and Delimitation of the Scope of the Analysis In order to identify and circumscribe the subject matter and scope of this work, it should be noted at the outset that the following issues will not be examined here: the duties and powers of the state (coast, flag or port)1 in case of marine pollution and associated questions, chief among which that of so-called ‘flags of convenience’; cases of marine pollution caused by agents other than hydrocarbons such as radioactive substances2; marine pollution caused by hydrocarbons for propulsion and navigation (heavy fuel oils and lubricants); marine pollution not originating from ships like that stemming from off-shore oil platforms; so-called ‘operational’ marine pollution from ships, consisting of the voluntary discharge of ballast water and bilge and washing the tanks; criminal law aspects of marine accidents; specific aspects regarding compensation funds for the victims of marine pollution.3 Having clarified the above, suffice it to say here that this article will analyze the civil liability of private parties for the harm from marine pollution caused by the accidental spillage of hydrocarbons transported by oil tankers (especially crude oil but also diesel and heavy fuel oil) into the sea as a result of accidents like explosions, collisions or structural failure of the vessel. In particular, it will concentrate on the more problematic aspects that that issue raises, moreover in the knowledge that the greatest percentage of overall marine pollution is currently the result of operational discharges and events occurring on shore.4 * 1 2 3 4

Assistant Professor in EU Law, Luiss-Guido Carli (Rome). On port state control, see the chapter by E. Turco Bulgherini in this volume. Governed by specific rules contained, in particular, in the HNS Convention (International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea) of 3 May 1996. On the features and complementarity of that mechanism, see the chapter by M. Comenale Pinto in this volume. In fact, ship-source pollution is just one form of marine pollution, although obviously a very important one. On this point and other sources of pollution, see F. Munari & L. Schiano di Pepe, Tutela transnazionale dell’ambiente, Il Mulino, Bologna, 2012, pp. 162-164. For an overview of the legal rules governing international maritime traffic see S.M. Carbone, La disciplina giuridica del traffico marittimo internazionale, Il Mulino, Bologna, 1982.

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Daniele Gallo 13.2 The International Regulatory Framework Governing Ship-Source Oil Pollution The international regulatory framework governing ship-source marine oil pollution consists of a significant body of rules dealing with the behaviour of private parties involved for one reason or another in shipping.5 Among the international treaties relating also and above all to accidental pollution,6 all drawn up within the context of conferences held by the International Maritime Organization (IMO),7 of particular importance are the Convention on the International Regulations for Preventing Collisions at Sea (COLREG) of 20 October 1972, the International Convention for the Prevention of Pollution from Ships of 2 November 1973 as amended by the Protocol of 17 February 1978 (hereinafter the MARPOL Convention and the MARPOL Protocol), and the International Convention for the Safety of Life at Sea (SOLAS) of 1 November 1974.8 Within the context of European Union law,9 in additional to what is laid down10 in rather general terms by Article 91 TFEU,11 one must also bear in

5

That regulatory framework is rooted in the provisions contained in Arts. 211 and 217-221 UNCLOS, aimed at regulating the conduct – not of private parties but – of states. 6 Regarding operational pollution, see in particular the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 29 December 1972. 7 On the contribution of the IMO and other international institutions to the development of international law preventing and combating marine pollution, see inter alia A.K-J. Tan, Vessel-Source Marine Pollution. The Law and Politics of International Regulation, Cambridge University Press, Cambridge, 2006, pp. 75-105 and 347-377; T.A. Mensah, ‘Prevention of Marine Pollution: The Contribution of IMO’, in J. Basedow & U. Magnus (Eds.), Pollution of the Sea – Prevention and Compensation, Springer, Berlin, 2007, pp. 41 et seq. 8 For an overview, see A. Merialdi & S. Trevisanut, ‘La protezione dell’ambiente marino’, in A. Fodella & L. Pineschi (Eds.), Diritto internazionale dell’ambiente, Giappichelli, Turin, 2009, pp. 330-341. With special reference to the Mediterranean see the essays in U. Leanza, Le convenzioni internazionali sulla protezione del Mediterraneo contro l’inquinamento marino, Editoriale Scientifica, Naples, 1992, and T. Scovazzi, ‘The Mediterranean Guidelines for the Determination of Environmental Liability and Compensation: The Negotiations for the Instrument and the Question of Damage That Can Be Compensated’, Max Planck Yearbook of United Nations Law, Vol. 13, 2009, pp. 183 et seq. 9 On a general level, with reference to the European Union’s external action and its binding rules, policy and soft law, see L. Schiano di Pepe, ‘Inquinamento marino da navi e diritto dell’Unione europea: contributo della Corte di giustizia e linee evolutive attuali’, Diritto marittimo, Vol. 112, 2010, pp. 407 et seq. Among monographs, see above all H. Ringbom, The EU Maritime Safety Policy and International Law, Martinus Nijhoff, Leiden, 2008. 10 Among the numerous measures concerning marine pollution stemming from sources other than ships, special attention should be paid to Directive 2008/56/EC of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (OJ L 164 2508.2008, p. 19). 11 “[T]he European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, lay down: […] c) measures to improve transport safety.”

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13  Civil Liability, Shipping and Marine Pollution: A Critical Appraisal the mind the three ‘Erika packages’,12 the first from 2001,13 the second from 200214 and the third from 2009.15 With particular reference to civil liability, the key treaty framework16 consists of the International Convention on Civil Liability for Oil Pollution Damage of 29 November 1969 (CLC) and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage of 18 December 1971 (FUND Convention) setting up the International Oil Pollution Compensation Fund (IOPCF) and associated

12 On those packages, see, above all, A. Del Vecchio, ‘Tutela della safety e misure comunitarie per i trasporti marittimi’, Rivista del diritto della navigazione, No. 1, 2010, pp. 125 et seq. 13 See Directive 2001/105/EC of 19 December 2001, amending Council Directive 94/57/EC on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (OJ L 19 22.01.2002, p. 9), Directive 2001/106/EC of 19 December 2001, amending Council Directive 95/21/EC Council Directive 95/21/EC concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (OJ L 19 22.01. 2002, p. 17); Reg. (EC) 417/2002 of the European Parliament and of the Council of 18 February 2002 on the accelerated phasing-in of double hull or equivalent design requirements for single hull oil tankers (OJ L 64 07. 08.2002, p. 1), which repeals Council Regulation (EC) 2978/94. 14 See Directive 2002/59/EC of 27 June 2002 establishing a Community vessel traffic monitoring and information system (OJ L 208 05.08.2002, p. 10), which repeals Directive 93/75/EEC of 13 September 1993; Reg. (EC) 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (OJ L 208 05.08.2002, p. 1). 15 See the following acts of 23 April 2009: Directive 2009/15/EC of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (OJ L 131 28.05.2009, p. 147); Reg. (EC) 391/2009 of the European Parliament and of the Council of 23 April 2009 on common rules and standards for ship inspection and survey organisations (OJ L 131 28.05.2009, p. 11); Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (OJ L 131 28.05. 2009, p. 57); Directive 2009/17/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2002/59/ EC establishing a Community vessel traffic monitoring and information system (OJ L 131 28.05.2009, p. 101); Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council (OJ L 131 28.05.2009, p. 114); Reg. (EC) 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents (OJ L 131 28.05.2009, p. 24); Directive 2009/20/EC of the European Parliament and of the Council of 23 April 2009 on the Insurance of Shipowners for Maritime Claims (OJ L 131 28.05. 2009, p. 128). On that package see F.M. Torresi, ‘Il Pacchetto “Erika III”: la U.E. rafforza la tutela del patrimonio marino dall’inquinamento’, Il diritto marittimo, 2010, pp. 300 et seq. 16 On the harbingers of that system and the subrogation function played by the private contractual arrangements that are the Tankers Owners Voluntary Agreement Concerning Liability for Oil Pollution (TOVALOP) and the Contract Regarding an Interim Supplement to Tankers Liability for Oil Pollution (CRISTAL) see S.M. Carbone, ‘Strumenti internazionalistici e privatistici-internazionali relativi al risarcimento dei danni provocati da idrocarburi nell’ambiente marino’, in P. Fois (Ed.), Il principio dello sviluppo sostenibile nel diritto internazionale ed europeo dell’ambiente. XI Convegno, Alghero, 16-17 giugno 2006, Editoriale Scientifica, Naples, 2007, pp. 405-407.

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Daniele Gallo amending protocols (especially those adopted in London on 27 November 1992),17 the Convention on the Limitation of Liability for Maritime Claims of 19 November 1976 (including the amending protocol adopted on 2 May 1996), the International Convention on Civil Liability for Bunker Oil Pollution Damage of 23 March 2001 done in London (Bunker Convention) and the 2003 Protocol establishing an International Oil Pollution Compensation Supplementary Fund, also adopted in London on 16 May 2003. The system that has come into being as a result of the above-mentioned conventions18 essentially consists of two large subsystems, the first called CLC/FUND concerning pollution caused by oil (and other persistent oils) transported in oil tankers, the second centred on the Bunker Convention concerning fuel pollution, i.e., pollution deriving from “hydrocarbon mineral oil, including lubricating oil, used or intended to be used for the operation or propulsion of the ship.”19 Thus far we have clarified the current international legislative framework governing marine pollution caused by oil originating from ships. In concentrating now on its evolution in connection with civil liability, by way of demonstration of the numerous and conflicting interests at stake,20 we shall limit ourselves to recalling that within the context of the IMO, the sole reform worthy of note that has actually gone through in these past few years consists of the adoption – on 20 April 2012 at the time of the 99th session of the IMO’s Legal Committee – of a series of amendments to the 1996 Protocol to the 1976 Convention on the Limitation of Liability for Maritime Claims whereby a change was approved to the previous limits to liability for shipowners laid down in Article 6, paragraph 1, subparagraph b), of that Convention.21 A revision to ensure that the ‘new’ limits – that will enter into force on 8 June 2015 under the tacit consent procedure – are raised to guarantee proper compensation for the costs arising out of clean-up operations and the loss suffered as the result of oil spills in the sea.22 There would not appear to be any further prospects for reform in relation to either the CLC/FUND system or the Bunker Convention, at least in the short term anyway. In line with the points made in the preceding Section 13.1, it is stressed that the following analysis relates solely to the most problematic issues in connection with the CLC/FUND

17 Unless otherwise specified, reference herein to the CLC and the FUND Convention is to the conventions as amended by the 1992 protocols. 18 Save for the 1976 Convention on the Limitation of Liability for Maritime Claims concerning just in part the regulation of marine pollution caused by ships. 19 See Art. 1, para. 5, of the Bunker Convention. 20 On this point, see infra the following sections. 21 See . 22 On the origin of those changes see N.A. Martínez Gutiérrez, ‘The Bunkers Convention and the Shipowner’s Right to Limit Liability’, Journal of Maritime Law and Commerce, Vol. 43, 2012, pp. 252-253. On their different scope depending on whether fuel or oil pollution is involved, see Ibid., Limitation of Liability in International Maritime Conventions. The Relationship between Global Limitation Conventions and Particular Liability Regimes, Routledge, London, 2011, pp. 210-216.

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13  Civil Liability, Shipping and Marine Pollution: A Critical Appraisal system, i.e., marine pollution caused by the spilling of hydrocarbons – in particular crude oil – transported by oil tankers. 13.3 Scope of Application Ratione Personae and Geographically As regards the scope of application ratione personae of the CLC and the FUND Convention, it should be clarified that the number of states involved in one way or another in transporting oil by sea who have ratified the CLC and the FUND Convention is particularly high. This number has increased over the years if one considers that currently 130 countries are parties to the CLC as amended by the 1992 Protocol in force from 21 November 2008 compared with the 53 that were parties to the CLC as amended by the 1976 Protocol and to 36 that were parties to the initial CLC, while 111 countries are parties to the FUND Convention as amended by the 1992 Protocol in force from 30 May 1996 compared with the 31 that were parties to the FUND Convention as amended by the 1976 Protocol.23 Despite the high number of ratifications a fundamental weakness to the effectiveness of CLC/FUND system lies in the fact that the United States – the main importer of oil transported by sea – has never adhered to either the CLC or the FUND Convention, having chosen to go it alone through the enactment on 18 August 1990 – as a reaction to the Exxon Valdez accident that occurred on 24 March 1989 off the coast of Alaska – of the Oil Pollution Act (OPA) containing stricter rules than those laid down in the relevant international conventions.24 On the contrary, one can easily understand how adhesion by the United States could help to significantly increase the monetary limits to civil liability set for the oil industry on the basis of the FUND mechanism, thereby resolving a particularly serious problem raised by many states, scholars and public opinion.25 As regards the geographic scope of application of the CLC/FUND system, the amendments introduced through the 1992 protocols expanding the breadth of the CLC and the FUND Convention are very welcome. In fact, originally the conventions applied only to pollution damage that occurred in the territorial waters of the state parties. Now the system extends also to damage that occurs in the exclusive economic zone or within 200 nautical miles from the baseline if that zone has not been established by the state, with the important consequence that de facto any damage occurring within 200 miles will be covered by the CLC/FUND rules. Article II, subparagraphs a.i) and a.ii), of the CLC provides that 23 However, 28 states are parties to the CLC Convention as amended by the 2003 Protocol. 24 On the US legal system see C. Wu, Pollution From the Carriage of Oil by Sea: Liability and Compensation, Kluwer Law International, The Hague, 1996, pp. 216-275 and, more recently, C.B. Anderson, ‘Marine Pollution and the “Polluter Pays” Principle: Should the Polluter Also Pay Punitive Damages?’, Journal of Maritime Law and Commerce, Vol. 43, 2012, pp. 43 et seq. 25 On this point see infra Section Section 13.5 as well as the article by M. Comenale Pinto in this volume.

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Daniele Gallo [t]his Convention shall apply exclusively: a) to pollution damage caused: i) in the territory, including the territorial sea, of a Contracting State, and ii) in the exclusive economic zone of a Contracting State, established in accordance with international law, or, if a Contracting State has not established such a zone, in an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured. Of the same tenor is Article 3, subparagraphs a.i) and a.ii), of the FUND Convention. The provisions must be read in the sense that the sole linking criterion for the application of the CLC/FUND rules is that the damage have occurred in the territorial sea or the exclusive economic zone of a contracting state irrespective of the fact that the stretch of water where the accident causing the pollution happened might be the high seas or the territorial sea of a state that is not party to the two conventions in question and irrespective of the flag flown by the ship from which the damage originates.26 Despite the broad territorial scope of the CLC/FUND rules, it must be stressed that the two conventions exhibit a problematic aspect as regards their geographic sphere of application in addition to their scope of application ratione personae as mentioned before. In this regard, one can note a dyscrasia between what the conventions state in relation to the adoption of preventative measures aimed at impeding or minimising the oil pollution damage,27 whose cost falls within the concept of damage in Articles I, paragraph 6, and II of the CLC and Articles I, paragraph 2, and III of the FUND Convention – as amended by the 1992 protocols – even when those measures are taken on the high seas, and what the conventions impliedly state in relation to damage that occurs on the high seas or in the territorial sea belonging to a state that is not a party to the two conventions regardless of whether the ship is flying the flag of a contracting state. From the interpretation of the CLC and the FUND Convention, one can deduce that the damage in question falls outside the scope28 of the two agreements.29 26 To cite, M. Comenale Pinto, La responsabilità per inquinamento da idrocarburi nel sistema della C.L.C. 1969, Cedam, Padua, 1993, pp. 41-42. 27 On the scope of the two conventions from the standpoint of the damage caused by implementing preventative measures, see infra Section Section 13.6. 28 International law on oil pollution damage in force at the time was already inadequate from the standpoint of failing to treat pollution of the open seas as an international tort, G. Tesauro, L’inquinamento marino nel diritto internazionale, Giuffrè, Milan, 1971, p. 69. 29 Fully or partially depending in whether it occurred ‘exclusively’ or ‘also’ on the high seas (or in a maritime area belonging to a state that is not a party to the Convention). In cases of damage that contemporaneously occurs in maritime areas that in one way or another belong to one or more contracting states and on the high seas (or in a maritime area belonging to a state that is not a party to the Convention), the portion of the damage that is compensable must evidently be just that which has occurred in the stretch of sea under the sovereignty of a contracting state. On this point see R.M. M’Gonigle & M.A. Zacher, Pollution, Politics, and International Law. Tankers at Sea, University of California Press, Berkeley, 1979, pp. 256-314.

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13  Civil Liability, Shipping and Marine Pollution: A Critical Appraisal The solution to an accident excluded from the scope of the CLC/FUND system is thus a matter left to voluntary agreements, often conditioned by the fact that the shipowner may not have sufficient resources to make good the damage and by the further fact that the state involved in the accident may not have an appropriate administrative/judicial/legislative system through which affording the victims the chance to obtain effective compensation: a solution that very much depends on the intervention and determination of P&I Clubs.30 This gives rise to two risks: first, the occurrence of serious asymmetries as regards the level, manner and timing of the agreed compensation and, secondly, the absence of effective instruments do dissuade and deter the various players involved transoceanic traffic, i.e., involving mainly areas not subject to the sovereignty of any state in particular.31 Finally, as regards the objective application of the CLC/FUND system, postponing to Section 13.6 a consideration of what oil pollution damage is compensable, for now suffice it to stress that pursuant to Article I, paragraph 5, of the CLC, and the Article 1, paragraph 2, of the FUND Convention, the notion of oil covers both oil carried on board a ship as cargo and that in the ‘bunkers of such a ship’. Secondly, as regards the definition of ‘ship’ for the purposes of the CLC/FUND system, the key point here is that the word in question is not defined in UNCLOS. On the other hand, international law in general offers many definitions of a technical nature to be found in treaties concerning various aspects of the law of the sea. With reference to the CLC/FUND system,32 Article I, paragraph 1, of the CLC in its initial 1969 version provided that ship meant “any sea-going vessel and any seaborne craft of any type whatsoever, actually carrying oil in bulk as cargo.” In the current version of the CLC as amended by the 1992 Protocol, the notion of ship, valid also for the FUND Convention by reason of the incorporation by reference contained in Article 1, paragraph 2, is further broadened since for CLC purposes one must consider not just the vessel which at the time of the accident is carrying oil in bulk as cargo but also any craft that is “constructed or adapted for the carriage of oil in bulk as cargo” on condition that it is actually carrying oil

30 The Protection and Indemnity Insurance Clubs are non-profit mutual insurance clubs that provide protection and indemnity for their member shipowners. On the nexus that exists between pollution that occurs in maritime areas outside the scope of conventions and P&I Clubs, see the thought provoking reflections of S.M. Carbone, ‘La responsabilità civile per danni da inquinamento marino da idrocarburi’, Enciclopedia Treccani degli idrocarburi, 2007, p. 527. 31 On this point see, amongst others, C.M. De La Rue & C.B. Anderson, Shipping and the Environment, Informa Law, London, 1998, p. 77. In this regard, Wu 1996, p. 132, sets out the various proposals that were made during the negotiations leading up to the CLC, aimed at extending the geographic scope of application of this and other conventions on ship-source marine pollution to the highs seas, with special reference to the rules governing civil liability and compensation. 32 On this point and for detailed analysis of the various notions of ship, see R. Quadri, Le navi private nel diritto internazionale, Giuffrè, Milan, 1939; T. Treves, ‘Navigation’, in R.-J. Dupuy & D. Vignes (Eds.), A Handbook on the New Law of the Sea, Vol. 2, Martinus Nijhoff, Dordrecht, 1991, pp. 835 et seq.; F. Lucchini, ‘Le n ­ avire et les navires’, in Société Française pour le Droit International (Ed.), Le navire et le droit international, ­Pedone, Paris, 1992, pp. 11 et seq. Among more recent works, see Schiano di Pepe 2010, pp. 69-83.

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Daniele Gallo in bulk as cargo at the time of the accident or that it has already delivered it and the accident occurs following such carriage unless in this latter it is proved that it has no residues of such carriage of oil in bulk aboard.33 Therefore, the CLC/FUND system applies solely to spills of oil transported in bulk by oil tankers.34 For the purposes of that system, ships do not include craft owned by sovereign states insofar as they are not used for commercial ends or craft that are not used for the transport of oil. This holds true also for passenger ships or ships used for the transport of other materials even though the tanks of those ships generally contain considerable quantities of oil that can be very polluting. This is a reasonable solution given that it is one thing, as is currently the case, for the oil industry to have to contribute to paying compensation in the event of an accident involving an oil tanker but it is another thing for that industry to have to foot the bill for damage caused by craft of another nature. The problem of a risky deregulation in relation to pollution caused by some ships excluded from the scope of the CLC would appear to have been solved at this stage with the entry into force of the Bunker Convention, which, on the basis of liability and compensation principles and criteria analogous to these underpinning the CLC/FUND system,35 applies precisely to oil spills originating from ships not used for the carriage of oil. It is a very significant development because pollution caused by oil used for the propulsion and navigation of ships can in some instances be worse than that caused by crude oil in view of how highly resistant fuel oil can be to cleaning agents used following a spill. 13.4 The Channelling of Strict Liability on Shipowners The relationship between the principle of ‘the polluter pays’ and civil liability for shipsource marine pollution raises a key question regarding who exactly is to be considered as the polluter.36 This is not a simple task given that the persons involved in one way or another in marine pollution are many: the ship’s operator, the captain, the crew, the port authorities, the shipowner and the owner of the cargo (oil). The CLC makes a net choice: the sole person liable is the shipowner and hence it is the latter who has to bear the burden of paying damages. A burden, however, that the shipowner bears with the owners of 33 “[…] provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk as cargo and during any voyage following such carriage unless it is proved that it has no residues of such carriage of oil in bulk aboard.” 34 See, for all, De La Rue & Anderson 1998, pp. 79-84. 35 They are similar but not identical principles and criteria as demonstrated by the fact that the channelling of liability within the framework of the Bunker Convention extends pursuant to Art. 3, para. 2, not only to the owner but also to the operator, captain and/or manager of the ship. On this point and in general on the Bunker Convention, see in the vast literature C. Wu, ‘Liability and Compensation for Bunker Pollution’, Journal of Maritime Law and Commerce, 2002, pp. 553 et seq.; Martínez Gutiérrez 2012. 36 On that relationship from the standpoint of the limits to damages under the CLC/FUND system, see infra Section 13.5.

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13  Civil Liability, Shipping and Marine Pollution: A Critical Appraisal the transported oil, in other words the oil industry, in particular the companies importing the oil whose names are communicated directly by the contracting states to the IOPCF.37 The channelling of civil liability to just the shipowner – save for the subsequent contribution made by IOPCF and ultimately borne by the oil industry – even when it is reasonable to conclude that others had a hand in the pollution demonstrates that ‘the polluter pays’ principle in cases of marine pollution applies only where it is actually the shipowner’s negligence that causes the damage.38 In all other cases of oils spills at sea caused by the conduct of others, the application of the principle is solely theoretical. A situation that is even more significant if one considers that ‘the polluter pays’ principle is one of international environmental laws, which although not based on customary law39 is binding in nature and of general application in many regional legal systems like that of the European Union.40 It comes as no surprise therefore that from this standpoint the European Commission has always been strongly critical of the CLC, advocating that [t]here is a need for a better balance between the responsibility of the players involved in the transport of oil by sea and their exposure to liability and for stricter application of the polluter pays principle.41 As for the legal nature of the liability of the shipowner, it is a form of strict liability irrespective of any wilful misconduct or negligence on the part of the shipowner who caused the accident: what counts is that the pollution was caused by the oil that the owner’s ship was transporting. Although liability is strict, it is not absolute. In fact, the CLC system recognizes some exceptional circumstances capable of exonerating the shipowner from liability when the damage is caused by act of war, hostilities, civil war, insurrection or a natural phenomenon

37 On the conditions for recourse to the IOPCF under the FUND Convention, see also – in addition to the article by M. Comenale Pinto in this volume – infra Section Section 13.5. 38 On that question, see the observations of P. Birnie, A. Boyle & C. Redgwell, International Law and the Environment, Oxford University Press, Oxford, 2010, pp. 432-433, and B. Vanheule, ‘Oil Pollution: The International Liability and Compensation Regime’, European Transport Law, Vol. 38, 2003, p. 563. 39 On that question see A. Fodella, ‘I principi generali’, in Fodella & Pineschi 2009, p. 128 and D. Bodansky, The Art and Craft of International Environmental Law, Harvard University Press, Cambridge, MA, 2010, pp. 69, 194. On the constituent elements of ‘the polluter pays’ principle see P. Schwartz, ‘The Polluter-Pays Principle’, in M. Fitzmaurice, D.M. Ong & P. Merkouris (Eds.), Research Handbook on International Environmental Law, Elgar, Cheltenham, 2010, pp. 243 et seq. 40 On the status and scope of the principle in European Union law see, amongst many, N. de Sadeleer, Environmental Principles. From Political Slogans to Legal Rules, Oxford University Press, Oxford, 2002, and A. Bleeker, ‘Does the Polluter Pay? The Polluter-Pays Principle in the Case Law of the European Court of Justice’, European Energy and Environmental Law Review, Vol. 18, 2009, pp. 289 et seq. 41 See, in particular, Section II.2 of the Communication of 3 December 2002 from the Commission to the European Parliament and to the Council on “Improving Safety at Sea in Response to the Prestige Accident” (COM(2002) 681 final).

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Daniele Gallo of an exceptional, inevitable and irresistible character,42 by an act or omission done with intent to cause damage by a third party,43 by the negligence or other wrongful act of any government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function,44 by intentional or negligent acts or omissions on the part of the person who suffered the damage.45 However, it is very difficult that such circumstances can operate in practice to exclude attributing the shipowner with responsibility for the event causing the damage: the mere existence of one of the above exceptional circumstances is not sufficient in itself because it is still necessary that the shipowner proves the circumstance in question had an impact that was such as to definitely break the causal nexus between the dangerous business of transporting oil and the damage that occurred. Therefore, if the circumstance was a contributing factor, it cannot be invoked with the consequence that the burden of proof incumbent on the owner is so heavy as to make the latter always liable under the CLC. In the exceedingly rare cases in which liability is excluded, the IOPCF is still obliged to pay out compensation except in the following instances: if the damage is caused by an act of war (or equivalent actions), if the damage occurred as a result of the damaged party’s own behaviour or if the oil escapes or is discharged from a warship or other ship owned or operated by a state and used for non-commercial purposes.46 The problem is that through its channelling of liability, the CLC seems to afford de facto a sort of immunity to all of the other key players, who, accepting the risks associated with the business of transporting oil, in one way or another are involved in the carrying on of that business including, for example, the charterer, operator, manager or crew of the ship. It is true that both the CLC, in Article III, paragraph 5,47 and the FUND Convention, in Article 9, paragraphs 1 and 2,48 allow recourse by the shipowner against those persons but certainly any such action – as underlined by some authors49 has to overcome the rigidity, dysfunctions and problems concerning its regulation that are a feature of any domestic legal systems, the length of the relevant See Art. III, para. 2, subpara. a), of the CLC. See Art. III, para. 2, subpara. b), of the CLC. See Art. III, para. 2, subpara. c), of the CLC. See Art. III, para. 3, of the CLC. See Art. 4, paras. 2 and 3, of the FUND Convention. “Nothing in this Convention shall prejudice any right of recourse of the owner against third parties.” “1. Subject to the provisions of Article 5, the Fund shall, in respect of any amount of compensation for pollution damage paid by the Fund in accordance with Article 4, paragraph 1, of this Convention, acquire by subrogation the rights that the person so compensated may enjoy under the Liability Convention against the owner or his guarantor. 2. Nothing in this Convention shall prejudice any right of recourse or subrogation of the Fund against persons other than those referred to in the preceding paragraph. In any event the right of the Fund to subrogation against such person shall not be less favourable than that of an insurer of the person to whom compensation has been paid.” 49 Amongst others Carbone 2007, p. 529. 42 43 44 45 46 47 48

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13  Civil Liability, Shipping and Marine Pollution: A Critical Appraisal court proceedings and their costs and the asymmetrical classification of the legal nature – contractual or tort – of the right of recourse made by many domestic courts. The result is that similar situations can be treated very differently depending on the states involved and, more in general, because of a perilous fragmentation of this subject matter at international level. That de facto immunity granted ex post, after the owner has been sued by the victims of the accident, is bolstered by a de jure immunity for the persons referred to above because the victim cannot sue them directly owing to the provisions of Article III, paragraph 4, of the CLC. Moreover, that list of persons was specifically expanded by the 1992 Protocol to the CLC given that originally Article III, paragraph 3, provided that “[n]o claim for pollution damage under this Convention or otherwise may be made against the servants or agents of the owner” but now provides that no direct claim for compensation for pollution damage may be made against not only the “servants or agents of the owner” but also the following categories of persons: a) the members of the crew; b) the pilot or any other person who, without being a member of the crew, performs services for the ship; c) any charterer (howsoever described, including a bareboat charterer), manager or operator of the ship; d) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority; e) any person taking preventive measures; f) all servants or agents of persons mentioned in subparagraphs (c), (d) and (e). An exception to the ban on bringing direct action does, however, exist given that the CLC, in Article III, paragraph 4, provides that such action may be brought if it is proved that the damage resulting from the acts or omissions of the listed persons was “committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.” The dual circumstance that liability is strict and imposed solely on the shipowner,50 first, ensures that compensation for the damage can be materially obtained without the need for long and painstaking investigations into the shipowner’s behaviour and, secondly, allows one to easily identify the liable party, all to the benefit of the victims.51 Without doubt, the channelling of liability towards just the shipowner under the CLC is informed by pragmatism and a desire for certainty of law. Moreover, it is arguable that such a system is the only one that could actually function because it is the only one that 50 The channelling of strict liability on just the owner of the ship is the key principle of the CLC/FUND system, which has remained unchanged despite the various amending protocols adopted over the years. 51 This latter aspect is dwelt on by M. Jöransson, ‘The 1984 and 1992 Protocols to the Civil Liability Convention 1969 and the Fund Convention 1971’, in C. De La Rue (Ed.), Liability for Damages to the Marine Environment, Lloyds of London, London, 1993, pp. 95-96.

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Daniele Gallo can guarantee, through insurance, that the liable party, i.e., the shipowner, will be solvent to the benefit of the victims of the accident.52 That said, it is not clear why the owner’s strict liability could not also be flanked by another type of liability, not strict but based on the normal criteria for imposing liability in tort in the jurisdiction where the action is sought to be brought, which liability should be borne by the other person,53 they too obliged to take out insurance coverage. Moreover, a dual system of this type (strictly liability for the owner and ‘classic’ liability in tort for others) would not be totally new considering that such a system operated before the entry into force of the 1992 Protocol as demonstrated by the accident of 30 January 1988 involving the Amazzone, flying the Italian flag, which spilt the oil it was transporting into the sea while being managed by a charterer. Well, on that occasion the government of France, off whose coast the oil spill happened, brought an action for damages against both the owner and the charterer before the Court of Cherbourg.54 From the above, one can deduce that the regulatory framework briefly described above suffers from a key defect: the system of channelling liability not only raises the issue of a peculiar and distorted application of ‘the polluter pays’ principle but also tends to deresponsibilize55 all of the other persons involved in the carriage of oil by sea.56 A lack of accountability that is in addition to that enjoyed by the shipowner as a result of the limit on damages under the CLC in connection with the civil liability regime applicable to the shipowner himself57 and that enjoyed by the oil industry because of the joint nature of the payment obligation, i.e., not imposed on the single oil company that owns the spilt oil but ‘diluted’ among of the oil companies associated with the CLC/FUND system.58 In addition to the general points made above, there remain doubts as to two separate though connected specific aspects of the interpretation of the CLC: the first is the scope of application ratione personae of Article III, paragraph 2, subparagraph c), i.e., identification of the situations that can exonerate the shipowner from liability; the second, the scope of 52 A number of authors believe it to be a relatively effective system and a correct compromise between needs of the shipping industry and the oil industry, especially P.M. Dupuy, ‘La préservation du milieu marin’, in R.J. Dupuy & D. Vignes, Traité du nouveau Droit de la mer, Pedone, Paris, 1985, p. 983, and Wu 1996, pp. 161-174. 53 Of this view is M. Fauré & W. Hui, ‘The International Regimes for the Compensation of Oil-Pollution Damage: Are They Effective?’, Review of European Community and International Environmental Law, Vol. 12, 2003, p. 250. 54 On this case and in general on the possibility that the operator may be separate from the owner, see Comenale Pinto 1993, pp. 36-38. 55 See the points made by F. Odier, ‘Une nouvelle étape dans le développement de la sécurité maritime: les leçons de l’Erika’, Annuaire du droit de la mer, 1999, Vol. IV, p. 185 and P. Le Couviour, ‘Responsabilité pour pollutions majeures résultant du transport maritime d’hydrocarbures: après l’Erika, le Prestige … L’impératif de responsabilisation’, La Semaine juridique, 18 December 2002, pp. 2270-2271. 56 See the strong criticism of the CLC system expressed by the European Commission, especially in Section II.2 of the above mentioned communication of 3 December 2002. 57 On the lack of accountability as a result of the compensation limits imposed on shipowners, see infra Section 13.5. 58 The term ‘dommage dilué’ is used by D. Stefaniuk, ‘La prévention des marées noires et leur indemnisation. Aspects de droit international et européen’, Journal de droit international, Vol. 130, 2003, p. 1037.

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13  Civil Liability, Shipping and Marine Pollution: A Critical Appraisal application ratione personae of Article III, paragraph 3, subparagraph b), i.e., identification of the persons against whom the victim may not bring a claim for compensation. As regards Article III, paragraph 2, subparagraph c), it is not clear among legal writers or the courts if the concept of “maintenance of […] other navigational aids” covers the updating of nautical charts.59 As regards Article III, paragraph 3, subparagraph b), it is not clear whether a “person who, without being a member of the crew, performs services for the ship” covers the classification society that certified the ship involved in the accident.60 Unlike what was stated in the original version of the CLC, where the sole exception concerned the ‘servants’ or ‘agents’ of the shipowner and was thus could not really include classification societies, the new wording lends itself to various interpretations. An analysis of Article III, paragraph 3, subparagraph b), raises many questions. Is it relevant that a classification society is a legal person (and not a natural one)? Is it relevant that classification societies perform their services on shore (and not on board)? And what should happen if the defect in the ship – that led to the oil spill – not detected by the classification society was already known to the operator and/or the shipowner? The existence of these queries and other interpretative doubts is demonstrated by the fact that in various international fora and likewise in the domestic case law of the CLC members conflicting views have emerged as to whether classification societies are to be included among the persons against whom no direct action may be brought by victims.61 For example, the US courts62 have held on various occasions that classification societies cannot be sued under the CLC/FUND system,63 whereas the French courts have taken a different view.64 Although there can be no doubt that a shipowner could exercise a right

59 Among scholars on this point see De La Rue & Anderson 1998, pp. 89-94. As for case law, in the affirmative see the judgment of the Swedish Supreme Court (Högsta domstolen) of 13 January 1983, in relation to the ­Tsesis accident of 22 October 1977, details of which can be found in F. Berlingieri, ‘La nozione di “maintenance” e di “other navigational aids” nell’ art. 3, n. 3 (c) della Convenzione del 1969 sulla responsabilità per danni da inquinamento’, Il Diritto marittimo, Vol. 86, 1983, pp. 382 et seq., and H. Tiberg, ‘Oil Pollution of the Sea and the Swedish “Tsesis” Decision’, Lloyd’s Maritime and Commercial Law Quarterly, 1984, pp. 218 et seq. 60 On classification societies, examined in light of the ever more frequent privatisation of public functions and from an EU standpoint, see Stefaniuk 2003, pp. 1044-1046. On this point see also the observations points made by J.M. Sobrino Heredia, ‘L’affaire du Prestige: cadre juridique communautaire’, in R. Casado Raigón (Ed.), L’Europe et la mer (pêche, navigation et environnement marin), Bruylant, Brussels, 2005, pp. 235-237. 61 On the liability of classification societies from the perspective of Italian and other law, see M. Comenale Pinto, ‘La responsabilità delle società di classificazione delle navi’, Il Diritto marittimo, Vol. 105, 2003, pp. 3 et seq. 62 For US case law, see, in particular, M. Miller, ‘Liability of Classification Societies From the Perspective of United States Law’, Tulane Maritime Law Journal, Vol. 22, 1997, pp. 75 et seq. 63 With reference to the Prestige ship, see the judgment at first instance in Spain v. American Bureau of Shipping of 12 June 2009 pronounced by the US District Court (New York) and the appeal judgment of 29 August 2012 upholding it issued by the US Court of Appeals for the Second Circuit, New York. As regards the Amoco Cadiz ship see the judgment in the Oil Spill by the Amoco Cadiz Off the Coast of France on March 16, 1978 case of 24 January 1992 issued by the US Court of Appeals for the Seventh Circuit. 64 In relation to the Erika ship see the judgment of the Chambre correctionnelle du Tribunal de grande istance (Paris) of 16 January 2008 and the appeal judgment upholding it issued by the Cour d’appel (Paris) of 30 March 2010.

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Daniele Gallo of recourse against a classification society pursuant to Article III, paragraph 5, of the CLC, a direct action would certainly constitute a more advanced instrument of protection.65 Finally, from the above, one can deduce that the system of channelling liability towards the shipowner, backed up and complemented by (possible and partial) recourse to the IOPCF and the Supplementary Fund still even today raises doubts that need to be resolved going forward so as to ensure, first, that measures to protect against damage are more effective and, secondly, that the victims of accidents, the persons involved in the business of transporting oil and lawyers in the field can all benefit from the certainty of law. 13.5 The Monetary Limits to the Damages Payable by the Shipping and Oil Industries The civil liability of the shipowner as concerned under the CLC is strict66 but limited.67 That means that the shipowner does not have to compensate all the damage caused by the spillage of oil in the sea, but only the portion up to the monetary limit set by the Convention, which has been progressively raised over time through amending protocols. For a long time, that limit was considered as a corollary to the strict nature of the liability of the shipowner, indispensable as such to make an otherwise unlimited burden less onerous. From this standpoint, the principles of strict liability and limited liability are but two sides of the same coin. As regards the FUND Convention, it applies when the CLC cannot provide “a full and adequate protection” to the victims of the accident.68 In particular, it provides that the IOPCF intervenes subsidiarily not only when the shipowner is to be exonerated from liability69 or is financially incapable of meeting its compensation obligations70 but also when the claims made by the various victims arising out of the same accident exceed the ceiling under the CLC.71 From the standpoint of the limitation on liability laid down therein, the CLC/FUND system exhibits a number of key shortcomings despite various amending protocols72 and the ‘activism’ of the IMO Legal Committee73 that seem to render it capable, at least in theory, 65 Contra, stressing the limits and risks associated with making the classification societies in question civilly liable, see F. Siccardi, ‘Pollution Liability and Classification Societies: Is the System a Fair One?’, Il Diritto marittimo, Vol. 107, 2005, pp. 707-710, and N. Lagoni, The Liability of Classification Societies, Springer, Berlin, 2007, pp. 277-327. 66 On this point, see supra Section Section 13.4. 67 On the rationale for a limitation, see, among many, F. Berlingieri, ‘Il sistema internazionale di risarcimento dei danni causati da inquinamento da idrocarburi’, Il Diritto marittimo, Vol. 95, 1992, pp. 3 et seq. 68 See Art. 4 of the FUND Convention. 69 See subpara. a) of Art. 4 of the FUND Convention. 70 See subpara. b) of Art. 4 of the FUND Convention. 71 See subpara. c) of Art. 4 of the FUND Convention. 72 See supra Section 13.2. 73 See in particular the resolution of 18 October 2000, whose legal effects came into force on 1 November 2003.

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13  Civil Liability, Shipping and Marine Pollution: A Critical Appraisal of adequately responding to the need for protection voiced by victims.74 Among them, there is one that has very much come to light, but only recently, that that casts doubt on the very ‘spirit’ of the two conventions: the existence of a limit to compensation not just in the CLC75 but also in the FUND Convention.76 The critical point is that claims for compensation all now tend to exceed both of the limits. Indeed this was the case for some of the oldest accidents like the Amoco Cadiz and the Tanio,77 respectively, on 16 March 1978 and 7 March 1980, and again for some of the more recent accidents like the Erika on 12 December 1999 and the Prestige on 19 November 2002.78 The result is that the underlying approach of the CLC/FUND system (with its compensation limits) risks no longer being able to afford an efficacious and balanced protection to victims. There is another critical point too concerning the absence of any deterrent for the shipowner, especially as regards the checks to be made before and during navigation and transportation of the oil. In this sense, it is a system that by prioritising partial compensation for pollution does not operate on a preventative level since the owner, irrespective of the amount of damage caused by the oil tanker, will pay only up to a certain limit and thus has little incentive to interest himself in conditions under which the ship sails.79 Therefore, a bland application of ‘the polluter pays’80 principle in line with what was already mentioned above regarding the channelling of the liability towards the shipowner.81 The adoption of the Supplementary Fund in 2003 – and the raising of the civil liability limits under the CLC – does not seem to have resolved the problem. There is no evidence of any strengthening of the safety checks and standards in connection with the carriage of oil by sea. Evidently the fact that the Supplementary Fund can safeguard the victims more than before and that the cost of financing it is borne solely by the oil industry lessens the incentive for shipowners to behave responsibly.82 74 E.g., in Section II.2 of its Communication of 3 December 2002 on “Improving Safety at Sea in Response to the Prestige Accident” referred to above, the European Commission pointed out that the system of limited liability is in itself an obstacle to an effective prevention policy and contrasts with ‘the polluter pays’ principle. 75 Currently equal to 89,770,000 special drawing rights, i.e., about USD 135 million. 76 Equal to 300,740,000 special drawing rights, i.e., about USD 385 million. 77 On both, see P. Ivaldi, Inquinamento marino e regole internazionali di responsabilità, Cedam, Padua, 1996, pp. 7-17. 78 On these and other cases, see L. Schiano di Pepe, Inquinamento marino da navi e poteri dello Stato costiero. Diritto internazionale e disciplina comunitaria, Giappichelli, Turin, 2007, pp. 275-286. On the dialectic relations between the shipping and oil industries in light of the Prestige case, see Sobrino Heredia 2005, at pp. 215 et seq. and F. Odier, ‘La position des armateurs après l’accident du Prestige’, in Casado Raigón 2005, pp. 249 et seq. 79 See also the points made by S. Poli, La responsabilità per danni da inquinamento transfrontaliero nel diritto comunitario e internazionale, Giuffrè, Milan, 2006, pp. 120-121. 80 As underlined, e.g., by Fauré & Hui 2003, p. 249. 81 See supra Section 13.4. 82 On the supplementary fund, the fragility of the rules that govern it and the lack of accountability that it leads to for those who charter ships, see Carbone 2007, p. 528.

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Daniele Gallo Support for the logic of the limitation of civil liability that informs the CLC/FUND system can, first, be found in the argument that liability must necessarily be limited so that the shipping industry can actually bear what would otherwise be an unbearable monetary weight of strict liability. Secondly, it should be noted that a pillar of the current system and indeed any other civil liability regime for marine oil pollution is the obligation for shipowners to have insurance coverage.83 It is reasonable to suppose that a further significant and general increase in or indeed elimination of the limits on liability would reduce or even exhaust insurance market resources and force insurers to raise their premiums to the point of making them unsustainable for the shipping industry. The argument is that effective compensation obligations imposed on shipowners must necessarily be accompanied by an efficient insurance system, which in turn relies on the obligations in question being limited. Thirdly, it is worth stressing that the liability limits can be overcome when it is demonstrated that the damage has been caused by the shipowner’s act or omission “committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.”84 The risks of placing an excessive burden on shipowners and upsetting the relations between the insurance market and the shippers that would flow from a radical change to the overall framework of the CLC/FUND system in connection with liability limits criticized above are effectively very high. Less convincing would appear to be the third argument advanced in support of the current system. It is difficult if not impossible for victims to fulfil the burden of proof incumbent on them under Article V, paragraph 2, of the CLC, thereby obtaining not only payment of the entire insured amount from the insurer but also payment of further damages from the shipowner. A particularly heavy burden if one considers that the original version of Article V, paragraph 2, of the CLC stated that it was enough to prove ‘actual fault or privity’ of the owner to exclude the application of the limit on civil liability. A burden that is so stringent as to lead one to suppose that the current version of Article V, paragraph 2, of the CLC does not even cover a situation in which the accident is caused by ‘structural defects in the ship’,85 with the result that although one cannot speak in terms of absolute liability of the shipowner one can speak of the absolute right of limitation of his liability.86 Moreover, it is evident that there is an overlap between Article V, paragraph 2, and Article V, paragraph 8, where it is stated that in cases of ‘wilful misconduct’ of the shipowner, solely the latter and not the insurer will be under a duty to compensate the victim. An overlap that 83 As provided for in Art. VII, para. 1, of the CLC. See also Art. VII, para. 8, providing that victims of pollution may bring a claim for compensation directly against the insurer or other person providing financial security for the owner’s liability for pollution damage. 84 See Art. V, para. 2, of the CLC. 85 To cite, e.g., Carbone 2007, p. 531. 86 This view is also shared by Wu 1996, p. 228.

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13  Civil Liability, Shipping and Marine Pollution: A Critical Appraisal gives rise to grave legal uncertainty, commencing from the problem of identifying who exactly can be sued for compensation by the victims of the accident.87 In conclusion, from the foregoing discussion, one must deduce that the blanket removal of limits to compensation along the lines of the US model in the OPA, though aimed at securing more adequate compensation for the victim, would risk not being economically sustainable for the shipping industry as a whole and would risk upsetting the delicate relationship between the insurance world and the shipowners, which as mentioned above is at the root of the CLC/FUND system. An alternative solution aimed at reconfiguring the system to make it more preventative friendly would be to raise the compensation limits at CLC and/or FUND Convention level. However, that increase would need to be calibrated having regard to the characteristics and condition of the ship. In other words, higher limits should be set for the shipping industry, both for ships that do not meet certain safety standards and for small-sized ships which to date have been able to benefit from very low limits (since under the current CLC system limits are related to tonnage). Limits that are no longer warranted given that a significant percentage of the marine pollution caused nowadays involves small-sized ships. Another solution, in the absence of convention amendments beyond those dating back to 2003 in connection with the establishment of the Supplementary Fund, would be to reinforce the private initiatives already undertaken by P&I Clubs for shipowners like the Small Tanker Oil Pollution Indemnification Agreement (STOPIA) and the Tanker Oil Pollution Indemnification Agreement (TOPIA).88 13.6 The Notion of Compensable Pollution Damage and Relationship with (Pure) Biological Damage to the Environment Pursuant to Article I, paragraph 6, of the CLC, and Article 1, paragraph 2, of the FUND Convention that limits itself to referring back to the CLC, oil pollution damage means both: loss or damage caused outside the ship by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken and “the costs of preventive measures and further loss or damage caused by preventive measures.” 87 See also the points made by Comenale Pinto 1993, pp. 144-145. 88 On those agreements, see supra Section 13.4.

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Daniele Gallo That definition is a step forward – from the standpoint of protection of the marine environment – compared with the notion of compensable damage in the original version of Article I, paragraph 6, of the CLC, which did not contain the words provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken.89 Wording – although couched in terms of a concession – now allows one to include within the concept of compensable damage not only the material damage caused by the oil spill and the further costs, loss and damage caused by whatever preventative measures may have been taken90 but also the environmental damage. There are, however, some negative aspects that need to be highlighted. The first aspect consists in the fact that it is very difficult to understand what costs could fall within the concept of pollution damage and accordingly be compensated as pollution damage.91 The Claims Manual approved by the IOPCF Assembly does not offer much help in this regard and neither do the resolutions adopted by the Executive Committee of IOPCF92 on the interpretation of the CLC and the FUND Convention since the guidelines laid down therein are not particularly clear and, in as much as they are sources of soft law, are not legally binding and accordingly do not have to be observed or recognized by national courts in which damaged parties might bring a lawsuit.93 The second aspect concerns the extension of and limits on the burden of proof incumbent on public authorities and enterprises intending to seek damages for pure economic loss94 other than the physical loss occasioned by the spilling of oil in the sea.95 In particular, there is some uncertainty regarding the nature of the causation criterion to be used so as to be able to bring the economic loss suffered as a result of the accident within the notion of compensable damage. In particular, there is doubt concerning up to what point and in relation to what geographic area one must prove that the loss suffered by a given business96 89 On CLC 1969 from this perspective see the criticism voiced by D.W. Abecassis & R.L. Jarashow, Oil Pollution From Ships: United Kingdom and United States Law and Practice, Stevens & Sons, London, 1985, p. 209. 90 On preventive measures see also supra Section 13.3. 91 See also L. De La Fayette, ‘The Concept of Environmental Damage in International Liability Regimes’, in M. Bowman & A. Boyle (Eds.), Environmental Damage and International and Comparative Law, Oxford University Press, Oxford, 2002, pp. 155-156. 92 See, in particular, Res. 8 of 9 May 2003. 93 On this point, see Poli 2006, pp. 181-182. 94 See, in particular, the accidents involving the Haven oil tanker on 11 April 1991 and the Braer oil tanker on 13 January 1993. 95 On this point, see L. Schiano di Pepe, ‘Inquinamento marino da idrocarburi e “pure economic loss”’, Rivista giuridica dell’ambiente, Vol. 14, 1999, pp. 747 et seq. 96 E.g., fishermen, those who run fish farms and hoteliers who carry on business near a stretch of contaminated sea or beach.

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13  Civil Liability, Shipping and Marine Pollution: A Critical Appraisal depends on pollution caused by an oil spill from a ship. Another issue is whether the damaged party is obliged to demonstrate that it is reasonably impossible for them, in the absence of the by-now-compromised environmental resources, to exploit other ones. The third aspect consists in the fact that the amount of compensation for environmental damage under the CLC is limited to costs of reasonable measures of reinstatement (of the environment) taken97 and the costs stemming from preventative measures taken to prevent or minimize the risks of pollution damage irrespective of whether the oil has actually leaked out of the ship provided always that there is grave and imminent risk of pollution damage.98 In this regard, some misgivings have been raised about the criterion of reasonableness of the preventative measures with a view to identifying the reinstatement measures that can be compensated under the CLC/FUND system.99 What is certain from Article I, paragraph 6, of the CLC, judging by how it is worded, is that there is a risk that damages will not be available in cases of very serious damage to the environment in as much as it would require ‘unreasonable’ costs. In this sense, the Convention is in net contrast, once again,100 with the underlying rationale of ‘the polluter pays’ principle, whose application is indispensable precisely in the case of irreparable damage to the environment. In this regard, some legal writers have correctly pointed out that one solution, already envisaged in the US legal system, would be to oblige the polluter to introduce into the environment the equivalent of irremediably compromised or destroyed resources or to pay damages in respect of the reduced value of the environment.101 The fourth negative aspect is the exclusion of biological harm to the environment in itself, in other words, pure environmental damage that cannot be compensated through adopting reinstatement measures.102 Examples are prejudice to marine biological resources such as a reduction in or elimination of stocks of a fish species or deterioration in water quality. In this way the CLC/FUND system seeks to channel financial resources solely to cover damage, assessable in monetary terms, suffered by the region and communities adversely affected by the oil slick rather than the damage suffered by the environment as such that, on the contrary, adversely affects the international community as a whole.103 That is much E.g., the cleaning up of beaches affected by spilt oil. Poli 2006, p. 184. See the points made by Abecassis & Jarashow 1985, pp. 277 et seq. See supra Sections 13.4 and 13.5. Ibid., p. 184. On this point, See Wu 1996, pp. 336-385 and E.H. Brans, Liability for Damage to Public Natural Resources: Standing, Damage and Damage Assessments, Kluwer Law International, The Hague, 2001, pp. 344-360; contra M. Remond-Gouilloud, ‘Quel avenir pour les Conventions de Bruxelles sur l’indemnisation des marées noires’, Droit maritime français, 1993, pp. 92 et seq. 103 See the accidents involving the Antonio Gramsci oil tanker on 27 February 1979, the Patmos oil tanker on 21 March 1985 and the Nissos Amorgos oil tanker on 28 February 1997, in which the IOPCF excluded damages for physical injuries. For details on the conflicting views expressed by national courts on the one hand and the IOPCF on the other hand regarding compensation for pure environmental damage, see Ivaldi 1996, pp. 309-331. 97 98 99 100 101 102

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Daniele Gallo more serious if one considers the ever-increasing current tendency to view the environment and the sea as ‘common concerns of mankind’. From the above, one can deduce with reference to the notion of compensable pollution damage and ecological damage to the environment that, as was the case for other aspects mentioned before,104 the need to clarify and modify the CLC/FUND system that came to light above all within the IMO itself are well founded and in line with what the European Commission stated in the above mentioned communication of 3 December 2002.105 13.7 Brief Remarks on Originality, Pros and Cons of the Current CLC/ Fund System The originality of civil liability for ship-source marine oil pollution lies in the fact that there is an impressive uniform regulatory framework based on international conventions, which, unlike the majority of international treaties, regulate in detail the rights and obligations of private parties, in particular, shipowners, insurers and oil companies. In fact, it is a subsystem of rules that is the product of the interaction between two separate but connected branches of law such as maritime law and international law: from that stems the synthesis of the origin – public, international and supranational – of the rules on the one hand and the de facto addressees – natural persons but especially legal persons – of the CLC and FUND rules on the other hand, placed at the centre of the international conventions regardless of the fact that they are not international subject of law as such.106 It is precisely this dual legal nature that makes the protection system in question less rigid and more flexible, a system that hinges on the general tendency for the CLC and FUND rules to be self-executing when compared with the general nature of the obligations and abstractness of the rights laid down in treated relating to other branches of international environmental law. Vagueness and abstractness that certainly make the legal frameworks established therein less developed and advanced from the standpoint of environmental protection. This asymmetry between civil liability for marine oil pollution damage and other areas of international environmental law, which highlights how much more concrete and effective the former is compared with the latter, does not exempt the CLC/FUND system from criticism. First and foremost, there are no clearly identified precise obligations on states or indeed no clear description of the sanctions that could be imposed for shortcomings exhibited by 105 See Section II.2 of the Communication. 104 See supra Section Sections 13.3-13.5. 106 The term ‘de facto addressees’ is used by S.M. Carbone, ‘Responsabilità civile e risarcimento dei danni to the ambiente marino nei recenti sviluppi del diritto internazionale e comunitario’, in P.A. Pillitu (Ed.), Scritti in onore di Giorgio Badiali, Aracne, Rome, 2007, p. 63. On the subject see also Ivaldi 1996, pp. 29-30.

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13  Civil Liability, Shipping and Marine Pollution: A Critical Appraisal the public authorities in charge of enforcing and checking observance of the international rules.107 That limit reflects a wish by states not to be held internationally liable for conduct on the part of private parties. Notwithstanding the existence of a specific rule, Article 94 UNCLOS, which in paragraph 3 thereof requires the states parties to adopt, as regards ships flying their flag and in observance of the ‘genuine link’ principle set out in paragraph 1,108 to adopt all measures as are necessary to ensure safety at sea.109 Secondly, as regards the actual content of the CLC/FUND rules, it has been demonstrated that problems, doubts and uncertainties exist not just from the standpoint of the scope of application ratione personae and geographically of the provisions in question but also with reference to the efficacy of the key principles of the CLC/FUND system. In fact, it was stressed that it is necessary to extend the range of persons civilly liable for oil spills at sea so as to accompany the strict liability imposed on the shipowner, with liability in negligence for the other persons involved in one way or another in the carriage of oil by sea. Moreover, some shortcomings in the CLC/FUND system were underlined in relation to the limits on damages that both the shipping industry and the oil industry enjoy. Finally, it highlighted that the notion of compensable pollution damage under the CLC is too restrictive since it excludes biological damage to the environment as such. In conclusion, in order to ensure greater efficacy and effectiveness from the perspective of protecting the marine environment, further steps forward in the near future would be welcome over and above those that have already been taken thanks to the adoption of various protocols amending the CLC/FUND system and setting up the Supplementary Fund in 2003. Steps to be taken within the IMO on the initiative of the states and/or bodies within the organization so as to ensure a more adequate protection of the sea in as much as it is the ‘common concern of mankind’.

107 See European Commission Communication of 22 December 2006 on “Cooperation in the field of accidental or deliberate marine pollution after 2007” (COM(2006) 863 final). 108 1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag […] 3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea […]. 109 On this point and the importance of the rule as a tool that is potentially helpful in responding to the pernicious consequences of globalisation and the ensuing multiplication of flags of convenience, see T. Scovazzi, ‘La responsabilità internazionale per violazione di norme relative alla protezione dell’ ambiente’, in Fodella & Pineschi 2009, pp. 198-200.

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14

The Mechanism of Funds for the Compensation of Maritime Environmental Damage

Michele M. Comenale Pinto* 14.1 The Context Pollution caused by the spillage of oil transported in bulk has been one of the most interesting areas of experimentation in theories of civil liability,1 in a context that has witnessed the stratification of various steps taken by uniform law bodies alongside initiatives adopted by those involved in the transportation business in order to ensure that there is some compensation beyond what would otherwise have been possible relying on traditional maritime principles having regard in particular to the regime governing the limitation of maritime claims.2 * 1 2

Full Professor of Navigation Law, University of Sassari. See, in general (taking as his cue G. Romanelli, I danni da aeromobile sulla superficie, UTET, Milan, 1970, pp. 1 et seq.), C.M. Bianca, ‘La responsabilità aeronautica: convergenze e divergenze rispetto ai principi civilistici’, Diritto dei trasporti, 1992, p. 1. Prior to the adoption of the International Convention on Civil Liability for Oil Pollution Damage (Liability Convention or CLC), there were complaints about the inadequacy of the general rules on the limitation of maritime claims applicable also to the consequences of an oil spill and in general the inadequacy of the rules governing oil pollution from ships (bearing in mind the Torrey Canyon case, see L. Juda, ‘IMCO and the Regulation of Ocean Pollution From Ships’, International Comparative Law Quarterly, Vol. 26, 2007, p. 558; I. Corbier, ‘Les créances non limitables’, Droit maritime français, Vol. 52, 2002, pp. 1038, 1043. In general, see E. du Pontavice, La pollution des mers par les hidrocarbures, Librairie générale de droit et de jurisprudence, Paris, 1968). The adoption of the Liability Convention implied a derogation from the International Convention relating to the Limitation of the Liability of Owners of Sea-Going Ships, adopted at Brussels on 10 October 1957. In effect, the new rules significantly eroded the traditional jurisdiction of the flag State (C. Douay, ‘Les sanctions en matière de pollution dans la zone économique exclusive’, Droit maritime français, Vol. 36, 1983, pp. 3, 58). However, the entry into force of the CLC regime did not resolve the problem associated with ships flying the flag of states that had remained outside the system: D.W. Abecassis, ‘The Framework of Liability in International Law’, in D.W. Abecassis & R.L. Jarashow (Eds.), Oil Pollution From Ships. International, United Kingdom and United States Law and Practice, 2nd edn, Stevens, London, 1985, pp. 173, 185. Incidentally, it is also worth adding that the question of the applicability of general rules on the limitation of maritime claims for oil pollution damage that fall within the CLC regime was addressed in the more recent Convention on Limitation of Liability for Maritime Claims Convention, adopted at London on 19 November 1976 (so-called ‘LLMC’, as subsequently amended by the London Protocol of 2 May 1996), which expressly excepts such damage from the benefit of the limitation (Art. 3, sub para. b). Moreover, Italy has not ratified the LLMC in its original version, but has continued to apply in general the rules laid down in Art. 275 of the Italian Navigation Code, which derogates from the CLC system. By Law No. 20 of 23 December 2009, ratification of the LLMC as per its 1996 text was authorized, but to date, the relevant formal instrument to that effect does not appear to have been deposited.

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Michele M. Comenale Pinto The step taken by the uniform law body was, to a large extent, in response to the concerns that public opinion had over the increase of the maritime carriage of oil in bulk, while various geopolitical factors favoured the construction of giant tanker ships, laying the foundations for an increase in the number and size of accidents and the ensuing phenomena of pollution caused by oil spills at sea.3 The question is certainly of interest to Italy, a manufacturing country that continues to depend significantly on maritime traffic, especially when it comes to obtaining energy supplies precisely through the import of oil by sea.4 On the basis of such factors, public around the world became worried about the possible consequences that could flow from transporting oil by sea, a necessity for our economic systems. In particular, the accident that involved the Torrey Canyon oil tanker off the coast of Cornwall in 19675 led the then Inter-Governmental Maritime Consultative Organization (IMCO), now the International Maritime Organization (IMO),6 to undertake, in conjunction with the Comité Maritime International (CMI),7 an initiative that would then lead to the adoption of the International Convention on Civil Liability for Oil Pollution Damage and the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, also adopted at Brussels on 29 November 1969.8 While much attention has been paid to prevention, which has led to the adoption of measures that – especially in the sector concerned here characterized by ample recourse to outsourcing of the transportation phase by the oil companies, who ever more frequently 3 4

5

6 7 8

See M. M’Gonigle & M.W. Zacher, Pollution, Politics, and International Law: Tankers at Sea, University of California Press, Berkeley, 1981, p. 348. On the basis of the statistics set out in the Annual Report 2011 of the International Oil Pollution Compensation Fund (an entity about which more will be said later), Italy is currently ranked fourth among the importer states parties that are members of the fund set up by the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, adopted at Brussels on 18 December 1971, as amended by the London Protocol of 27 November 1992 (however, the industrialised countries do not include the United States, which in absolute terms is the world’s largest importer of oil by sea). The ship flew the Liberian flag. The literature on the whole affair is particularly vast. See among many: J.-P. Quéneudec, ‘L’incidence de l’affaire du Torrey Canyon sur le droit de la mer’, Annuaire Français de Droit International, Vol. 14, 1968, p. 701; du Pontavice 1968; G. Kojanec, ‘Equilibre écologique et pollution de la mer; données d’une réglementation internationale’, La Comunità internazionale, Vol. 26, 1971, p. 384; J.L. Azcarraga y Bustamante, ‘Algunas reflexiones en torno al siniestro del Torrey-Canyon’, Anuario HispanoLuso Americano de Derecho Internacional, Vol. 3, 1967, p. 165. On the role of the IMO, in general, see G. Librando, ‘I primi trent’anni di attività dell’I.M.O.’, Diritto dei trasporti, 1990, p. 127; S. Zunarelli, ‘Brevi considerazioni in merito alla attività di produzione normativa dell’International Maritime Organization’, Trasporti, Vol. 81, 2000, p. 35. T. Mensah, ‘The Co-operation Between the Comité Maritime International (CMI) and the International Maritime Organization (IMO) in the Development of Uniform International Maritime Law’, Il diritto marittimo, Vol. 101, 1999, p. 153. See W. Pentassuglia, ‘L’intervento antiinquinamento su navi straniere in alto mare’, Rivista giuridica dell’ ambiente, Vol. 8, 1993, p. 135. With specific reference to the questions that that point raised in the case, see M. Spinedi, ‘Problemi di diritto internazionale sollevati dal naufragio della “Torrey Canyon”’, Rivista di diritto internazionale, Vol. 50, 1967, p. 653.

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14  The Mechanism of Funds for the Compensation of Maritime engage one-ship owners (a trend that would appear to be bijectively linked to the tightening of the rules on liability and maritime safety),9 and to flags of convenience10 – appear to be adequate (like checks by the port country, whose implications are analyzed in this book by Prof. Elda Turco Bulgherini), there are other measures whose effectiveness leaves much to be desired (I am alluding here to the restrictions on single-hull oil tankers).11 I will focus my attention on a specific aspect of the liability scheme, that of the compensation funds, which is part of the general context adequately addressed by Daniele Gallo. 14.2 The CLC System In my view, it is necessary to commence from the statement that the model of liability actually adopted consists of the CLC system, made up of the International Convention on Civil Liability for Oil Pollution Damage, adopted at Brussels on 29 November 1969 (better known as the Liability Convention), and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, adopted at Brussels, on 18 December 1971 (better known as the Fund Convention), and their respective amending protocols.12 The fund set up further to the On that phenomenon see L. Sisto, ‘La tendenza delle grandi imprese petrolifere alla dismissione delle flotte e le implicazioni dell’atomizzazione dell’armamento cisterniero’, in A. Zanelli (Ed.), Inquinamento del mare e sicurezza della navigazione, atti del convegno Castello di Santa Severina del 14-15 giugno 2002, Editoriale Scientifica, Naples, 2004, p. 49; A. Recalde, ‘Derecho de sociedades y empresas navieras: cuestiones en materia de la responsabilidad civil’, Revista de derecho del transporte, Vol. 1, 2008, pp. 9, 14 et seq. 10 A phenomenon due in part to the search for the most advantageous tax regimes and in part to an attempt to circumvent maritime safety controls, traditionally a matter for the flag country: see, in general, F. Lauria, ‘Bandiere ombra e situazioni giuridiche di comodo’, Trasporti, Vol. 11, 1977, p. 3; M. Castillo Daudí, ‘A propósito de las banderas de conveniencia: nacionalidad del buque y obligaciones del Estado del pabellón’, Anuario de Derecho Marítimo, Vol. 21, 2004, p. 101; S. Zunarelli, ‘Le bandiere di convenienza ed il progetto Unctad sulle condizioni di immatricolazione delle navi’, Studi marittimi, Vol. 27, 1986, p. 65. The failure, in terms of ratification, of the United Nations Convention on Conditions for Registration of Ships, done in Geneva on 7 February 1986 (about which see S. Zunarelli, ‘La convenzione di Ginevra sulle condizioni per la registrazione delle navi’, Il diritto marittimo, Vol. 88, 1986, p. 853), has made it necessary to overcome some of the traditional dogmas of maritime law such as the principle that the flag country has jurisdiction over safety checks in favour of the principle that they are a matter for the port country. Moreover, precisely in relation to liability for oil pollution, there has been an erosion of the link with the law of the flag country given that the CLC system applies to damage that occurs on land and in territorial waters (and on the basis of the London Protocols of 1992, also in an exclusive economic zone) irrespective of the nationality of the ship from which the pollution comes. 11 See, in this regard, M.M. Comenale Pinto, ‘Contro il rischio da inquinamento ambientale da idrocarburi: il doppio scafo’, Giustizia civile, Vol. 55, part II, 2005, p. 161. 12 By now there is ample literature on the system. Limiting oneself to general overviews, mentions can be made to: Abecassis & Jarashow 1985; M.M. Comenale Pinto, La responsabilità per inquinamento da idrocarburi nel sistema della C.L.C. 1969, Cedam, Padua, 1993; M.I. Huerta Viesca & D. Rodríguez Ruiz de Villa, Responsabilidad civil por contaminación marina por vertido de hidrocarburos. A propósito del Prestige, Servicio de Publicaciones de la Universidad de Oviedo, Oviedo, 2004; C. Wu, La pollution du fait du transport maritime des hydrocarbures: Responsabilité et indemnisation des dommages, Pédone, Paris, 1994. 9

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Michele M. Comenale Pinto above-mentioned convention is the International Oil Pollution Compensation Fund (better known by its acronym IOPCF).13 The system has garnered considerable success in terms of ratification and also as a model adopted in other uniform law schemes, both in the maritime field, in particular, as regards the damage that can be caused by pollution stemming from the carriage in bulk of hazardous and noxious substances other than oil by sea, and in other fields, e.g., modelled on the system is the liability provided for in the recent (but not yet in force) set of rules governing liability for damage to third parties on land resulting from unlawful interference envisaged by a specific convention adopted at Montreal on 2 May 1999.14 However, the United States has remained outside the CLC system despite the fact that it is main destination in the world for maritime traffic transporting oil and which, in the wake of the Exxon Valdez oil spill off the coast of Alaska, developed its own set of rules governing liability for oil pollution damage, the Oil Pollution Act.15 14.3 Strict Liability and the ‘Polluter Pays’ Principle Any evaluation of the effectiveness of the system must necessarily entail a consideration of the scope and implications of the ‘polluter pays’ principle, repeatedly established at international level16 and at the level of what is today the European Union,17 and the extent to which it is to be understood – as widespread and authoritative scholarly opinion 13 On whose role (and that of the funds established along the same lines following subsequent amending protocols): see M. Jacobsson, ‘La répartition des dommages de pollution marine et le rôle du Fipol’, Droit maritime francais, 1989, p. 619; M.M. Comenale Pinto, ‘Il meccanismo dei fondi e la proposta di istituzione di un fondo europeo di terzo livello’, Rivista giuridica dell’ambiente, Vol. 18, 2003, p. 197; R.M. Malkassian, ‘Le fonds international d’indemnisation pour les dommages dus a la pollution par les hydrocarbures et le calcul des reparations’, Revue belge de droit International, 1981, p. 429. 14 It is one of the two conventions opened for signature on 2 May 2009, adopted following the terrorist attacks of 11 September 2001 and not yet in force (Convention on Compensation for Damage to Third Parties Resulting From Acts of Unlawful Interference Involving Aircraft). For a critical evaluation on the suitability of the solutions adopted, see S. Busti, ‘La tormentata costruzione della nuova normativa internazionaluniforme sul danno a terzi dal volo di aeromobile: tanta fatica per nulla?’, Rivista di diritto della navigazione, Vol. 40, 2011, pp. 500, 536 et seq. 15 On this, see A. Merialdi, ‘La recente legislazione degli Stati Uniti sull’inquinamento marino da idrocarburi (Oil Pollution Act, 1990)’, Rivista giuridica dell’ambiente, Vol. 7, 1992, p. 957. For a comparison between the two regimes, see I. Kim, ‘A Comparison Between the International and US Regimes Regulating Oil Pollution Liability and Compensation’, Marine Policy, Vol. 27, 2003, p. 265. 16 F.M. Palombini, ‘Il significato del principio “chi inquina paga” nel diritto internazionale’, Rivista giuridica dell’ambiente, Vol. 18, 2003, p. 871; L. Butti, ‘L’ordinamento italiano ed il principio “chi inquina paga”’, Contratto e impresa, Vol. 6, 1990, p. 56. 17 On this, see M. Meli, ‘Le origini del principio “chi inquina paga” e il suo accoglimento da parte della Comunità europea’, Rivista giuridica dell’ambiente, Vol. 4, 1989, p. 217. See also V. Parisio, ‘Caratteri e rilevanza del principio comunitario “chi inquina paga” nell’ordinamento nazionale’, Foro Amministrativo: Consiglio di Stato, vol 8, 2009, p. 2711; B. Pozzo, Danno ambientale ed imputazione della responsabilità. Esperienze giuridiche a confronto, Giuffrè, Milan, 1996, pp. 283 et seq.

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14  The Mechanism of Funds for the Compensation of Maritime advocates18 – as a parameter to be used to shape the civil liability regimes that govern environmental liability. If one accepts that view, among the various grounds for making one accountable, strict liability is the one that is potentially best suited to giving concrete effect to the polluter pays principle. Indeed, bearing in mind that the CLC system makes provision for owner’s liability irrespective of any finding of intention or negligence, I myself at the time maintained that it was an expression of the polluter pays principle.19 However, reflecting on the specific mechanism for imposing liability as per the main 1969 convention (CLC 1969) and, above all, as per its subsequent evolution with public and private funds called upon to intervene as a result of the overlapping of various protocols and agreements between the organizations of the numerous operators involved in the traffic in question, one can now legitimately question whether the final effect of the application of the system really responds to the aims underlying the polluter pays formula. The same question can be raised also for the other sets of rules for imposing liability that to varying degrees have been inspired,20 in the matter of liability for environmental damage, by the to the CLC regime like the HNS Convention21 and the Bunker Convention.22 18 See, in this regard, S. Patti, La tutela civile dell’ambiente, Cedam, Padua, 1979, p. 179; C. Petrini, Bioetica, ambiente, rischio: evidenze, problematicità, documenti istituzionali nel mondo, Rubettino, Soveria Mandelli, 2003, pp. 131 et seq.; F. Pellegrino, Sviluppo sostenibile dei trasporti marittimi comunitari, Giuffrè, Milan, 2010, p. 60. It has also been stressed that an environmental protection model founded solely on the ‘polluter pays’ principle is inadequate: L. Francario, Danni ambientali e tutela civile, Jovene, Naples, 1990, pp. 16 et seq. 19 G. Romanelli & M.M. Comenale Pinto, ‘Trasporto, turismo e sostenibilità ambientale’, Diritto dei trasporti, 2000, pp. 659, 676. In the same direction: Huerta Viesca & Rodríguez Ruiz de Villa 2004, p. 79. 20 In Italian literature, see S.M. Carbone, ‘Strumenti internazionalistici e privatistici-internazionali relativi al risarcimento dei danni provocati da idrocarburi all’ambiente marino’, in P. Fois (Ed.), Il principio dello sviluppo sostenibile nel diritto internazionale ed europeo dell’ambiente, atti del Convegno di Alghero del 16 – 17 giugno 2006 della Società Italiana di Diritto Internazionale, Editoriale Scientifica, Naples, 2007, pp. 399, 420; J.M. Ruíz & J.M. Martín Osante, Manual de derecho de Accidentes de la Navegación, Vitoria Gasteiz, Eusko Jaurlaritza, Portu eta Itsas-Arazoetarako Zuzendaritza – Gobierno Vasco, Dirección de Puertos y Asuntos Marítimos, 2006, p. 394. 21 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, adopted at London on 3 May 1996. In this regard, see S. Zunarelli, ‘La Convenzione di Londra sulla responsabilità nel trasporto di sostanze pericolose e nocive’, Diritto dei Trasporti1996, p. 727; R. Cleton, ‘Damage Caused During the Carriage of Hazardous and Noxious Substances by Sea’, Il diritto marittimo, Vol. XCIV, 1992, p. 998. To date Italy has not ratified that convention, which in general has not had much success such that it has not yet fulfilled the conditions for its entry into force. Moreover, an amending protocol was subsequently approved on 30 April 2010, but it is not yet in force too: for information in that regard, see N.A. Martinez Gutierrez, Limitation of Liability in International Maritime Conventions. The Relationship Between Global Limitation Conventions and Particular Liability Regimes, Routledge, London, 2010, pp. 155 et seq.; G. Olimbo, ‘Il nuovo regime giuridico per il trasporto marittimo di HNS. Una nuova strategia a protezione dell’eco-sistema marino’, Rivista Marittima, Vol. 145, February 2012, p. 29. 22 International Convention on Civil Liability for Bunker Oil Pollution Damage, adopted at London on 23 March 2001. Italy deposited its instrument of ratification with the IMO Secretary General on 18 November 2010, following authorisation under Law No. 19 of 1 February 2010. On that convention, see C. Wu, ‘Liability and Compensation for Bunker Pollution’, Journal of Maritime Law & Commerce, Vol. 33, 2002, p. 553. One significant difference from the CLC system that is worth underlining is the overcoming of the notion

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Michele M. Comenale Pinto 14.4 Channelling and Efficiency of the Compensation Scheme Ever apart from the doubts raised as to whether the CLC system actually furthers the polluter pays principle, the fact is that it does not fully respond to the conclusions on the efficiency of compensation schemes drawn by the legal writers in the civil sphere who had tackled the issue of strict liability and the channelling of liability (in the case in point, shifted on to shipowners23 and the fund established under the 1971 Fund Convention as amended) with reference to justifying the limits on damages. At the time, it was argued that from the general standpoint of shifting attention from the person responsible to the person damaged, channelling – understood as arising from the impossibility for the damaged party to bring its action for damages against somebody other than the party deemed liable by law – was essentially justified by the need to ease identification of the defendant and to reduce insurance costs, given that identifying a single liable party would mean that the latter as such would have had an interest in taking out an insurance policy to cover its own liability.24 Moreover, a first hint that the 1971 Fund Convention was not consistent with the logic concerned can be found in that convention’s very preamble, where one can read regarding the Contracting States’ view



of channelling of liability to the owner, because liability now extends also to the “bareboat charterer, manager and operator of the ship”: for the reasons underlying that solution see Carbone 2007, p. 420; S.M. Carbone & L. Schiano di Pepe, ‘Uniform Law and Conflicts in Private Enforcement of Environmental Law: The Maritime Sector and Beyond’, Il diritto marittimo, Vol. 111, 2009, pp. 50, 65. See also F. Berlingieri, ‘Verso una ulteriore unificazione del diritto marittimo’, Il diritto marittimo, Vol. 112, 2010, pp. 377, 389. 23 Owner, as such: the wording of the relevant provisions of the Liability Convention is clear (ex plurimis: S.M. Carbone, ‘La responsabilità civile per danni da inquinamento marino da idrocarburi’, Enciclopedia degli idrocarburi, Vol. IV, 2005, p. 525), even if the solution adopted raises some misgivings. In particular, the US OPA solution is to be preferred: it overcomes practical obstacles to concretely identifying the liable person by providing that also the person who actually operates the ship is jointly liable with the owner: see P.J. Baena Baena, ‘Reflexiones sobre la responsabilidad civil por daños causados por contaminación marítima de hidrocarburos’, Derecho de los Negocios, Vol. 15, No. 161, 2004, pp. 5, 6 et seq. In effect, an owner’s liability under the CLC system is strict but not absolute because of a series of loopholes in the channelling of liability (G. Camarda, ‘Passato e futuro del diritto. Spunti e riflessioni sparse nell’ottica del marittimista’, in G. Camarda, S. Corrieri & T. Scovazzi (Eds.), La formazione del diritto marittimo nella prospettiva storica, Giuffrè, Milano, 2010, pp. 111, 134; Comenale Pinto 1993, pp. 35 et seq.; Wu 1994, pp. 170 et seq.). 24 It is argued that “[t]he channelling of liability towards a few operators must somehow be seen as an advantage. It facilitates the identification of the liable party, and hence the person against whom claims must be lodged. Per se it contributes to the clarity and rapidity of the compensation regime” (to quote, e.g., B. Vanheule, ‘Oil Pollution: The International Liability and Compensation Regime’, European Transport Law, Vol. 38, 2003, pp. 547, 550. In Italian literature, amongst many see C. Angelici, ‘Aspetti specifici dell’assicurazione dei rischi nucleari’, Rivista del diritto commerciale, 1980, Vol. 78, pp. 59, 68 et seq., as well as F. Berlingieri, ‘Progetto di convenzione internazionale per la disciplina della responsabilità per danni da polluzione da idrocarburi’, Il diritto marittimo, Vol. 70, 1968, pp. 520, 534. From the same perspective (with specific reference to the issue under consideration), see the views expressed when explaining the so-called ‘Erika II’ package – ‘Communication From the Commission to the European Parliament and the Council on a Second Set of Community Measures on Maritime Safety Following the Sinking of the Oil Tanker Erika’ /* COM/2000/0802 final */sub ‘Explanatory Memorandum’, § 4.4.3, at p. 58.

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14  The Mechanism of Funds for the Compensation of Maritime that the economic consequences of oil pollution damage resulting from the escape or discharge of oil carried in bulk at sea by ships should not exclusively be borne by the shipping industry but should in part be borne by the oil cargo interests. The economic mechanism described also means that the person identified as being liable is able to implement a cost-transfer mechanism, to determine well the risk borne (in general the limit on damages that accompanies strict liability) and consequently to readily calculate how much of the costs of the necessary insurance coverage and other associated charges will weigh on the price of the products and services that it supplies: it follows that in reality the negative consequences of liability will be borne in part by the end users of the product or service.25 In reality, the CLC system, compared with the basic 1969 Liability Convention (ever apart from the lack of true channelling therein), does not seem consistent at all with the need to reduce insurance costs in the terms just stated now given that it is not ruled out that an action for recoupment by the shipowner against who actually caused the damage is to be conducted on the basis of the ordinary principles for attributing liability.26 In the original text of the 1969 Liability Convention, an option for channelling was expressly provided for along the lines of the ‘Himalaya’ clause in maritime forms,27 through the exclusion of ‘servants or agents’ of the shipowner as possible defendants in the action for brought by the damaged party.28 However, experience in application demonstrated that within the context of maritime transport, a number of persons could potentially be identified as being responsible for the event causing the pollution on the basis of the ordinary criteria for attributing liability in tort but not falling within the notion of ‘agent’ or ‘servant’ of 25 The mechanism leads to the result that “[t]he losses are no longer borne by the liable operator or his guarantor but are spread over the contributors to the fund” (H. Bocken, ‘Alternative Financial Guarantees under the ELD’, European Energy and Environmental Law Review, Vol. 18, 2009, pp. 146, 164, thereby essentially contradicting the polluter pays principle and weakening the deterrent effect of liability. 26 See the express provision in this regard in Art. III, § 5, of the original 1969 Liability Convention, which remained unaltered even after the 1992 Protocol. 27 Regarding the apparent inspiration that the provision drew from the Himalaya clause (or at least as regards the unhappy coincidence of the wording), see Comenale Pinto 1993, p. 112. 28 That clause, as is well known, extends agreed exclusions of liability under a contract of carriage to third parties such as the servants and agents of the carrier: on the origin of the clause and how it has developed in maritime contract practice, see most recently B. Jerman, ‘The Himalaya Clause’, European Transport Law, 2011, pp. 1, 8, and W. Tetley, ‘The Himalaya Clause – Revisited’, Journal of International Maritime Law, Vol. 9, 2003, p. 40. For the issue of its validity taking into account the doctrine of privity of contract, see E. Moscati, ‘I rimedi contrattuali a favore dei terzi’, Rivista del diritto civile, Vol. 49, I, 2003, pp. 357, 390 et seq. Moreover, the contractual clause in question, inspired by an actual lawsuit, echoes a similar approach adopted in uniform rules governing the carriage of goods by sea (Hague-Visby Rules) and later again uniform rules governing air transport (Warsaw Convention 1929 as Amended by the Hague Protocol 1956): see G. Romanelli, ‘Principi comuni del diritto uniforme dei trasporti’, Scintillae Juris. Studi in memoria di Gino Gorla, Vol. II, 1994, pp. 1315, 1326.

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Michele M. Comenale Pinto the shipowner: this, ever apart from forum shopping, enabled a number of lawsuits to be brought aimed at avoiding the limit on damages, felt to be excessively low compared with the loss suffered.29 14.5 Circumvention of Channelling The channelling principle was better defined in the subsequent London Protocol of 1992, based on the 1984 one (which never entered into force), which introduced a detailed list of persons against whom an action for damages may not be directly brought by the injured party.30 Nonetheless, there is greater room for the injured party to seek damages from the persons involved in causing the accident, perhaps relying on a rather restrictive interpretation of the persons who cannot be sued directly by the injured party. This is exactly what happened in the accident that befell the Maltese oil tanker Erika, where the injured French parties sued the ship’s management company and the classification society that had certified the ship (in the case in point, RINA).31 A similar action was brought (but with a different outcome), unsuccessfully, against the US classification society ABS in the United States following the sinking of the Prestige oil tanker off the Galician 29 The best-known case is probably the Amoco Cadiz one, dating back to March 1978, which moreover – as a result of diplomatic pressure, especially from the French – led to the adoption of the 1984 Protocols, which never actually entered into force, and later the 1992 Protocols (see, in this regard, J. Dutheil de la Rochère, ‘Les réactions de l’O.M.C.I. au désastre de l’Amoco-Cadiz’, Annuaire français de droit international, Vol. 24, 1978, p. 755. In that case, among other things, legal action was brought (before courts in the United States although that country is not a party to the CLC system) against the shipyards that had repaired the ship, the rescuers and the parent company of the company that owned the ship. For a summary of the whole affair, which takes account also of the appeal judgment issued on 24 January 1992 by the Seventh Circuit Court of Appeals (In the Matter of: Oil Spill by the Amoco Cadiz 954 F.2d 1279, 7th Cir. 1992; the judgment can also be found in Il diritto marittimo, Vol. 115, 1993, p. 1160), see T. Scovazzi, ‘La sentenza d’appello sul caso “Amoco Cadiz”’, Rivista giuridica dell’ambiente, Vol. 7, 1992, p. 443. 30 F. Berlingieri, Le convenzioni internazionali di diritto marittimo e il codice della navigazione, Giuffrè, Milan, 2009, p. 583; M. Brignardello, ‘I luoghi di rifugio per le navi in pericolo: un difficile compromesso tra sicurezza della navigazione, tutela ambientale ed interessi degli Stati costieri’, Il diritto marittimo, Vol. 107, 2005, pp. 401, 427. Moreover, channelling has been one of the major criticisms of the system (at the level of the then European Community, the principle of channelling liability for damages was questioned within the context of explaining the so-called ‘Erika 2’ package: see ‘Communication from the Commission to the Council and the European Parliament of 6 December 2000 on a Second Set of Community Measures on Maritime Safety Following the Sinking of the Oil Tanker Erika’, doc. COM(2000) 802 final, especially §§ 4.4.3 and 5) of the explanatory memorandum, the latter on the proposed action. See also S. Robert, L’Erika: responsabilités pour un désastre écologique, Pédone, Paris, 2003, pp. 38 et seq. 31 That accident occurred in the waters off the French Atlantic coast at the end of 1999 and was a turning point in the then European Community’s policy on maritime safety (with the adoption of three Erika packages, on which see A. Del Vecchio, ‘Tutela della safety e misure comunitarie per i trasporti marittimi’, Rivista del diritto della navigazione, Vol. 39, 2010, p. 125. Particularly complex was the ensuing litigation in the courts, which raised inter alia the question of jurisdiction over the classification societies. The Italian Supreme Court en banc clarified that, also as regards the actions against the classification registries as entities that could bear liability for accidents involving oil spills at sea, the relevant principle was the one whereby jurisdiction lies with the State where the damage occurred in accordance with Art. IX of the Liability Convention: Judgment No. 14769 of 17 October 2002, in International Oil Pollution Compensation

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14  The Mechanism of Funds for the Compensation of Maritime coast,32 a place that has witnessed numerous other accidents over the last few decades and where naturally there is a heightened sense of public awareness.33 14.6 The Fund Convention Ever apart from whatever shortcomings there may be in the principles of attributing liability under the basic Liability Convention or in any case in the closed nature of channelling, misgiving about the channelling system itself that accompanies strict liability and limitations on liability were implicit in the further convention on the establishment of a fund signed in Brussels on 18 December 1971, adopted on the basis of the final act of the 1969 diplomatic conference, that had highlighted the inadequacy of the levels of compensation provided for under the Liability Convention compared with the damage that could potentially stem from the transport of bulk oil.34 Incidentally, worth stressing is the close connection between the 1969 and 1971 conventions: one could not be party to the second without being party to the first one. In that regard, they have rightly been referred to as ‘sister conventions’.35

32

33 34 35

Fund v. RINA s.p.a. and Registro italiano navale, Diritto dei trasporti, 2004, p. 833, with note by B. Cossu, ‘Competenza giurisdizionale e responsabilità delle società di classificazione di navi’, Diritto dei trasporti, 2004, p. 838. As regards the position of the classification society and the management company of the ship, their liability was established by the Tribunal de grande instance de Paris 11.eme Chambre correctionnelle, on 16 January 2008, Savarese, Pollara, Rina S.p.A. et al., in Il diritto marittimo, Vol. 110, 2008, p. 247, with note by P. Bonassies, ‘Réflections d’un juriste français sur le jugement Erika’, Il diritto marittimo, Vol. 110, 2008, p. 247. That judgment was upheld on appeal: Cour d’appel de Paris, 30 March 2010. There have been numerous comments on this latter decision, amongst which M. Boutonnet, ‘La classification des catégories de préjudices à l’épreuve de l’arrêt Erika’, Revue Lamy Droit civil, Vol. 73, 2010, p. 18; L. Neyret, ‘L’affaire Erika: moteur d’évolution des responsabilités civile et pénale’, Recueil Dalloz, 2010, p. 2238. On this specific point, the Erika and Prestige cases were compared by T. Scovazzi, ‘Due recenti e divergenti sentenze in tema di risarcimento del danno all’ambiente marino da inquinamento da idrocarburi’ (paper submitted at the ‘Mer et responsabilité’ conference in Brest, 2008), Rivista giuridica dell’ambiente, Vol. 22, 2009, p. 205. The litigation was particularly complex: US jurisdiction was recognised by the United States Court of Appeals for the Second Circuit on 12 June 2009, Reino de Espana v. Absg Consulting, Inc., Abs Marine Services, Inc., Abs Group of Companies and the American Bureau of Shipping, Inc., American Maritime Cases 2009, p. 2402, overturning the decision at first instance of the United States District Court for the Southern District of New York, Reino de Espana v. American Bureau of Shipping of 2 January 2008, in Il diritto marittimo, Vol. 110, 2008, p. 271. In a subsequent judgment of 3 August 2010, the United States District Court for the Southern District of New York, Reino de Espana v. American Bureau of Shipping et al., U.S. Dist. LEXIS 78403, ruled out any liability on the part of the classification society for the sinking of the ship. In this regard, it is sufficient to refer J. Juste Ruiz, ‘El accidente del “Prestige”’, in J. Juste Ruíz & T. Scovazzi (Eds.), La práctica internacional en materia de responsabilidad por accidentes industriales catastróficos, Tirant lo Blanch, Valencia, 2005, p. 299. That aspect is highlighted in the final act of the 1969 diplomatic conference and reiterated in the preamble to the Fund Convention: for references see Comenale Pinto 1993, p. 32. L.A.W. Hunter, ‘The Proposed International Compensation Fund for Oil Pollution Damage’, Journal of Maritime Law and Commerce, Vol. 4, 1972, pp. 117, 119. On how the two conventions complement each other, see also Huerta Viesca & Rodríguez Ruiz de Villa 2004, p. 45.

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Michele M. Comenale Pinto The IOPCF is financed by contributions collected from large receivers of oil through the Contracting States.36 In this regard, it is worth stressing that the most pessimistic forecasts that some experts in maritime law had made during the preparatory work for the Fund Convention about likely attempts by the oil industry to elude their contribution obligations by splitting up the lots of oil received and using bogus consignees37 have turned out to be totally without foundation in practice. Over the years, various diplomatic conferences have amended (in parallel) the two conventions: in 1976,38 in 198439 (amendments that never took effect, however) and in 1992.40 Finally, also to deal with mounting pressure from the then European Community after the Erika affair in order to avert a situation whereby the latter would set up its own compensation fund,41 the London Protocol of 16 May 2003 to the Fund Convention was adopted dealing with supplementary compensation.42 36 The Fund is financed through contributions paid in by persons who, in each Contracting State, in the calendar year has received total quantities of oil exceeding a certain figure (150 tons): on this aspect see (also for further references) Comenale Pinto 2003, p. 201. For a more detailed description, of how the Fund is financed, see M. Jacobsson, ‘Oil Pollution Liability and Compensation: An International Regime’, Uniform Law Review, 1996, pp. 260, 264. 37 See, e.g., the alarm raised at the time by P. Manca, Commento alle convenzioni internazionali marittime, Vol. I, Giuffrè, Milan, 1974, p. 357. 38 London Protocols of 19 November 1976, which modified the unit of account in which the limits to the amount of damages obtainable under the two conventions are expressed: Protocol to the International Convention on Civil Liability for Oil Pollution Damage (CLC 1976), in force at international level since 8 April 1981 and in Italy since 20 December 1983 and the Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund 1976), in force in Italy and internationally since 22 November 1994. 39 The two London Protocols of 25 May 1984 raised the limits on compensation (and consequently as regards the Fund Convention, the contributions of the single Contracting States) and redefined the notion of compensable damage and the geographic scope of application. It proved impossible to bring them into force on the terms stated therein owing to strong opposition to their ratification from some industrialised countries, who as receivers would have found themselves subject to a greater burden because of the increase in the compensation limits. 40 The two London Protocols of 27 November 1992 essentially adopted the content of the two 1984 Protocols but subject to conditions that made their entry into force much easier (in terms of the number of ratifications and the size of the fleets of the ratifying States). Both entered into force internationally on 30 May 1996 (for Italy, with effect from 16 September 2000 in the wake of ratification through Law No. 177 of 27 May 1999). 41 At the origin of the adoption of the Protocol was the desire to ward off unilateral action by the then European Community in the form of ‘Proposal for a Regulation of the European Parliament and of the Council on the Establishment of a Fund for the Compensation of Oil Pollution Damage in European Waters and Related Measures’ – COM(2000) 802 final – 2000/0326(COD), presented by the European Commission on 8 December 2008 as part of the so-called ‘Erika II Package’ (Communication from the Commission to the European Parliament and the Council on a second set of community measures on maritime safety following the sinking of the oil tanker Erika). That fund was to be called ‘COPE’ (acronym for ‘Compensation of Oil Pollution in European waters’). On the context in question, see J.M. Sobrino Heredia, ‘L’affaire du Prestige: cadre juridique communautaire’, in R. Casado Raigón (Ed.), L’Europe et la mer. Pêche, navigation et environnement marin, Bruylant, Bruxelles, 2005, pp. 215, 225 et seq. 42 Carbone 2007, pp. 632 et seq. Although from a purely litigation standpoint and with reference to issues regarding jurisdiction, see also S. La China, ‘Una nuova norma processuale sulle “cause promosse per i danni dall’inquinamento da idrocarburi”’, Rivista di Diritto Processuale, Vol. 40, 2005, p. 1285. On the importance

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14  The Mechanism of Funds for the Compensation of Maritime Moreover, it should be pointed out that not all of the Contracting States to the 1969 Liability Convention went on to ratify the 1971 Fund Convention. A certain lack of uniformity was due to fact that ratification of amending protocols was not always contemporaneous: it also happened that a Contracting State did not ratify in parallel each of the two amending protocols concluded for the two conventions by diplomatic conferences that were held one after the other. This occurred, for example, in the case of Italy in relation to ratification of the 1976 Protocols that changed the unit of account for measuring liability from Poincaré francs to special drawing rights, which was relevant in the ‘Haven’ case.43 This led to a complex framework, characterized by the simultaneous operation of the respective funds set up under the 1971 Fund Convention in its original version and as amended by the 1992 Protocol. To put an end to this situation, the IMO had to convene an ad hoc diplomatic conference that adopted a specific protocol designed to terminate the operation of the original fund.44 14.7 The Role of Private Funds It should be noted that the allocation of liability between the owner of the ship that caused the pollution and the fund established under the 1971 Fund Convention generally reflected the allocation of the burden that maritime and oil industries had voluntarily agreed on under the TOVALOP and CRISTAL schemes.45 In effect, shipowners and the

of the action of the now European Union (and its courts) on the development of marine environmental protection, see in recent literature: L. Schiano di Pepe, ‘Inquinamento marino da navi e diritto dell’Unione europea: contributo della Corte di giustizia e linee evolutive attuali’, Il diritto marittimo, Vol. 112, 2010, p. 407. 43 In fact, it was possible that both the Liability Convention as amended by the 1976 Protocol and the Fund Convention as per its original 1971 text would apply in the same jurisdiction. However, this can no longer happen for the 1992 Protocols to the two conventions, which maintain the original strict reciprocal constraint: ratification of the 1992 Protocol to the Fund Convention presupposes ratification of the 1992 Protocol to the Liability Convention. For what happened in the ‘Haven’ case, see Court of Genoa judgment of 14 March 1992, in Diritto dei trasporti, 1992, p. 927. An analogous issue arose in Spain in relation to the ‘Aegean Sea’ case: see M. Castillo Daudí, ‘El siniestro del buque Aegean Sea y la indemnización de los daños’, Anuario de derecho maritimo, 2001, p. 261. 44 See, in this regard, G. Camarda, ‘L’evoluzione della normativa internazionale e nazionale vigente in materia di sicurezza della navigazione e prevenzione dell’ambiente dall’inquinamento marino’, Rivista giuridica dell’ambiente, Vol. 16, 2001, p. 699. In effect, up to 24 May 2004, the date on which the Fund Convention as per its original 1971 text no longer had effect was terminated, both the original IOPCF and the one established under the Fund Convention as per its 1992 text operated. 45 TOVALOP stands for ‘Tanker Owners Voluntary Agreement concerning Liability for Oil Pollution’ while CRISTAL stands for ‘Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution’. Regarding those voluntary compensation schemes, see, at the time, G.L. Becker, ‘A Short Cruise on the Good Ships TOVALOP and CRISTAL’, Journal of Maritime Law and Commerce, Vol. 5, 1974, p. 609; B. Clark, ‘The Future of TOVALOP’, Lloyd’s Maritime and Commercial Law Quarterly, Vol. 2, 1978, p. 572; L.G. Cohen, ‘Revisions of TOVALOP and CRISTAL: Strong Ships for Stormy Seas’, Journal of Maritime Law and Commerce, Vol. 18, 1987, p. 525. See also D.W. Abecassis, ‘Voluntary Compensation Schemes’, in Abecassis

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Michele M. Comenale Pinto oil industry involved in the carriage of oil by sea, at a time marked by a heightened awareness of environmental problems, had tried to adopt an approach that was not aggressive or provocative towards public opinion, which was particularly on its guard in light of various disasters that had occurred, starting from the case of the Torrey Canyon oil tanker. TOVALOP and CRISTAL were harbingers of the CLC system,46 so much so that they were deemed to be no longer necessary following the entry into force internationally of the 1992 Protocol to the Fund Convention (30 May 1996), so much so as to induce the signatories to withdraw therefrom in February 1997 without taking account that some states had not yet ratified the 1992 Protocol.47 A different mechanism is employed by two funds recently established at the initiative of the most important P&I clubs, that allow the IOPCF to take action to recoup the sums paid to injured parties directly from the P&I club that the shipowner belongs to. I am referring here to the Small Tanker Oil Pollution Indemnification Agreement (STOPIA) 2006 and the Tanker Oil Pollution Indemnification Agreement (TOPIA) 2006. They are not called upon to supplement a legal framework not yet in force, but to alleviate the payouts made by the IOPCF on foot of the current system.48 The result has been welcomed by some authoritative writers as “an immediate and partial rebalancing of the maritime industry’s sharing, based on needs that emerged from practice, of costs that would otherwise be borne exclusively by the oil industry”.49 However, it is a view that I cannot agree with for a variety of reasons. 14.8 Doubts on the Overall Efficiency of the CLC Compensation System First and foremost, let me express some scepticism regarding the possibility of relying on civil liability as an instrument of prevention and dissuasion in the sense of a means of inducing the relevant parties to consider reducing the risks. This is because, like all liability associated with business activities, it is possible to shift the negative consequences on to the final user in accordance with the system described above.



46 47 48

49

& Jarashow 1985, p. 303. In Italian, see P. Novia, ‘Modelli integrativi di risarcimento: Stato o fondi?’, in Il danno ambientale, Giuffrè, Milano, 1989, pp. 103-105 et seq., and H. Bocken, ‘Alternative alla responsabilità ed all’assicurazione della responsabilità nel risarcimento dei danni da inquinamento’, Assicurazioni, Vol.58, 1988, part I, pp. 99, 105 et seq. See Abecassis 1985, p. 303; Novia 1989, p. 105; Carbone 2007, p. 407. See Comenale Pinto 2003, pp. 197 et seq. See J. Juste-Ruíz, ‘Compensation for Pollution Damage Caused by Oil Tanker Accidents: From “Erika” to “Prestige”’ [L’indemnisation des dommages de pollution résultant d’accidents de pétroliers: de l’“Erika” au “Prestige”], The Aegean Review of the Law of the Sea and Maritime Law, Vol. 1, 2010, pp. 37, 42, n. 5; M. Faure & H. Wang, ‘Financial Caps for Oil Pollution Damage: A Historical Mistake?’, Marine Policy, Vol. 32, 2008, pp. 592, 595. To quote Carbone 2007, p. 419.

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14  The Mechanism of Funds for the Compensation of Maritime That said, the efficacy of liability as a means of dissuasion and as an incentive to take preventative action has been doubted from the very beginning, based as it is on a system that entails a significant (if not the most significant) part of liability being shifted to a fund financed by all of the large receivers of oil without distinction (i.e., both those that use reliable ships and those that resort to transport solutions that are wanting from a safety standpoint).50 The provisions contained in the 1971 Fund Convention whereby the fund had to foot the bill for some of the damages paid by the shipowner were not rational at all51 and indeed it no longer appears in the 1992 Protocol to the Fund Convention.52 That same point can be made in relation to the IOPCF’s right of recoupment against the P&I clubs that represent shipowners. Ever apart from the general doubts that one can nurture on the mechanism that makes the bearing of the consequences a seesaw affair to say the least, there are two other points to consider: first, the oil industry (in other words, the large receivers of oil who finance the IOPCF) is closer to the final user and is better placed to shift the costs that it incurs in relation to the damaging consequences of transporting oil. Secondly, recalling what was mentioned above, that the large oil companies no longer really engage in shipping themselves but rely increasing more on one-ship owners. I believe I can conclude by stating that it is at least reasonable to doubt that, even through their own P&I clubs, those entities are able to distribute the costs better than the oil industry.

50 From that perspective, doubts as to the efficacy of the current system have been raised by B. Isambert, ‘Responsabilité civile et régulation du risque de marée noire’, Revue économique, Vol. 58, 2006, p. 619 (for the conclusions, p. 628). 51 The original wording of Art. 5 of the Fund Convention as per its 1971 wording provided that a ship owner could recoup from the Fund any sums paid as damages under the CLC exceeding 1,500 francs for each ton of the ship’s tonnage or an amount of 125 million francs, whichever was less. 52 The misgivings that emerged at the 1971 diplomatic conference in relation to this aspect are recounted in D.W. Abecassis, ‘The 1971 Fund Convention and the International Oil Pollution Compensation Fund’, in Abecassis & Jarashow 1985, pp. 252, 261. On the irrationality of the solution, see Comenale Pinto 1993, p. 77.

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Part IV Marine Resources

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15

Microalgae Use for Energy Purposes

Aldo Imerito* Research on new sources of renewable energy production is a hot topic worldwide. One of the research lines involves the cultivation of plants containing substances with high energy content, and their use (with or without pre-treatment) as fuel in biomass power stations to produce electricity and heat. This is a wide and varied topic and, in a short exposure, requires approximations and simplifications to be made. By limiting the discussion to an overview of the essential concepts, guidelines for this kind of research are based on this assumption: plants (i.e. trees, sunflower, rapeseed) are able to absorb carbon dioxide (CO2) from the atmosphere, turning it into more complex substances, which will be part of the plant body that develops. The biomass produced is collected and burned in thermal power stations appropriately designed for the manufacture of this kind of ‘fuel’; the combustion gives rise to energy (as heat), water vapour and CO2. In an ideal case, the CO2 adsorbed when the biomass is grown is the same as that emitted during cultivation, transport (short chain) and biomass burning. The practical application of this idea, however, has brought to light unexpected impacts on the environment and the economy. The cultivation of biomass for energy purposes, being more profitable than agriculture for food, is using up space and resources. In some cases, the use of food products (especially cereals) for the production of biofuels and energy has led to an increase in the prices of food from these derivatives, because of increased demand for the raw material. Even in the case of non-food crops, the increase in demand and financial speculation have led to sharp increases in the prices of materials derived. The search for alternatives for the manufacture of biofuels using non-agricultural sources has identified biomass produced by microalgae as one of the most promising options. On this issue, there is a race, worldwide, to find the best technological solutions to industrialize these types of crops and the economics of this activity. What are microalgae? To explain what microalgae are, we must first establish the difference between them and ‘macroalgae’. In our experience, we are used to thinking of algae as aquatic organisms with a stem and leaves, similar to ‘aquatic plants’ (a classic mistake is to confuse the Posidonia oceanica, which is an aquatic plant, with seaweed). In a nutshell, those that we can assimilate to ‘aquatic plants’ are defined as ‘macroalgae’.

*

President of the ECOTEC Group.

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Aldo Imerito Some macroalgae, for example kelp (Fucus serratus), are used in herbal medicine. Lots of algae are used in cooking and in vegan macrobiotic diet; the ‘nori alga’, for example, is used to make sushi. There is a long tradition of consumption of algae-like food, both in the countries of Northern Europe and along the Mediterranean coastal areas. In Italy, in particular, the tradition of ‘Zeppole sea’, fritters made with green algae named ‘sea lettuce’, is still alive. Some macroalgae are particularly effective in fighting the greenhouse effect. Some studies have investigated the use of macroalgae as an alternative source of energy, but there are no indications at present of significant developments in the near future. On the contrary, there are many indications of possible uses of microalgae in the field of energy. These microorganisms, also called ‘cyanobacteria’, are simple, easily adaptable, and can be found in freshwater, and brackish and salt water. The name ‘microalgae’ is attributable to the very small size – about a few micrometres – of the body. In everyday life, we are literally surrounded by these microorganisms. A typical example of microalgae is the Dunaliella salina, which gives a typical reddish colour to the tanks of saltworks. The flamingos are pink in colour because of their daily consumption of some microalgae and shellfish that contain carotenoids. Depending on the content of typical substances in the cell, microalgae can have different colours (green, red, purple or blue). Nutritional supplements and various beauty products are based on Spirulina or Chorella (two common microalgae), and they are easily available in supermarkets and drugstores. Currently, about 1,50,000 species of microalgae are known, but only for a few tens of these has the DNA been mapped. This activity is still in progress, and there is a strong interest in developing its potential through massive cultivation of these microorganisms. Generally speaking, microalgae are able to adapt and grow in fresh, brackish or salt water, and they can survive by feeding on different sources. In fact, they also feed on CO2, just as plants do. Microalgae ‘eat’ some sources of nitrogen or carbon present in some by-products or wastewaters, using mechanisms similar to some microbiological purification systems called ‘activated sludges’. Above all, microalgae do not compete with agricultural crops in terms of available space, but, as we shall see later, they are potential competitors with regard to the consumption of fresh water. One of the main properties of microalgae use in biofuels production is their efficiency in conversion from solar energy to biomass; in fact, this ability is much greater than that achievable with traditional crops. For instance, one hectare of sunflower or colza can produce 700-1,000 kg of oil per year, while microalgal cultures, grown in properly designed facilities with closed reactors or ‘photobioreactors’, can produce 20-30 tons of oil per hectare per year, depending on the location (southern Europe or tropical countries).

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15  Microalgae Use for Energy Purposes Microalgae biomass contains different kinds of substances, in addition to lipids. After appropriate processes, many valuable products can be extracted from microalgae; for instance: − biofuels, biodiesel, hydrogen and biogas; − dietary supplements; − therapeutic and diagnostic products; − pigments; − sources of fine chemicals; and − animal feed. Pigments and therapeutics are high value-added substances and, even if their content in microalgae is low, their extraction is cost-effective. A clear example is the production of astaxanthin (a strong antioxidant, anti-cancer, natural, coloured food supplement). Until a few years ago, the main natural source of this molecule was salmon; in fact, astaxanthin is responsible for its typical pink/red colour. In recent times, a micro alga called Haematoccoccus pluvialis, whose astaxanthin content, per unit of weight, is 1,000 times greater than that in the salmon, has become a major source of astaxanthin. It is of interest to note that today Haematococcus is fed to salmon in fish farming to give it that typical coloration. Microalgae are cultivated in two different ways depending on the target of the crop: extensive or intensive cultivation. In both cases, a huge volume of water is needed to carry on cultivation. In recent years, international institutions are discouraging freshwater cultivation because, again, it would cause trouble for traditional agriculture; on the other hand, crops (on land) that use seawater as liquid medium are preferred. Extensive cultivation is done in natural lagoons or in artificial ponds (the so-called race ponds). The artificial ponds are quite low basins (30-50 cm deep) that extend over large areas, and they take advantage of sunlight, but their productivity changes with seasons. The microalgae content does not yield high values of biomass, but production is cheap and easy, and it has very low energy requirements. Because of the requirement of large surface areas, this kind of production is cost-effective only in countries where land is cheap, or in those that have extensive uninhabited lands (e.g. in desert areas). Microalgae intensive cultivation is carried out in closed reactors (or ‘photobioreactors’), which is the real challenge in the production of microalgae. In these systems, microalgae can grow in controlled and stable conditions throughout the year regardless of the seasons. In principle, a microalgae culture in closed reactors could be developed in height, making it possible to have a large volume of crops arranged on quite low surfaces. The biomass productivity, relative to the surface engaged, could become some orders of magnitude higher than that of crops in a race pond or in a lagoon. 277

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Aldo Imerito In practice, today, in order to avoid the costs of artificial lighting, the most common photobioreactors are ‘transparent’ containers, installed outdoors, which use sunlight to develop algal biomass, just as in the lagoons. Equipment for the production of algal biomass of this kind, obviously, is still strongly influenced by the seasons. Research has been focused on the optimization of such systems, investigating solutions to ensure the best culture conditions inside the reactors, with low-cost energy requirements. The Ecotec Group, for instance, is studying an artificial lighting system with high efficiency, similar to what is done in some agricultural crops in greenhouses in northern Europe. Microalgae biomass for biodiesel production must first be separated from the liquid medium, and then lipids contained in cells must be extracted and sent for further processing. These are well-known manufacturing processes, such as the transesterification of fatty acids (or lipids). The main products are biofuels suitable for supplying diesel engines, gasoline engines or turbine engines. As a rule, each of these products may be directly used as fuel, but, since the available quantities of these materials are still very low compared with market demands, mixing them with similar fuels of petroleum origin still needs to be done. In the current state of technological development, the production of biodiesel or biofuel from microalgae is generally not cost-effective compared with the traditional production of fuels. In fact, some steps in the production chain (drying of biomass, for instance) are still too expensive. However, research is still in progress to find a solution to these problems; moreover, economic incentives are being granted by the authorities to promote energy from renewable sources. In recent times, there has been a further boost owing to the interest of the US Army in the production of biofuels from algae, with mobile installations. In the current state of the art, the only way to design a cost-effective microalgae crop plant is to use seaweed as a source of lipids and high value-added substances, which are produced and extracted together, possibly at the same site, and then sent to the markets. This concept (extremely simplified) is called ‘biorefinery’. In this way, thanks to economies of synergy, you could have a profitable economic balance (the difference between production costs and theoretical gain of all products placed on the market) by producing small quantities of high value-added products (400-600 €/kg) together with large quantities of relatively low-value lipids (600-900 €/ton). There are currently various projects, worldwide, that will lead to large-scale industrial production of biofuels and high value-added substances. Several projects are far ahead in the development programme, and very interesting intermediate results have been achieved, but none has yet reached completion. In Italy, the Ecotec Group is among those that are deeply involved in the field of microalgae crops; at the ‘Centro Ricerche Ecotec’ facility, near Cagliari (Sardinia), there are

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15  Microalgae Use for Energy Purposes several experimental pilot plants, and Ecotec researchers are studying the cultures of algal biomass with the aim of identifying innovative systems for the production of microalgae in closed reactors, both for energy purposes and for high value-added products. Research and development has always been the basis of the Group’s activities, but in the past it has depended heavily on external laboratories. The Ecotec Research Centre (CRE) started its activities in the late 1990s with the aim of improving the technological capacity of the Ecotec Group (operating in the environmental field since the mid-1980s) and providing the market with innovative products. It is located in the south of Sardinia and is spread over an area of about 15,000 m2; there are about 2,500 m2 of chemical laboratories , pilot plant test rooms, warehouses and engineering offices. The CRE is in contact with several universities, both Italian and foreign, and with the Italian company Consiglio Nazionale delle Ricerche (CNR). In particular, Ecotec has designed and built, in partnership with the Institute of Plasma Physics, CNR, Milan, one of the largest cold plasma pilot plants in Europe. With its ‘problem-solving’ approach, it is able to create and develop new technologies tailored to specific problems submitted by customers. Ecotec's research in the field of microalgae crops for biofuel is funded by a private company: project planning is divided into three phases; it has just completed the third and final stage, and important results have been achieved. As already mentioned, the large number of projects worldwide will lead to large-scale industrial production of biofuels and high value-added substances from microalgae crops. It is inevitable that in the event of massive diffusion of these productive activities, huge volumes of water will be necessary to meet industrial needs. There are many guidelines that suggest the use of brackish or salt water rather than fresh water for the cultivation of microalgae, as the use of the latter would deprive traditional agriculture of its requirements. Therefore, you can foresee an impressive use of seawater to create, on the mainland, the liquid medium for microalgae. This water, after treatment, would largely be returned to the sea. Until now we have had to deal with limited production of microalgae, and the issue of water consumption has been dealt with within the existing legal framework (with some differences from country to country, of course), i.e. with the application of rules governing agriculture or protection of the quality of water. These new scenarios require, in the near future, the establishment of an appropriate normative framework that would provide specific rules for the exploitation of seawater intended for that purpose. All that has been described as a possible future scenario, in some parts of the world, has already begun….

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16

The Exploitation of Offshore Transboundary Marine Resources or those in Disputed Areas: Joint Development Agreements

Maria Rosaria Mauro* 16.1 The Problem of Overlapping Jurisdiction Between States in Connection with the Exploitation of Marine Mineral Resources Two thirds of earth’s surface is made up of oceans and seas, rich in important natural resources. The desire to appropriate wealth has led states, from the end of World War II, to gradually extend their sovereignty over ever greater areas of the sea and the natural resources therein. The entry into force of the United Nations Convention on the Law of the Sea (UNCLOS) of 10 December 19821 has definitively granted coastal states rights over those marine areas, extending their rights to exploitation of the resources on one’s own continental shelf and entitling the states concerned to establish exclusive economic zones (EEZ).2 The extension of the powers of the coastal states, allied to claims of sovereignty over resources, and especially the hydrocarbons in those areas, has given rise to problems in delimiting the said zones, leading to a necessity for a legal framework consisting of welldefined rules and procedures. Therefore, the delimitation of marine spaces is a precondition for the exploration and the exploitation of the natural resources located in EEZs and on the continental shelf. However, despite the existence of principles on delimitation, many maritime boundaries have not yet been settled. Indeed, although disputes about those boundaries are nothing * 1 2

Associate Professor of International Law and International Private Law, University of Molise. The Convention was opened for signature on 10 December 1982 in Montego Bay and entered into force on 16 November 1994. On this issue, see T. Treves, ‘Codification du droit international et pratique des États dans le droit de la mer’, Recueil des Cours de l’Académie de droit international de La Haye, Vol. 223, 1990, pp. 9-302; A. Del Vecchio, Zona economica esclusiva e Stati costieri, Le Monnier, Florence, 1984; Ibid., ‘Mare (diritto internazionale del)’, in Enciclopedia del diritto, Vol. II update, 1998, pp. 509-526; T. Scovazzi, ‘The Evolution of International Law of the Sea: New Issues, New Challenges’, Recueil des Cours de l’Académie de droit international de La Haye, Vol. 286, 2000, pp. 39-243; G. Cataldi, ‘Mare (dir. int.)’, in S. Cassese (Ed.), Dizionario di diritto pubblico, Giuffrè Editore, Milan, Vol. IV, 2006, pp. 3583-3597.

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Maria Rosaria Mauro new, the disputes have certainly increased following the extension – in line with the UNCLOS provisions – of the new maritime areas subject to national jurisdiction.3 Therefore, disputes relating to the exploitation of offshore mineral resources are becoming frequent, especially when the deposits of hydrocarbons are located in areas of the continental shelf that a number of states claim sovereignty over, but also in cases of common deposits, i.e. deposits extending across continental shelf boundaries, thereby involving a number of states in their exploitation. In this latter case, the complexity of the question stems precisely from the fact that deposits of hydrocarbons that extend beyond the boundaries of a state can be contemporaneously exploited by all states concerned, thereby making dispute highly likely.4 In fact, transboundary deposits of oil and gas do not conform to the limits imposed by ownership, licences or national borders. International law recognizes a state’s sovereignty over the mineral resources located in the soil and subsoil of its own territory and in the territorial sea5 up to an unlimited depth irrespective of who discovered the deposit and regardless of the ability or wish of the coastal state concerned to exploit it. Consequently, other states must be authorized by the state concerned if they wish to exploit those resources.6 This principle also applies to the mineral resources on the continental shelf7 and in an EEZ,8 even though in this case the coastal state has ‘exclusive sovereign rights’ and not full territorial sovereignty. Moreover, that does not affect exploitation of the mineral resources. This is because although the continental shelf cannot be equated with territory, given that the rights enjoyed by the coastal state in that marine area are limited to exploration and exploitation of the resources, those rights are nonetheless exclusive since only the coastal state is entitled to engage in those activities and punish infringements with administrative and criminal sanctions.9 Accordingly, the other states may engage in exploration and exploitation only if authorized by the coastal state and in conformity with the latter’s laws, which must in turn comply with UNCLOS rules.10 In this regard, see T.A. Mensah, ‘Joint Development Zones as an Alternative Dispute Settlement Approach in Maritime Boundary Delimitation’, in R. Lagoni & D. Vignes (Eds.), Maritime Delimitation, Martinus Nijhoff, Leiden, 2006, p. 144. 4 See T.A. Reynolds, ‘Delimitation, Exploitation, and Allocation of Transboundary Oil & Gas Deposits Between Nation-States’, ILSA Journal of International & Comparative Law, Vol. 1, 1995, p. 136. 5 See Art. 2 UNCLOS. 6 See R. Lagoni, ‘Oil and Gas Deposits Across National Frontiers’, American Journal of International Law, Vol. 73, 1979, p. 216. 7 See Art. 77 UNCLOS. 8 See Art. 56 UNCLOS. 9 In this regard, see what the International Court of Justice (ICJ) held in its judgment of 20 February 1969 in the North Sea Continental Shelf cases (Federal Republic of Germany v. Netherlands; Federal Republic of Germany v. Denmark), 1969 ICJ Rep. 3, at 22, para. 19. 10 That principle underlies the hydrocarbons legislation adopted by many states, which often contemplates the opening up to exploration of sectors of the continental shelf and authorizations for domestic and foreign oil companies to undertake exploration and exploitation, with penalties for any infringements. 3

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16  The Exploitation of Offshore Transboundary Marine Resources Thus every state exercises its territorial sovereignty and sovereign rights respectively in its own territory and within the boundaries of its continental shelf. For this reason, deposits that extend across a boundary are divisible from a physical standpoint into distinct areas each of which is subject to the jurisdiction of a different state. However, that rule is difficult to apply to deposits of liquid minerals, such as oil and gas, because those resources can move across the border and also because it is impossible for a state to determine precisely what its actual share of the oil and gas is without the cooperation of the other states involved.11 Indeed, while from a geological standpoint those natural resources can be shared, on a legal level there are difficulties in considering them as such,12 because for deposits of hydrocarbons that cross an international boundary the laws of a number of states may apply, meaning that the terms and conditions for exploring, exploiting and transporting the oil and gas may differ. Therefore, contrary to what happens in cases where the sovereignty of a given state over the resources is not disputed, many difficulties arise when the resources are located in disputed areas whose boundaries have not been delimited yet or extend across an international boundary, given that the resources will be subject to competing claims of sovereignty by a number of states. Uncertainty may thus arise, which could compromise the development and use of the offshore mineral resources, because the high risks associated with any investment in those circumstances could slow down the exploitation of the resources. As we shall see, in those cases states often opt for international cooperation, implementing forms of joint development of those resources. However, while joint development may, on the one hand, allow the unitary nature of the deposit to be respected and hence from a technical and environmental standpoint be the ideal way to exploit the resources, on the other hand, from a legal standpoint, it may raise very complex issues. International law governing the exploration and exploitation of offshore mineral resources thus deals with two main issues: the classic one of establishing international maritime boundaries and the rules applicable to resources shared by a number of states.

11 See Lagoni 1979, pp. 215-216 according to whom: “In theory, these questions should simply be answered by reference to the fundamental principles of territorial sovereignty, sovereign rights and territorial integrity; however, the real problems arise if and when a state or concessionaire undertakes to explore and exploit the common deposit. In this connection, deposits of liquid (fluid or gaseous) minerals differ from hard mineral deposits, which the frontier or dividing line separates into recognizably independent units; common deposits of liquid minerals often extend across the boundary in such a way that either portion can be exploited, wholly or in part, from the other side of the line.” 12 According to A. Székely, ‘The International Law of Submarine Transboundary Hydrocarbon Resources: Legal Limits to Behavior and Experiences for the Gulf of Mexico’, Natural Resources Journal, Vol. 26, 1986, p. 735, “even accepting the inevitable natural unity of a given deposit of resources, the sovereignty of a State over its territory and natural wealth cannot be fragmented, much less ‘shared’.”

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Maria Rosaria Mauro 16.2 The Joint Development of Resources and the Delimitation of Maritime Boundaries Normally, delimitation is essential for the exploitation of marine mineral resources since it is a prerequisite for determining the rights that can be exercised by a state within its boundaries. States may agree that joint development of the offshore mineral resources is in the context of the delimitation of their maritime boundaries, but they could also well agree that joint development is an alternative to that delimitation. Indeed, the majority of joint development zones are established precisely to settle boundary issues or overlapping claims of sovereignty and jurisdiction. Moreover, in some cases, states decide to conclude joint development agreements without prejudice to their respective claims in relation to the maritime boundaries. In international law there are specific rules for delimiting maritime boundaries, and the last few decades have witnessed the formation of a rich body of case law concerning the delimitation of the continental shelf and EEZs – thanks to the International Court of Justice (ICJ), ad hoc arbitral tribunals and, more recently, the International Tribunal for the Law of the Sea (ITLOS)13 – that has helped to clarify the legal rules applicable. However, although specific rules on delimitation have been developed and agreement is emerging on the legal principles applicable in that context, various maritime boundaries still need to be settled because delimitation is a complex process often linked to technology and mathematical calculations. Furthermore, disputes in relation to the delimitation of boundaries raise complex questions of international law since they are linked to conflicting claims of territorial sovereignty. The Montego Bay Convention lays down specific legal rules for the delimitation of maritime boundaries, according importance in that context to agreements between the parties.14 The provisions contained therein are limited to furnishing general criteria, which are open, however, to conflicting interpretations. Of key importance is the delimitation of the maritime zones between states on opposite or adjacent coasts, precisely to avoid disputes in the exploitation of the natural resources therein contained. In particular, Articles 74 and 83 UNCLOS provide that delimitation, respectively of EEZs and the continental shelf, between states on opposite or adjacent coasts is essentially a matter for agreement between the parties on the basis of international law.15 Given the freedom that states enjoy in concluding their agreements, the provisions in question appear to be minimalist, only implying perhaps an obligation to negotiate in good faith informed by equitable principles in accordance with what the ICJ held in its 1969 landmark judgment on the North Sea continental shelf.16 13 In this regard, see R. Virzo, ‘Tribunale internazionale del diritto del mare’, in Enciclopedia del diritto, Annali, Vol. V, Giuffrè Editore, Milano, 2012, pp. 1346-1366. 14 See Arts. 15, 74 and 83, regarding respectively territorial seas, EEZs and continental shelves. 15 See para. 3 of both articles. 16 See the judgment of 20 February 1969 in the North Sea Continental Shelf cases, at 46-47, para. 85.

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16  The Exploitation of Offshore Transboundary Marine Resources The adoption of a negotiation process rather than a mathematical approach in delimiting the continental shelf and EEZs has led some to maintain that Articles 74 and 83 were deliberately worded in vague terms so as to favour states with greater bargaining power. Besides, it should be stated that even if it requires the states concerned to reach an agreement based on what is fair and equitable, the number of factors to be considered in delimiting a disputed maritime boundary often make attaining a truly equitable solution arduous. Moreover, the Montego Bay Convention sets out a very detailed procedure in relation to the delimitation of the zones of the continental shelf beyond 200 nautical miles, which involves a technical body set up for that very purpose: the Commission on the Limits of the Continental Shelf. At the request of the state concerned, the Commission provides assistance in establishing the outer limits of the continental shelf and makes recommendations in this regard. The limits of the shelf established by a coastal state on the basis of those recommendations are final and binding.17 However, initially only a handful of states parties submitted applications to the Commission with a view to delimiting their outer continental shelf, also because of the difficulties that could arise in delimiting the continental shelf between states on adjacent or opposite coasts or a continental shelf claimed by a number of states. As regards the first type of case, it must be borne in mind that Article 76(10) UNCLOS states that the provisions of the entire article are without prejudice to the question of delimitation of the continental shelf between states with opposite or adjacent coasts, which is often settled by agreement between the states concerned or by international judgments. As regards disputes about the continental shelf between states with opposite or adjacent coasts, Annex 1 (point 5) to the Rules of Procedure of the Commission provides that the Commission may not consider and qualify a submission made by any of the states concerned in the dispute, but may consider one or more submissions in the areas under dispute with prior consent given by all states that are parties to such a dispute. As regards the second type of case, i.e. difficulties associated with delimiting a continental shelf claimed by a number of states, Annex I (point 3) to the Rules of Procedure of the Commission envisages that a submission may be made for a portion only of the continental shelf in order not to prejudice questions relating to the delimitation of boundaries between states in any other portion or portions of the continental shelf for which a submission may be made later.18 The fact that on many occasions states have preferred to submit their disputes and claims about boundaries, sovereignty and access to resources to a neutral judge has given rise in that context to a body of case law able to settle a wide range of very complex technical

17 See Art. 76 and Ann. II. 18 In this regard, see A. Del Vecchio, ‘Piattaforma continentale’, Update, in Enciclopedia giuridica, Vol. XVII, Treccani, Rome, 2008.

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Maria Rosaria Mauro questions that generally arise in delimitation cases and often hamper a negotiated solution to the dispute. For example, the ICJ has issued numerous judgments on delimitation, from time to time adopting three different approaches in resolving disputes about maritime boundaries, based respectively on the equidistance principle, on a search for an equitable solution or on historical or special circumstances. However, arbitral or judicial resolution of such disputes is often hindered by the economic importance of the resources located in the areas to be delimited, like oil and gas, which in reality is often the reason why disputes arise in the first place. Furthermore, arbitral tribunals must assess a dispute in strictly legal terms, offering a solution that is based exclusively on legal grounds.19 It thus happens that arbitral tribunals are forced to take into account issues that at times preclude an assessment of the dispute having regard to the political and economic relations between the two states concerned. For those reasons, direct agreement between the states sometimes appears preferable rather than intervention by an arbitral tribunal or a court. The delimitation of maritime zones by agreement allows states to freely decide the criteria to be applied in this regard, although in general they opt for the principle of equidistance/ median line between the coasts as adjusted for other factors like the presence of islands, fish banks or even mineral resources.20 In fact, if there are deposits of hydrocarbons extending across a boundary, the parties can include specific clauses in the delimitation agreement aimed at governing, for example, the joint exploitation of the resources or the exploitation of those resources by one party subject to allocating a percentage of the output and/or the profits to the other party. At times, a joint development zone extending across the boundary is set up21 within the context of the delimitation agreement. Delimitation agreements are numerous. However, although the conclusion of the Montego Bay Convention led to a universally accepted definition of territorial sea limits, contiguous zones, EEZs and continental shelf, there are many boundaries that still have to be delimited.22 Undoubtedly, economic reasons have had a part to play in the fact that many maritime boundaries have not yet been delimited. On the one hand, the difficulties of delimitation 19 In this regard, see the decision of 14 February 1985 in Affaire de la délimitation de la frontière maritime entre la Guinée et la Guinée-Bissau (Guinea v. Guinea-Bissau), XIX Reports of International Arbitral Awards, 149, at 193, para. 120. 20 In this regard, see T. Treves, ‘Il diritto internazionale del mare e lo sfruttamento delle risorse’, in Enciclopedia degli idrocarburi, Vol. IV, which can be viewed at , p. 491. 21 See, e.g., the Agreement Relating to the Partition of the Neutral Zone, concluded at Al-Hadda on 7 July 1965, between Saudi Arabia and Kuwait; the Convention sur la delimitation des plateaux continentaux des deux Etats dans le Golfe de Gascogne (Golfe de Biscaye), concluded at Paris on 29 January 1974, between France and Spain; the Agreement Relating to the Exploitation of the Frigg Field Reservoir and the Transmission of Gas Therefrom to the United Kingdom, concluded at London on 10 May 1976, between Norway and the United Kingdom. 22 It is estimated, depending on how one takes into account various boundary segments, that there are between 360 and 425 potential maritime boundaries in the world’s seas and that about half of those boundaries (around 200) have not been delimited, with a risk that a dispute could arise between the states concerned.

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16  The Exploitation of Offshore Transboundary Marine Resources lead to reciprocal hampering of exploration and extraction, but, on the other hand, knowledge of the presence of oil and in general mineral resources in a given area can hinder such delimitation. Indeed, delimitation disputes generally arise in areas in which there are important hydrocarbon resources. For example, the South China Sea is at the centre of a complex territorial dispute involving China, Vietnam, the Philippines, Taiwan, Brunei and Malaysia, each of which claims all or part of the Paracel Islands and the Spratly Islands, a few islets and atolls for the most part uninhabited but – according to various surveys – rich in energy resources.23 Another area that is the subject matter of a delimitation dispute involving a number of states is the Caspian Sea, which Russia, Kazakhstan, Turkmenistan, Iran and Azerbaijan all claim sovereignty over.24 More complex again is the delimitation of the maritime boundary between Israel and Lebanon owing to both states’ claims in relation to huge oil and gas reserves, in particular, the Leviathan field, an extensive deposit of gas that extends across the disputed border.25 Finally, despite the agreement concluded in 2010 by Norway and Russia,26 there is still the outstanding question of the deposits of hydrocarbons in the Arctic Sea, claimed by all of the Arctic states. .

23 About 45 islands in the archipelago are currently occupied by Vietnamese, Chinese, Taiwanese, Malaysian and Philippine forces. China, which has proclaimed its sovereignty over the entire South China Sea and adjacent waters, has for some time now sought to manage the dispute on a one-to-one basis rather than engage in multilateral negotiations. Again in that area there is another group of small islands sovereignty over which is disputed by China and Japan (Diaoyudao islands for the former and Senkaku islands for the latter), even though the two states recognized, in the 2008 China–Japan Principled Consensus on the East China Sea Issue adopted on 18 June 2008, a need “to make the East China Sea, of which the delimitation between China and Japan is yet to be made, a ‘sea of peace, cooperation and friendship’” (Part I). In this regard, see S.K. Kim, ‘China and Japan Maritime Disputes in the East China Sea: A Note on Recent Developments’, Ocean Development & International Law, Vol. 43, No. 3, 2012, pp. 296-308. 24 For a long time, both post-Soviet Russia and Iran argued that the principle of ‘common sea’ and the concept of ‘condominium’ should apply to the Caspian Sea. However, the stance adopted by the other littoral states has weakened that argument, since they are seeking a division of the seabed into national zones using the equidistance principle. In effect, in international case law and practice among states, there are few examples of joint ownership of the seabed resources. Russia and Iran would seem to have accepted the division of the seabed based on the equidistance principle, but the problem remains of where to draw that line. 25 Recently, the Israeli government has declared a 200 nautical mile EEZ in waters in which it claims oil and gas exploration rights. However, the boundaries of that area overlap with those that Lebanon has communicated to the United Nations in relation to the establishment of its own EEZ. The particularly delicate aspect of that dispute lies in the fact that to the south of the disputed area reserves of oil and natural gas worth billions of dollars have been discovered and that could have a significant impact on Israel’s economy. Moreover, tension has been heightened by the Netanyahu government’s ratification of an agreement with Cyprus, which grants Israel control of the 1,250 km2 of sea that include the Leviathan field, the largest gas find in the Mediterranean, the Dalit field and the Tamar field, 130 km off the coast of Haifa. On this issue, see M. Wählisch, ‘Israel-Lebanon Offshore Oil & Gas Dispute – Rules of International Maritime Law’, ASIL Insights, 5 December 2011, Vol. 15, No. 31, which can be viewed at . 26 See the Treaty between the Kingdom of Norway and the Russian Federation Concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, concluded in Murmansk on 15 September 2010.

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Maria Rosaria Mauro Therefore, delimitation disputes are often characterized by a lack of political will on the part of the states to accept a compromise solution and, also at the same time for the reasons mentioned above, a reluctance to submit the dispute to an international court or tribunal. Competing claims of sovereignty undoubtedly hinder efficient exploitation of the hydrocarbons located in the disputed area. In reality, a delimitation dispute is often one about the exploitation of the natural resources situated in the area concerned. In these cases, therefore, it can happen that the states concerned decide to leave the question of the delimitation of their maritime boundaries unresolved and to embark on forms of joint development of the disputed mineral resources,27 which in this case, however, constitutes an alternative to delimitation. There are three main reasons that encourage states in those circumstances to conclude a cooperation agreement for the joint development of the resources: the desire to exploit, as soon as practical, the natural resources present in the disputed zones; awareness that delimitation could require a long time and hence lead to a delay in the exploitation of the resources and also harm bilateral relations; the certainty that joint development agreements concluded by others in the past have proved to be a valid solution and could constitute a good starting point for the negotiation of an agreement. Joint development zones for the exploration and the exploitation of the marine resources located in overlapping areas are a tool that dates back to the second half of the 1950s, and since then has been gradually recognized by states as a valid method to solve the complex problems underlying disputes in relation to the delimitation of maritime boundaries28 and a useful legal alternative to the process of delimitation of those boundaries, especially when the resources in question are still unknown.29 Indeed, compared with the delimitation and the division of territory, the setting up of a joint development area has the advantage of attenuating the scope for conflict between the parties, at times totally overcoming any competition over ownership of the resources in favour of a broader and more flexible approach to managing the seas and the resources therein.30 Enabling the states concerned to gain access to the resources of the disputed area pursuant to a mutually agreed arrangement can avoid the complex problems associated with delimitation. In fact, the delicate issue of ownership of the resources is transformed into one about distribution and quantity. In short, joint development promotes international cooperation 27 In this regard, see G. Triggs, ‘Maritime Boundary Disputes in the South China Sea: International Legal Issues’, Sydney Law School Research Paper No. 09/37, 2009, which can be viewed at , p. 1. 28 In this regard, see Mensah 2006, p. 146. 29 In this regard, see E.L. Richardson, ‘Jan Mayen in Perspective’, American Journal of International Law, Vol. 82, 1988, pp. 451-452. 30 In this regard, see S.P. Jagota, ‘Maritime Boundary and Joint Development Zones: Emerging Trends’, Ocean Yearbook, Vol. 10, 1993, p. 114; D. Ong, ‘South-east Asian State Practice on the Joint Development of Offshore Oil and Gas Deposits’, in G.H. Blake, W.J. Hildesley & M.A. Pratt (Eds.), The Peaceful Management of Transboundary Resources, Graham & Trotman, London, 1995, p. 91; V. Prescott & C. Schofield, The Maritime Political Boundaries of the World, 2nd edn, Nijhoff, Leiden, 2005, p. 264.

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16  The Exploitation of Offshore Transboundary Marine Resources in the management of common resources, encourages a rational use thereof and prevents conflict over possible deposits overlapping the boundaries that may be discovered in the future. 16.3 The International Legal Rules on the Exploitation of Transboundary Natural Resources The other case in which forms of joint development occur is linked to the exploitation of ‘transboundary’31 or ‘shared’ natural resources. It should be noted, according to one author, that natural resources can be defined as ‘shared’ when they do not belong to a single state or the international community. Therefore, what is involved is solely those resources that fall within the jurisdiction of two or more states to the exclusion of all others.32 However, some authors maintain that such a definition encounters a limit in the fact that, although accepting the natural unity of a given deposit of resources, on a legal level the sovereignty of the state over the territory and hence also the resources in question can be neither fragmented nor ‘shared’. In other words, even though the resources can be considered to be shared from a physical and natural perspective, it is not possible from a legal standpoint. Consequently, according to that school of thought, it is preferable to refer to the resources concerned as ‘transboundary’ ones.33 That said, the two terms are used interchangeably in international practice.34 In reality, there is no single definition of transboundary natural resources, but one can maintain that such are those resources located in an area that has a land, river, lake or maritime boundary separating two states or a state and a maritime zone beyond the limits of national jurisdiction.35 Therefore, one can identify two strictly geographic situations that characterize those types of resources: firstly, resources that two or more states can access and, secondly, resources whose exploitation by one state inevitably impacts on the ability of the other(s) to utilize 31 In this regard, see A.O. Adede, ‘United Nations Efforts Toward the Development of an Environmental Code of Conduct for States Concerning Harmonious Utilization of Shared Natural Resources’, Albany Law Review, Vol. 43, 1978-1979, pp. 488-512; M. Gestri, La gestione delle risorse naturali di interesse generale per la Comunità internazionale, G. Giappichelli Editore, Turin, 1996. See also Co-operation in the Field of the Environment Concerning Natural Sources Shared by Two or More States. Report of the Executive Director (UN Doc. UNEP/GC/44), para. 86; Report of the Intergovernmental Working Group of Experts on Natural Resources Shared by Two or More States on the Work of Its Fifth Session (UN Doc. UNEP/ IG.12/2), para. 16. 32 See J.A. Barberis, Los recursos naturales compartidos entre Estados y el derecho internacional, Tecnos, Madrid, 1979. 33 See Székely 1986, pp. 735-736. 34 Accordingly, likewise in this work those terms will be used interchangeably. 35 See Székely 1986, p. 736.

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Maria Rosaria Mauro the resources in question.36 Accordingly, those resources are to be distinguished from ‘global’ ones like the air, since it is not a feature of the latter, although shared by all states, that their access is limited to just some states.37 Therefore, one speaks of transboundary resources in both the case of a deposit through which a boundary runs, for example gold, and in the case of resources that go from one side of the boundary to the other, as can occur for oil, natural gas, straddling fish stocks and other migratory species. Transboundary natural resources can thus be living or non-living. As regards the latter category, they in turn can be mobile or stationary. Hydrocarbons are mobile in that it is “a natural resource which is not only transected by a national frontier, but which is capable of traversing that frontier by virtue of its state of flux.”38 In conclusion, mineral resources are defined as transboundary when two conditions are met: (i) the deposit lies on both sides of a boundary between two states or the line between a state and the international seabed and (ii) the part of the deposit on one side of the dividing line can be exploited in whole or in part from the other side. Because transboundary hydrocarbons extend across a boundary between a number of states, there is a problem linked to the contrast between the natural unity of the deposit and the possibility that more than one state may claim sovereignty over it. As regards the international rules applicable to transboundary resources, they are not yet well developed even though it is evident that the conservation and exploitation of those types of resources call for cooperation among all of the parties involved. The first examples of international rules in relation to transboundary natural resources concern international rivers, i.e., those watercourses that cross or separate a number of states.39 As far back as the eighteenth and nineteenth centuries, numerous bilateral agreements were concluded to govern those rivers and, in particular, navigation thereon, which agreements in general espoused freedom of navigation.40 Much more recently, a need was felt to regulate also other aspects of those rivers, and 1997 witnessed the conclusion of the United Nations Convention on the Law of Non-Navigational Uses of International Watercourses,41 which lays down three important principles, applicable also with reference to the exploitation of transboundary hydrocarbons: obligation to utilize 36 See J. Rainne, ‘The Work of the International Law Commission on Shared Resources: The Pursuit of Competence and Relevance’, Nordic Journal of International Law, Vol. 75, 2006, p. 323; N. Matz-Lück, ‘The Benefits of Positivism: The ILC’s Contribution to the Peaceful Sharing of Transboundary Groundwater’, in G. Nolte (Ed.), Peace Through International Law. The Role of the International Law Commission, Springer, Dordrecht, 2009, p. 130. 37 See Matz-Lück 2009, p. 130. 38 In this regard, see Z. Beyene & I.L.G. Wadley, Common Goods and the Common Good: Transboundary Natural Resources, Principled Cooperation, and the Nile Basin Initiative, Breslauer Symposium on Natural Resource Issues in Africa, Centre for African Studies, Berkeley, UC Berkeley, 20 April 2004, which can be viewed at , p. 3. 39 In this regard, see A. Gioia, Manuale breve. Diritto internazionale, Giuffrè Editore, Milan, 2010, p. 175. 40 In this regard, see C. Yamada, ‘Shared Natural Resources: First Report on Outlines’ (UN Doc. A/CN.4/533). 41 The Convention, not yet in force, was adopted by the General Assembly of the United Nations on 21 May 1997.

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16  The Exploitation of Offshore Transboundary Marine Resources international watercourses and participate in their development and protection in an equitable and reasonable manner,42 obligation not to cause significant harm to other watercourse states43 and general obligation to cooperate.44 On a more general level, the question of the legal rules governing transboundary natural resources was considered at the United Nations Conference on the Human Environment in 1972, although then, because of differences among the various delegations, no paragraph on the matter was included in the Declaration on the Human Environment adopted on that occasion.45 However, in the following year, the need to develop an effective system of cooperation for the conservation and exploitation of natural resources shared by a number of states was highlighted in the Economic Declaration adopted by the Fourth Conference of Heads of State or Government of the Non-Aligned Countries in Algiers.46 Again in 1973, the UN General Assembly adopted Resolution 3129, which for the first time referred to the concept of ‘shared natural resources’. The terms of that resolution highlighted the need “to ensure effective cooperation between countries through the establishment of adequate international standards for the conservation and harmonious exploitation of natural resources common to two or more states in the context of the normal relations existing between them,” and a mandate was given to UNEP (United Nations Environment Programme) to draw up those standards.47 Moreover, that same resolution provides that cooperation 42 According to Art. 5: “1. Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse. 2. Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.” 43 According to Art. 7: “1. Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States. 2. Where significant harm nevertheless is caused to another watercourse State, the States whose use causes such harm shall, in the absence of agreement to such use, take all appropriate measures, having due regard for the provisions of articles 5 and 6, in consultation with the affected State, to eliminate or mitigate such harm and, where appropriate, to discuss the question of compensation.” 44 According to Art. 8: “1. Watercourse States shall cooperate on the basis of sovereign equality, territorial integrity, mutual benefit and good faith in order to attain optimal utilization and adequate protection of an international watercourse. 2. In determining the manner of such cooperation, watercourse States may consider the establishment of joint mechanisms or commissions, as deemed necessary by them, to facilitate cooperation on relevant measures and procedures in the light of experience gained through cooperation in existing joint mechanisms and commissions in various regions.” 45 See the Declaration of the United Nations Conference on the Human Environment, adopted at Stockholm on 16 June 1972. 46 See the Economic Declaration adopted by the Fourth Conference of Heads of State or Government of Non-Aligned Countries, held at Algiers from 5 to 9 September 1973. 47 See, respectively, paras. 1 and 3 of GA Res. 3129 (XXVIII), Co-operation in the Field of the Environment Concerning Natural Resources Shared by Two or More States, adopted on 13 December 1973.

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Maria Rosaria Mauro between the countries that share those resources interested in exploiting them should be based on a system of information and prior consultation.48 The resolution thus reveals an ever growing awareness of the need to lay down clear legal obligations in relation to the exploitation of shared resources and constitutes a first attempt at developing principles applicable to that exploitation.49 In 1974 the UN General Assembly adopted the renowned Charter of Economic Rights and Duties of States,50 Article 3 of which proclaims principles similar to those mentioned above inasmuch as it states that “[i]n the exploitation of natural resources shared by two or more countries, each state must co-operate on the basis of a system of information and prior consultations in order to achieve optimum use of such resources without causing damage to the legitimate interest of others.” Therefore, according to that article a state is entitled to be informed and consulted by neighbouring states when the latter wish to exploit mineral resources of a transboundary nature. The content of the Charter was reiterated in more detail in the Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, adopted in 1978 by UNEP,51 which encourage states to cooperate in fostering the equitable use of shared natural resources. Those principles, in particular, highlight that it is necessary, consistent with the concept of equitable utilization of shared natural resources, that states cooperate with a view to controlling, preventing, reducing or eliminating adverse environmental effects that may result from the utilization of such resources. They advocate that states should endeavour to enter into agreements to regulate the utilization of shared natural resources, and in doing so should consider the establishment of institutional structures, such as joint international commissions, for consultations on environmental problems relating to the protection and use of the shared natural resources. It is further specified that any such cooperation is to take place on an equal footing and taking into account the sovereignty, rights and interests of the states concerned.52 In its Resolution 34/186 the UN General Assembly then invited the states “to use the principles as guidelines and recommendations in the formulation of bilateral or multilateral conventions regarding natural resources shared by two or more states, on the basis of the principle of good faith and in the spirit of good neighbourliness and in such a way as to

48 See para. 2. 49 In this regard, see R.R. Bundy, ‘Natural Resources Development (Oil and Gas) and Boundary Disputes’, in Blake, Hildesley & Pratt, 1995, pp. 36-37. 50 See GA Res. 3281 (XXIX), Charter of Economic Rights and Duties of States, adopted on 12 December 1974. 51 See Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, adopted by the Governing Council of the United Nations Environment Programme (Decision 6/14 of 19 May 1978). 52 See Principles 1 and 2. In this regard, see P.J. Sands, J. Peel & A. Fabra, Principles of International Environmental Law, 3rd edn, Cambridge University Press, Cambridge, 2012, pp. 36-37.

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16  The Exploitation of Offshore Transboundary Marine Resources enhance and not adversely affect development and the interests of all countries, in particular the developing countries.”53 Apart from those provisions of soft law, specific binding rules on transboundary resources were included in UNCLOS: specifically, the provisions in relation to stocks occurring within the EEZs of two or more coastal states or both within the EEZ and in an area beyond and adjacent to it,54 highly migratory species,55 anadromous stocks56 and catadromous stocks.57 Those provisions protect the sovereign rights of coastal states in relation to the resources concerned. Provisions governing transboundary marine biological resources can also be found in the United Nations Agreement for the Implementation of the Provisions of the UNCLOS of 10 September 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, concluded in 1995,58 which lays down a series of principles applicable to those resources, providing in particular for international cooperation to conserve them and to promote their optimum utilization.59 By contrast, there are no multilateral agreements dealing with shared mineral resources. What is particularly striking is that the Montego Bay Convention has no rules on transboundary mineral resources. In fact, UNCLOS contains only two provisions that specifically concern non-living natural resources: Articles 82 and 142. The latter refers to activities in the Area, with respect to resource deposits in the Area that lie across limits of national jurisdiction, and provides for consultations, including a system of prior notification. Article 82 relates to payments and contributions by coastal states with respect to the exploitation of non-living resources on the continental shelf beyond 200 nautical miles. The lack of rules in relation to transboundary mineral resources located on the continental shelf between two immediately adjacent neighbouring states is probably due to the importance of the resources, which led delegations to avoid adopting detailed rules governing their exploitation. The sole provisions in the Montego Bay Convention relevant to the exploitation of crossborder deposits would appear to be Articles 74(3) and 83(3), which relate to the delimitation of EEZs and the continental shelf, respectively, further to which, pending agreement on delimitation, the states concerned, in a spirit of understanding and cooperation, must make every effort to enter into provisional arrangements of a practical nature and, during that transitional period, to not jeopardize or hamper the reaching of the final agreement. 53 See GA Res. 34/186, Co-operation in the Field of the Environment Concerning Natural Resources Shared by Two or More States, adopted on 18 December 1979. 54 See Art. 63. 55 See Art. 64. 56 See Art. 66. 57 See Art. 67. 58 The Agreement was adopted at New York on 4 August 1995 by the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks and opened for signature on 4 December 1995. It entered into force on 11 December 2001. 59 See, in particular, Arts. 5 and 7.

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Maria Rosaria Mauro According to some authors, in inviting the states to conclude provisional arrangements of a practical nature ‘in a spirit of understanding and cooperation’, both Article 74 and Article 83 seek to promote the joint development of the mineral resources,60 although without expressly saying so. Therefore, from those articles one could deduce a general principle of cooperation between the states for the exploration and exploitation of common deposits.61 Recently the issue of shared natural resources has been addressed by the International Law Commission, which included it on its agenda in 2002, splitting it into two topics: transboundary aquifers and transboundary oil and gas resources. However, it soon became evident that the two topics were quite different from each other and the majority of the states were against the inclusion of the oil and gas aspects on the Commission’s agenda. In fact, it was argued that the issue of oil and gas was significantly different from that of aquifers, that it was an issue strictly connected to the interests of the states involved, that the issue could not be separated from that of delimitation of the boundaries, that the issue was not one that lent itself to codification and finally that it was a sensitive issue from a political standpoint and complex on a technical level.62 It was also felt that there was no need to codify the subject or develop universal rules for an area that was essentially regulated by bilateral agreements.63 As a result of the uncertainty shown by the states on the matter, in 2010 the Commission decided not to go ahead with its work in relation to hydrocarbons,64 but to limit itself to dealing with aquifers.65 The Commission’s decision to exclude transboundary mineral resources from its agenda is further confirmation of the reluctance of states to set out, on a non-bilateral level, binding legal rules governing the utilization of transboundary mineral resources. Agreement between the states concerned for the exploration and exploitation of the shared mineral resources is thus fundamental. This raises the question of what rights and duties the states concerned have in the absence of such an agreement. The literature espouses three views regarding the rules that one should apply to the exploitation of cross-border deposits of hydrocarbons.66 One view calls for the application of the ‘rule of capture’, i.e. the first state to commence extraction is entitled to the entire deposit, a rule recognized in the domestic law of a number 60 See Mensah 2006, pp. 149-150. 61 In this regard, see K. Urdaneta, ‘Transboundary Petroleum Reservoirs: A Recommended Approach for the United States and Mexico in the Deepwaters of the Gulf of Mexico’, Houston Journal of International Law, Vol. 32, 2010, pp. 372-373. 62 See S. Murase, ‘Shared Natural Resources: Feasibility of Future Work on Oil and Gas’ (UN Doc. A/CN.4/621). 63 See ‘Shared Natural Resources: Comments and Observation Received from Governments’ (UN Doc. A/CN.4/607). 64 See Murase, UN Doc. A/CN.4/621. 65 See International Law Commission, Report on the Work of its Sixty-second Session – 3 May to 4 June and 5 July to 6 August 2010 (UN Doc. A/65/10), pp. 342-344, paras. 374-384. 66 See Lagoni 1979, pp. 219-221.

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16  The Exploitation of Offshore Transboundary Marine Resources of countries, including the United States.67 However, applying that principle risks sparking a drilling race between states and an ensuing inefficient utilization of the ­resources. Furthermore, the principle of good faith would require states to refrain from appropriating the resources while awaiting an equitable division of the resources. In effect, the majority of national laws on this subject provide for cooperation in the exploitation of common oil reserves68 such that the rule of capture cannot be considered to be a general principle of law recognized by civilized nations.69 According to a second view, in the absence of an agreement on cooperation and sharing the output of the resources, the principle of sovereignty over the subsoil should be applied to common liquid mineral deposits. Since, however, a number of states would inevitably start drilling in competition with one another, it would be necessary to develop rules also for these types of deposits.70 The idea that specific rules must be applied in the case of oil and gas is based on the fact that such resources are in a state of flux and can migrate, which can hinder the application of the principle of territorial sovereignty unlike in the case of solid minerals in respect of which the principle can be rigidly applied. A third view advocates solutions informed by an approach that can best be described as ‘cooperative’, aimed at avoiding drilling by all and sundry. Therefore, some authors stated that in those circumstances one should apply the principle of territorial sovereignty over the subsoil, while at the same time guaranteeing compliance with the obligation not to cause harm to another state and the obligation to exchange information and consult one another on issues relating to the common deposits.71 According to yet another author, moreover, the states concerned would have joint property rights and vested interests in the common deposits.72 In support of this last view, based on cooperation between the states concerned in the utilization of the common mineral resources, it is argued that international law prohibits the unilateral exploitation of such resources73 and reference is made to the broad and generally uniform practice of international joint development agreements and the clauses

67 In this regard, see C. Robson, ‘Transboundary Petroleum Reservoirs Legal Issues and Solutions’, in Blake, Hildesley & Pratt, 1995, p. 6, according to whom: “The rule stated that petroleum produced from a shared deposit was the property of the party who produced it. The principle of the rule was probably based on the concept of possession. By analogy with the ancient common law rules relating to wild animals and birds, the principle was that until reduced to possession no-one had title to petroleum.” 68 Ibid., p. 6. 69 See Lagoni 1979, p. 220. 70 See J. Andrassy, ‘Les relations internationales de voisinage’, Recueil des Cours de l’Académie de droit international de La Haye, Vol. 79, 1951, p. 127. 71 See J.A. Barberis, ‘Los recursos minerales compartidos entre Estados y el derecho internacional’, Derecho de la integratión, Vol. 8, No. 18/19, 1975, pp. 55 et seq. 72 See W.T. Onorato, ‘Apportionment of an International Common Petroleum Deposit’, International & Comparative Law Quarterly, Vol. 26, 1977, p. 328. Critical of that view is Lagoni 1979, p. 221. 73 See M. Miyoshi, The Joint Development of Offshore Oil and Gas in Relation to Maritime Boundary Delimitation, International Boundaries Research Unit, University of Durham, Durham, 1999, p. 5.

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Maria Rosaria Mauro contained in maritime delimitation agreements envisaging an obligation for the states parties to cooperate in the exploitation of common deposits of liquid minerals. Moreover, as we shall see, it is necessary to establish whether one can actually deduce from that international practice the existence of a customary obligation to cooperate in the exploitation of transboundary mineral resources. 16.4 Models of Joint Development Agreements for the Exploitation of Marine Mineral Resources In international law, there is no one single concept of joint development, and nor is there any single method through which that form of international cooperation can be implemented.74 Indeed, there is a debate in the literature as to whether by definition joint development includes unitization,75 how many forms and what types of joint development exist and even how long that form of cooperation can last for.76 In that context, however, joint development is generally understood to mean exploitation of the resources of the seabed through cooperation between the states or, more precisely, “cooperation between States with regard to the exploration for and exploitation of certain deposits, fields or accumulations of non-living resources which either extend across a boundary or lie in an area of overlapping claims.”77 Therefore, states resort to joint development of the mineral resources in two different cases: (i) for the development of resources located in areas of a continental shelf not yet 74 It should be noted that also with reference to the exploitation of biological resources, states often resort to forms of international economic cooperation, especially when, for geomorphologic or environmental reasons, a number of states claim exclusive exploitation rights for a given marine area. For example, the states may conclude bilateral agreements whereby they recognize reciprocal rights and duties to fish in marine areas over which one of them has sovereignty. Moreover, they could sign agreements that regulate in general the setting up of joint ventures among a number of enterprises or companies incorporated in one of the states. In other cases, joint finishing zones may be formed, which at times make provision for joint bodies endowed with various powers. See, in this regard, A. Del Vecchio, ‘Note preliminari ad uno studio sulle joint ventures nel settore della pesca’, Il Diritto marittimo, Vol. 94, 1992, pp. 30-54; Ibid., ‘Considerations on the Management of Joint Fishing Zones in the Mediterranean’, in G. Cataldi (Ed.), La Méditerranée et le droit de la mer à l’aube du 21e siècle [The Mediterranean and the Law of the Sea at the Dawn of the 21st Century], Actes du colloque inaugural de la Asociation Internationale du Droit de la Mer (Naples, 22-23 March 2001), Bruylant, Brussels, 2002, pp. 221-240. 75 There are essentially two main views in this regard: according to one school of thought joint development would include unitization, whereas for other authors joint development excludes all unitized operations. 76 See, in this regard, C.B. Okafor, ‘Joint Development: An Alternative Legal Approach to Oil and Gas Exploitation in the Nigeria-Cameroon Maritime Boundary Dispute?’, The International Journal of Marine and Coastal Law, Vol. 21, 2006, pp. 493 et seq. 77 This definition is given by Lagoni, Rapporteur to the Exclusive Economic Zone Committee of the International Law Association. See R. Lagoni, International Committee on the Exclusive Economic Zone: Report on Joint Development of Non-Living Resources in the Exclusive Economic Zone (1988), International Law Association [unpublished], cited in Okafor 2006, p. 494, n. 30.

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16  The Exploitation of Offshore Transboundary Marine Resources delimited, and because the states concerned do not manage to agree on the delimitation of the maritime zones, they often – as mentioned above – put that issue to one side and opt for forms of joint development in order to enable joint exploitation of the resources there to proceed78; (ii) for the exploitation of common mineral deposits that extend across the boundaries of a continental shelf. Therefore, one can define a joint development agreement as a sort of treaty signed by two states for the joint production and exploitation of mineral resources located in disputed areas whose boundaries have not yet been defined or deposits straddling a boundary between states. The purpose of that type of agreement is thus to allow the parties to exploit and share the resources together, in their agreed proportions, in particular the oil (joint petroleum development agreement) present in a designated area of the bed or subsoil of the continental shelf and/or EEZs, while at the same time protecting the rights of both of the states. The idea of a joint development of offshore mineral resources was raised as far back as the first continental shelf delimitation case submitted to the ICJ. In fact, in its judgment in the 1969 North Sea Continental Shelf cases, the court identified the unity of the deposits extending across a boundary as one of the factors that the parties should take into account in delimiting the continental shelf common to them79 and maintained that joint development agreements were a particularly appropriate solution when it is a question of preserving the unity of the deposit.80 The need for a joint development of resources is highlighted especially in the separate opinion of Judge Jessup attached to the judgment, who strenuously maintained that there was a need for greater cooperation in the development of shared mineral resources, although he did go on to say that such was not necessarily considered to reveal an emerging rule of international law.81 A few years after that landmark judgment, a joint development agreement was concluded in 1974 between Japan and South Korea,82 constituting the first example of joint exploitation of offshore oil owing to the absence of an agreement between the parties as to the delimitation of their boundaries. Therefore, where boundaries have already been delimited, joint development agreements prevent a violation of the parties’ respective rights, especially in relation to the exploitation

78 See Mensah 2006, p. 147. 79 See the judgment of 20 February 1969 in the North Sea Continental Shelf cases, at 51-52, para. 97. 80 Ibid., p. 52, para. 99. Moreover, according to the Court, p. 53, para. 101(C)(2): “if, in the application of the preceding sub-paragraph, the delimitation leaves to the Parties areas that overlap, these are to be divided between them in agreed proportions or, failing agreement, equally, unless they decide on a regime of joint jurisdiction, user, or exploitation for the zones of overlap or any part of them.” 81 See the separate opinion of Judge Jessup annexed to the judgment in the North Sea Continental Shelf cases, at 83. Moreover, the judge noted that the principle of international cooperation in the exploitation of the natural resources is well established in other examples of international practice (at 82). 82 See the Agreement between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, concluded at Seoul on 5 February 1974.

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Maria Rosaria Mauro of the resources. In other cases, such agreements facilitate the delimitation of boundaries inasmuch as that aspect is separated from the issue of the exploitation of the resources, which fall under a joint regime. There are various types of cooperation agreements for the joint exploitation of mineral resources. Those agreements can above all concern either joint deposits that have already been discovered or those that may be discovered in the future. Agreements falling within the first category can in turn be informed by four cooperation models. Firstly, there can be so-called ‘geological cooperation’, which has two distinguishing features: neither party enjoys jurisdiction over the joint deposit in its entirety, and each party exploits its own share based on annual calculations. Furthermore, the parties must periodically consult with each other and exchange data on previous output and the condition of the deposit.83 Secondly, there are agreements that provide for joint development through concessions granted by both parties, who agree a dividing line in advance and exercise jurisdiction on their side of it. The concessionaires are obliged to cooperate through the conclusion of contracts that regulate the calculation of reserves, the output, the distribution of proceeds and the resolution of disputes.84 Thirdly, there are agreements that provide for a unitized exploitation of the common deposit or specific fields: in those cases, there is a single operator who manages the deposit on behalf of all of the parties.85 The main purpose of this type of agreement is to avoid wasting resources or duplicating drilling installations, oil wells and production facilities, agreeing on international cooperation and a peaceful exploitation of the mineral deposits, especially in areas disputed by a number of states. Finally, there is a fourth model of cooperation, whereby the parties exercise joint power over the mineral resources present in a given area. Unlike the first three models described above, in this latter one, the states are joint holders of the ownership rights and vested interests in the common deposit. Cooperation is achieved through joint sovereign authority over the area itself or in the form of conventionally established equal sovereign rights over the natural resources in a certain area.

83 See, e.g., the Agreement between the Government of the Czechoslovak Republic and the Austrian Federal Government Concerning the Working of Common Deposits of Natural Gas and Petroleum, concluded at Prague on 23 January 1960. It should be noted that the agreement in question concerned onshore common oil and natural gas reserves. 84 See, e.g., the Supplementary Agreement to the Treaty Concerning Arrangements for Cooperation in the Ems Estuary (Ems-Dollard Treaty), concluded at Bennekom on 14 May 1962, between the Netherlands and Germany. 85 See, e.g., the Agreement Concerning the Establishment of Boundary in the Northern Part of the Continental Shelf Adjacent to the Two Countries between Japan and the Republic of Korea, concluded at Seoul on 30 January 1974, and the 1976 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway Relating to the Exploitation of the Frigg Field Reservoir and the Transmission of Gas Therefrom to the United Kingdom.

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16  The Exploitation of Offshore Transboundary Marine Resources As mentioned before, it can happen that through the agreements the parties regulate the exploitation of common deposits that may be discovered in the future. In this case there is a ‘mineral deposit clause’, which although varying from agreement to agreement, always provides for an obligation for the parties to negotiate with a view to putting in place a cooperation arrangement should a common deposit be discovered in the continental platform of both states.86 A clause of this type has been included in numerous continental shelf delimitation agreements. Accordingly, it is evident that, apart from the question of delimitation, cooperation would appear to be essential for the parties in the event of discovery of common deposits of hydrocarbons. Apart from the classification just indicated, there are other ways in which cooperation agreements for the joint development of mineral resources can be categorized. Of ­particular importance in this respect is the distinction between cross-border unitization and joint development agreement. Both are examples of cooperation aimed at preserving the unity of a deposit and avoiding competing drilling and production, while at the same time respecting the sovereign rights of the states concerned, but there are some significant differences between the two models for exploiting transboundary mineral resources. Cross-border unitization is defined as the “unitization which takes place for a reservoir underlying two or more countries that have a delimited border between them. Such unitization will typically involve two or more different licensees.”87 By contrast, a joint development agreement for a joint development zone is “an agreement between countries that authorizes the cooperative development of […] resources in a geographic area that has (or had) disputed sovereignty.”88 Accordingly, some differences between the two models can be pinpointed. Firstly, crossborder unitization concerns an area that has a delimited border, whereas a joint development agreement concerns an area where the borders have yet to be delimited. Cross-border unitization occurs after the discovery of the deposit, while a joint development agreement is drawn up before exploitation gets underway. Cross-border unitization refers to the management of a specific single reservoir or field, whereas a joint development agreement regulates the exploitation of resources located in an area the jurisdiction over which is disputed and that is generally larger than a single reservoir or field. In cross-border 86 See, e.g., Art. 4 of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway Relating to the Delimitation of the Continental Shelf between the Two Countries, concluded at London on 10 March 1965, according to which: “If any single geological petroleum structure or petroleum field, or any single geological structure or field of any other mineral deposit, including sand or gravel, extends across the dividing line and the part of such structure or field which is situated on one side of the dividing line is exploitable, wholly or in part, from the other side of the dividing line, the Contracting Parties shall, in consultation with the licensees, if any, seek to reach agreement as to the manner in which the structure or field shall be most effectively exploited and the manner in which the proceeds deriving therefrom shall be apportioned.” 87 See J.L. Weaver & D.V. Asmus, ‘Unitizing Oil and Gas Fields Around the World: A Comparative Analysis of National Laws and Private Contracts’, Houston Journal of International Law, Vol. 28, 2006, p. 14. 88 Ibid., p. 15.

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Maria Rosaria Mauro unitization the concessionaires have a single development plan and a unit operating agreement subject to the approval of the states concerned, whereas a joint development agreement involves a single body that exclusively exercises authority and is empowered to set the rules, decide on the tax treatment and together exercise joint management. Finally, the benefits and costs are split in proportion to the share of the field (so-called ‘participation factor’) in the case of cross-border unitization and on a predetermined basis in the case of a joint development agreement. 16.5 The Legal Regime Provided for by Joint Development Agreements Joint development agreements can be structured in various ways. However, there are certain general issues normally addressed in those agreements: the geographical scope of the joint development area, the apportionment of resources and profits, the model for managing the joint development, the institutional framework, the resolution of disputes and the applicable law. Regarding the first issue, it should be said that only rarely will an agreement not make reference to a precise geographic area, for example, the 1960 Agreement between Austria and Czechoslovakia dealing with common deposits of natural gas and oil89 referred solely to a named deposit whose extension was to be decided by the states parties after the setting up of a technical commission in charge of calculating the resources on site. However, agreements normally identify precise geographic areas in relation to the resources to be exploited.90 Other times, the area concerned is divided into a number of zones.91 The geographic scope of application of the agreements can also cover a wide area and need not be limited to a given deposit or specific zone. 89 See the 1960 Agreement Concerning the Working of Common Deposits of Natural Gas and Petroleum. 90 For example, the Norwegian-United Kingdom Agreement of 1976 on the Frigg Field Gas Reservoir defines the area on the basis of geographic and geological factors. Also the following agreements make reference to geographic coordinates: the Agreement on Settlement of Maritime Boundary Lines and Sovereign Rights over Islands, concluded on 30 March 1969, between Abu Dhabi and Qatar, the 1974 Convention sur le delimitation des plateaux continentaux des deux Etats dans le Golfe de Gascogne (Golfe de Biscaye) between France and Spain, the Agreement on the Continental Shelf between Iceland and Jan Mayen, concluded at Oslo on 22 October 1981, between Iceland and Norway, and the Memorandum of Understanding on the Establishment of the Resources of the Sea-bed in a Defined Area of the Continental Shelf of the Two Countries in the Gulf of Thailand, concluded at Chiang Mai on 21 February 1979, between Malaysia and Thailand. 91 E.g., the Ems-Dollard Treaty between the Federal Republic of Germany and the Netherlands setting up a joint development zone in the Ems Estuary, which a provisional line divides into two subzones, one of each reserved to a country (see the Treaty between the Kingdom of the Netherlands and the Federal Republic of Germany Concerning Arrangements for Cooperation in the Ems Estuary, concluded at The Hague on 8 April 1960; the 1962 Supplementary Agreement to this Treaty). On the other hand, the 1974 Agreement between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries defines nine subzones. Finally, a ‘zone of cooperation’, defined on the basis of geographic coordinates and divided into three areas, was set up by Australia and Indonesia in 1989 in East Timor continental shelf (see the Timor Gap Treaty, officially known as the Treaty on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, concluded over the Zone of cooperation on 11 December 1989).

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16  The Exploitation of Offshore Transboundary Marine Resources The sharing of the resources is the key aspect of the agreement, since it is necessary to define the share of the resources to be allocated to each state. In this regard, it is necessary to identify solutions that will safeguard the rights of both of the states, while at the same time laying down a series of obligations that they have to comply with. The agreements with the simplest scheme provide that each party may exploit its own share of the resources in proportion to the size of the deposit on its side of the border,92 reflecting a not very advanced model of cooperation. But often more evolved regimes are agreed, reflecting highly complex and structured arrangements with specific rules on jurisdiction and the splitting of the profits. Linked to how the resources are to be shared is another very important aspect, i.e. the management model through which joint development of the resources is to be implemented. In particular, joint development agreements usually provide for one of three types of management: the single-state model, the two-state/compulsory joint venture system model and the joint authority model. The first scenario entails a system whereby one of the states manages the development of the resources in the area concerned on behalf of the other state involved, to which profits are distributed after deducting development costs. In this case, the joint development is subject to the law and jurisdiction of the managing state. An example of this type of management can be found in the 1958 Agreement between Bahrain and Saudi Arabia93 providing that exploitation is to occur in accordance with what is decided by Saudi Arabia but half of the profits are to go to Bahrain, a solution dictated by the fact that the entire area lay on the continental shelf of Saudi Arabia.94 On other occasions a compulsory joint venture system model is used, whereby the states concerned provide for a compulsory joint venture between states or between oil companies designated in relation to a defined area. An example of this type of arrangement is the 1974 Agreement between Japan and South Korea95 under which both parties have concessionaires, who shall sign ‘operating agreements’ and shall be entitled to an equal share of

92 See, e.g., the 1960 Agreement between the Government of the Czechoslovak Republic and the Austrian Federal Government Concerning the Working of Common Deposits of Natural Gas and Petroleum, which provided that each state would exploit the resources based on the size of the deposit on their side of the border on the basis of the conditions laid down by a technical commission. 93 See the Agreement Concerning the Delimitation of the Continental Shelf in the Persian Gulf, concluded at Riyadh on 22 February 1958. 94 Likewise, the 1969 Agreement on Settlement of Maritime Boundary Lines and Sovereign Rights over Islands between Abu Dhabi and Qatar provides for the equal division of royalties, profits and costs, but exploitation is in accordance with the terms of a concession granted by Abu Dhabi. By contrast, in the Ems Estuary area, both Germany and the Netherlands exercise jurisdiction and apply their own laws in their respective subzones, but the two countries may grant concessions in accordance with their own domestic law for the entire joint development zone. The concessionaires, whose rights and obligations are specified in detail, are entitled to an equal share of the oil and gas extracted from the entire area. 95 See the 1974 Agreement between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries.

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Maria Rosaria Mauro the resources. According to that agreement, the applicable law is that of the states whose concessionaire is designated as the ‘operator’ in a given subzone. That model was also adopted in the 1974 Agreement between France and Spain,96 whereby each state maintains its own sovereignty and jurisdiction over its respective part of the joint area and provision is made for joint ventures between the companies that operate in each sector and for the exporting of resources discovered in the sector of one state to the other state. Likewise the 1981 Agreement between Iceland and Norway in relation to Jan Mayen97 contains a provision on joint venture contracts, envisaging the possibility for one state to participate with a 25% share in activities carried on in the other state’s sector, either directly with the other state or with governmental or non-governmental companies. There is also a third management model, whereby the states concerned set up a joint ­authority or organization with legal personality under the domestic laws of the states concerned and that is delegated the fundamental decisions in relation to the exploration and exploitation of the resources as well as the exercise of licensing and supervision rights. Compared with the first two models described above, there is a deeper form of cooperation and a granting of greater powers by the states concerned. For example, Saudi Arabia and Sudan have adopted that approach by setting up a commission for the exploitation of the metal deposits in the Indian Ocean that grants licences and concessions, supervises exploitation and decides the applicable law.98 This type of model was also adopted in 1989 by Australia and Indonesia in relation to the Timor Gap.99 The cooperation zone was divided into three areas: A, B and C. In area A, there was joint control, which meant that the rights and duties of the two states in relation to the exploration and exploitation of the oil and gas were to be exercised by the Ministerial Council and the Joint Authority100 through the conclusion of contracts for the division of production. On the other hand, in areas B and C, each state respectively had primacy

96 See the 1974 Convention sur le delimitation des plateaux continentaux des deux Etats dans le Golfe de Gascogne (Golfe de Biscaye). 97 See the 1981 Agreement on the Continental Shelf between Iceland and Jan Mayen. 98 See the Agreement Relating to the Joint Exploitation of the Natural Resources of the Sea-bed and Sub-soil of the Red Sea in the Common Zone, concluded at Khartoum on 16 May 1974. Also the Memorandum of Understanding between Malaysia and Thailand of 1979 provides for a joint authority, which on the parties’ behalf exercises all rights and duties in relation to the exploitation of the area, including the setting of the conditions applicable to the activities carried out. 99 See the 1989 Treaty on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, which was concluded after East Timor had been annexed by Indonesia following the 1975 invasion. After attaining its independence, East Timor concluded three new agreements with Australia, which constitute the basis for the joint development of the oil resources in the Timor Sea: the Timor Sea Treaty (concluded at Dili on 20 May 2002), the International Unitisation Agreement for Greater Sunrise (concluded at Dili on 6 March 2003) and the Australian-East Timor Treaty on Certain Maritime Arrangements in the Timor Sea (concluded at Sydney on 12 January 2006). 100 The Ministerial Council was the body charged with making policy, while the Joint Authority was given the task of managing the exploration and exploitation of the resources.

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16  The Exploitation of Offshore Transboundary Marine Resources subject to an obligation to notify the other party of the production agreements concluded and to pay over 10% of the income tax collected. A different and more complex system is that which provides for unitization of the deposit. As mentioned before, that model for managing the resources concerns dealing with an already discovered deposit that transects a delimited boundary and that is exploited as if it were a single unit. In that case the parties appoint a sole operator and agree to split the profits in proportion to their respective rights. The purpose of that form of cooperation is to preserve the unity of the deposit and avoid excessive drilling and competing production.101 An example of this form of cooperation is the Frigg Field Agreement concluded by the UK and Norway in 1976.102 In addition to the examples just cited, which date back in time somewhat, worthy of mention are two important agreements concluded more recently providing for cooperation between the parties for the joint exploitation of transboundary marine mineral resources: the 2010 Treaty between the Kingdom of Norway and the Russian Federation Concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean and the Agreement between the United Mexican States and the United States of America Concerning Transboundary Hydrocarbon Reservoirs in the Gulf of Mexico.103 The Agreement between Norway and Russia puts an end to a dispute concerning the exploitation of living and mineral resources in the Barents Sea that had lasted for over forty years, during which period the two countries had sought control over the fisheries and oil in the area around the Svalbard Islands.104 The Soviet Union had claimed rights in the Barents Sea as far back as 1928 over an area that extended from its own islands to the ‘sector line’, i.e. the boundary traced from the most western part of the land border to the North Pole, alleging that Norway’s sovereignty over the Svalbard Islands under the Treaty of 9 February 1920105 was limited to territorial waters. Norway, on the other hand, argued that the Svalbard Islands were also entitled to continental shelf areas and an EEZ. In 1978 the two states had concluded a provisional agreement for the exploitation of the fish resources, which, without prejudice to their respective claims, considered the disputed area as a ‘grey zone’ in respect of which

101 On this issue, see Weaver & Asmus 2006, p. 7. 102 See the 1976 Agreement Relating to the Exploitation of the Frigg Field Reservoir and the Transmission of Gas Therefrom to the United Kingdom. The agreement does not affect the parties’ rights and jurisdiction. 103 The Agreement was concluded at Los Cabos on 20 February 2012. 104 On this issue, see T. Neumann, ‘Norway and Russia Agree on Maritime Boundary in the Barents Sea and the Arctic Ocean’, ASIL Insights, Vol. 14, No. 34, 9 November 2010, which can be viewed at ; T. Henriksen & G. Ulfstein, ‘Maritime Delimitation in the Arctic: The Barents Sea Treaty’, Ocean Development & International Law, Vol. 42, No. 1, 2011, pp. 1-21. Regarding the legal regime governing Svalbard, see E. Morelli, Il regime giuridico delle Svalbard e il nuovo diritto del mare, Giuffrè Editore, Milan, 1988. 105 See the Treaty Concerning the Archipelago of Spitsbergen, concluded at Paris on 9 February 1920.

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Maria Rosaria Mauro jurisdiction over vessels from Russia, Norway and third countries was to be exercised in a coordinated fashion. Subsequently, significant mineral resources were discovered in the zone, with estimated reserves of about six thousand billion cubic metres, located mainly in the Shtokman field on the Russian side of the continental shelf and in the Snohvit field on the Norwegian continental shelf. The 2010 Agreement governs the joint development of the cross-border hydrocarbons that extend across the delimited maritime boundary.106 The two parties undertake to consult each other, exchange information, negotiate in good faith and jointly manage the deposits that straddle the boundary. The main feature of the agreement consists of not only the standard clause regulating transboundary hydrocarbon deposits, but also a specific annex describing in detail the procedure for establishing the cooperation regime. In fact, that agreement contains a ‘mineral deposit clause’, as in numerous other bilateral continental shelf delimitation agreements, envisaging cooperation between the parties for the exploitation of transboundary deposits through the conclusion of unitization agreements.107 Additionally, and this is a special aspect, there is an annex specifying the main points of the unitization agreement and setting out the procedure for the resolution of any disputes that might arise between the parties.108 Therefore, provision is made for exploitation of the transboundary mineral resources through unitization agreements to be concluded on the terms already set out in Annex II every time a deposit is discovered.109 In that way, some fundamental issues are resolved at the outset, for example, that the unitization agreement must contain “a statement of the total amount of the hydrocarbon reserves in place in the transboundary hydrocarbon deposit and the methodology used for such calculation, as well as the apportionment of the hydrocarbon reserves between the parties.”110 Furthermore, the unitization agreement must contain a provision obliging the parties to establish a joint commission that allows for continuous consultation and an exchange of information on issues in connection with “planned or existing unitised hydrocarbon deposits.”111 The main agreement also provides that no exploitation may take place until the unitization agreement is concluded.112 Furthermore, the private parties must conclude a joint operating agreement to be approved by the states, the terms of which are not exhaustively

106 According to that agreement, the boundary, for both the continental shelf and the EEZ, is constituted by the median line with the necessary adjustments to take account of the different lengths of the respective coasts. 107 See Art. 5. 108 See Ann. II to the Agreement. 109 See Art. 1 of Ann. II to the Agreement. 110 See Art. 1(3) of Ann. II to the Agreement. 111 See Art. 1(13) of Ann. II to the Agreement. 112 See Art. 5(3).

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16  The Exploitation of Offshore Transboundary Marine Resources indicated in the annex to the agreement,113 but which probably mirror the conditions of the unitization agreement. The Agreement between the United Mexican States and the United States of America Concerning Transboundary Hydrocarbon Reservoirs in the Gulf of Mexico contains important rules for the exploitation of the common deposits that extend across the international maritime boundary between the two countries in the Gulf of Mexico. Its entry into force will bring an end to the current moratorium on oil exploration and production in the Western Gap of the Gulf of Mexico, delimiting the area up to 200 nautical miles from the coast in the Gulf of Mexico.114 That agreement is based on a commitment by the parties to exploit the transboundary reserves in an efficient and fair manner through their joint use.115 The plans for the development of those resources are subject to the approval of both governments. Exploration and exploitation of the two countries’ shared resources are regulated in the second chapter of the agreement, which states that those activities must occur on the terms and conditions set forth in a unitization agreement116 and in a unit operating agreement. The unitization agreement must be negotiated by operators and submitted to each government, which may approve, amend or reject the proposal. To that end the governments must agree on a model unitization agreement, which should then be used by both US and Mexican operators. Before approval of the unitization agreement, the concessionaires must implement a unit operating agreement,117 a more detailed agreement that allows exploration of the shared resources to go ahead. That second agreement specifically governs the carrying on of operations, the appointment of a single operator to carry on those operations and a collective decision-making process. There are incentives for companies who wish to conclude agreements for the joint development of the reserves. If it proves impossible to conclude agreements of that type, the main agreement lays down a procedure through which US companies and the Mexican state oil company PEMEX (Petróleos Mexicanos) can individually develop the resources on their side of the border, while at the same time protecting the interests and resources of each state. 113 There are just some provisions on the matter contained in Art. 1(6) of Ann. II. 114 See Art. 24 of the Agreement, according to which: “Upon entry into force of this Agreement, the period of any moratorium on the authorization or permitting of petroleum or natural gas drilling or exploration of the continental shelf within the boundary ‘Area’ as established by Article 4, paragraph 1, of the 2000 Treaty on the Continental Shelf and extended by any subsequent exchanges of notes shall be terminated.” 115 In this regard, see J.L. Herrera Vaca, ‘The New Legal Framework for Oil and Gas Activities Near the Maritime Boundaries between Mexico and the U.S.: Comments on the Agreement between the United Mexican States and the United States of America Concerning Transboundary Hydrocarbon Reservoirs in the Gulf of Mexico’, Journal of World Energy Law and Business, Vol. 5, No. 3, 2012, pp. 235 et seq. 116 See Art. 6 of the Agreement. 117 See Art. 11 of the Agreement.

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Maria Rosaria Mauro 16.6 Joint Development Agreements: Institutional Framework, Resolution of Disputes and Applicable Law Of key importance for the correct application of joint development agreements are the provisions contained therein in relation to institutional framework, resolution of disputes and applicable law. In this regard a variety of solutions have been adopted by states regarding the framework, which may range from the simple to the complex. As for the resolution of disputes,118 normally provision is made for an internal mechanism that must be used before resorting to an external solution or involving a third party: consultation, negotiation, conciliation and recourse to the ICJ or ad hoc arbitration are common. More recent agreements often envisage a complex dispute resolution system in the sense that one can resort to different procedures and at times different arbitral proceedings depending on the category of disputes that can arise in relation to the interpretation and application of the agreements concerned. The other fundamental aspect is selecting the law applicable to the agreement, given that it will decide the legal system that will regulate the cooperation. The need to make such a choice is evident since every state has its own legal system. The solution as to applicable law varies depending on the type of agreement. Agreements generally provide for a rather limited structure. For example, the 1960 Agreement between Austria and Czechoslovakia119 contemplated a mixed technical commission, whose decisions were deemed to be automatically accepted by the parties unless they raised an objection within a month. That commission was charged with resolving disputes, which could also be settled diplomatically or through arbitration. By contrast, the 1976 Frigg Field Agreement between Norway and the UK120 set up a consultative commission, with main decisions being a matter for the governments themselves. That commission does, however, have power to resolve disputes, failing which they are to be settled by negotiation or an arbitral tribunal. The 1965 Agreement between Kuwait and Saudi Arabia121 makes provision for a joint permanent committee, although for the resolution of disputes the options are the amicable settlement, the Arab League and the ICJ. The 1981 Agreement between Iceland and Norway122 entrusts dispute resolution to a Conciliation Commission.

118 See, on this point, R. Virzo, Il regolamento delle controversie nel diritto del mare: rapporti tra procedimenti, CEDAM, Padua, 2008, pp. 55-61. 119 See the 1960 Agreement between the Government of the Czechoslovak Republic and the Austrian Federal Government Concerning the Working of Common Deposits of Natural Gas and Petroleum. 120 See the 1976 Agreement Relating to the Exploitation of the Frigg Field Reservoir and the Transmission of Gas Therefrom to the United Kingdom. 121 See the 1965 Agreement Relating to the Partition of the Neutral Zone. 122 See the 1981 Agreement on the Continental Shelf between Iceland and Jan Mayen.

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16  The Exploitation of Offshore Transboundary Marine Resources Finally, the 1962 Agreement between Germany and the Netherlands123 opts for arbitration as the means to resolve disputes although issues concerning delimitation may be submitted to the ICJ. In some cases there may be a more complex institutional framework. For example, the 1974 Agreement between Saudi Arabia and Sudan124 in relation to the Red Sea makes provision for a joint commission with broad powers, which may set the boundaries of the zone, grant licences and concessions, oversee exploration and determine applicable law. Disputes may be referred to the ICJ, if required. Similarly, the 1974 Joint Development Agreement between Japan and South Korea125 sets up a joint commission with important powers, especially as regards the resolution of disputes. The 1979 Agreement between Malaysia and Thailand126 and the 1989 Agreement between Australia and Indonesia127 set up a joint authority, it too with wide powers and that assumes the states’ rights and duties in the cooperation zone in question. The authority is a veritable international organization with legal personality that manages all of the activities in the area, including deciding on the terms and conditions of contracts. Resolution of disputes is through consultation and negotiation, besides, the treaty between Australia and Indonesia makes provision for commercial arbitration in relation to productionsharing contracts. Finally, a rather complex regime as regards dispute resolution can be found in the 2001 Treaty between Nigeria and São Tome and Principe128 on the joint exploitation of oil reserves and other resources in some sectors of the two countries’ EEZs. With regard to disputes between the Authority (the body in charge of managing the zone where joint exploitation takes place) and a private investor with whom it has concluded a contract, Article 47(1) of the agreement provides that such disputes must be resolved through compulsory commercial arbitration on the basis of the provisions of the relevant ‘development contract’ or ‘operating agreement’. As for disputes between the two states in relation to the interpretation and application of the treaty, Article 48 provides that the matter must

123 See the 1962 Supplementary Agreement to the Treaty Concerning Arrangements for Cooperation in the Ems Estuary (Ems-Dollard Treaty). 124 See the 1974 Agreement Relating to the Joint Exploitation of the Natural Resources of the Sea-bed and Subsoil of the Red Sea in the Common Zone. 125 See the 1974 Agreement Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries. 126 See the 1979 Memorandum of Understanding on the Establishment of the Resources of the Sea-bed in a Defined Area of the Continental Shelf of the Two Countries in the Gulf of Thailand. 127 See the 1989 Treaty on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia. 128 See the Treaty between the Federal Republic of Nigeria and the Democratic Republic of São Tomé and Príncipe on the Joint Development of Petroleum and other Resources, in respect of Areas of the Exclusive Economic Zone of the Two States, concluded at Abuja on 21 February 2001.

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Maria Rosaria Mauro first be referred to a joint body called the ‘Board of the Authority’. If the said board cannot resolve the dispute, it is to be referred to the ‘Joint Ministerial Council’. If the said council cannot resolve the dispute within a certain period of time, it or any of the states parties may refer it to the two Heads of State for decision. Finally, pursuant to Article 49, for disputes not concerning a ‘matter of policy or administration’ that are not resolved within a short time, either state party may notify the other that it intends to refer the matter to arbitration under Article 49(3). On the other hand, for disputes concerning a matter of policy or administration, Article 49 provides that if the Heads of State do not manage to settle the dispute, either of them may give notice of termination of the treaty under Article 52. By contrast, the 2010 Treaty between the Kingdom of Norway and the Russian Federation Concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean provides that if the parties fail to conclude the unitization agreement referred to therein, the disagreement is to be resolved as rapidly as possible by negotiations or by any other agreed procedure. If the disagreement is not settled within six months following the date on which a party first requested such negotiations, either party is entitled to submit the dispute to an ad hoc arbitral tribunal.129 In the event that a failure to reach agreement concerns the apportionment of the hydrocarbon deposit between the parties, they must appoint an independent expert to decide the issue, which decision is to be binding upon the parties, who may, however, agree that the hydrocarbon deposit is be reapportioned between them.130 Finally, at the institutional level, the 2012 Agreement between the United Mexican States and the United States of America Concerning Transboundary Hydrocarbon Reservoirs in the Gulf of Mexico makes provision for a joint commission, a permanent body consisting of a representative (and alternative) from each country. That body’s task is to assist the two states in administering the agreement, resolving disputes and examining matters referred to it by the parties relating to unforeseen issues arising under the agreement.131 The agreement also provides for joint inspections teams appointed to ensure compliance with the applicable laws.132 As regards the resolution of disputes, the agreement provides for a number of mechanisms. In particular, the parties must make every effort to resolve any disagreement relating to the interpretation and implementation of the agreement through consultations or mediation.133 In other cases, as mentioned above, the Joint Commission intervenes, and if that does not lead to agreement, they may resort to an expert determination,134 which is the sole procedure that is final and binding for the parties under the agreement. Finally, the disputes not subject to expert determination that are not resolved by the Joint 129 130 131 132 133 134

See Art. 3 of Ann. II. See Art. 4 of Ann. II. See Art. 14 of the Agreement. See Art. 18 of the Agreement. See Art. 15 of the Agreement. See Art. 16 of the Agreement.

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16  The Exploitation of Offshore Transboundary Marine Resources Commission or through consultations may be submitted by either party to arbitration in accordance with a mechanism adopted by the Joint Commission.135 Some of the agreements examined include provisions that clarify the status of the joint development area. At times the solution opted for is ‘joint sovereignty’, as in the 1965 Agreement between Kuwait and Saudi Arabia.136 Other times, when the boundaries have already been delimited, a system is adopted whereby each state exercises sovereignty on its side of the border. Where the boundaries have not yet been delimited and remain disputed, the states concerned may include a ‘without prejudice’ clause in the agreement declaring that joint development does not affect sovereignty over the area and does not imply a waiver of rights or claims in relation thereto, as in the 2001 Treaty between Nigeria and Sao Tomé and Príncipe.137 16.7 The Possible Existence of a Customary Duty of Cooperation for the Exploitation of Common Mineral Resources The exploitation of marine mineral resources located in disputed areas or common deposits is thus generally regulated by bilateral agreements that oblige the states parties to cooperate in the development of the oil and gas reserves in question. The ample bilateral practice that exists in connection with joint exploitation of such mineral resources invites the question as to whether under general international law there is an obligation to cooperate in relation to deposits of hydrocarbons crossing a border or located in areas whose sovereignty is disputed. More specifically, the question is whether that cooperation must be implemented through cross-border unitization or joint development agreements.138 In effect, this is a hotly debated topic in the literature.139 In particular, although the literature in general maintains that no customary rule has yet been formed obliging states to conclude agreements for the joint development of common mineral resources,140 some authors maintain that the states are obliged to develop forms of cooperation for the conservation and/or exploitation of the common mineral deposits,141 and there is also one 135 See Art. 17 of the Agreement. 136 See the 1965 Agreement Relating to the Partition of the Neutral Zone. 137 See the Treaty between the Federal Republic of Nigeria and the Democratic Republic of São Tomé and Príncipe on the Joint Development of Petroleum and Other Resources, in respect of Areas of the Exclusive Economic Zone of the Two States. 138 In this regard, see Bundy 1995, pp. 36 et seq. 139 On the various positions adopted by legal writers in this regard, see Okafor 2006, pp. 506–509. 140 See, e.g., D.M. Ong, ‘Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?’, American Journal of International Law, Vol. 93, 1999, p. 797; A.E. Bastida, A. Ifesi-Okoye & S. Mahmud, ‘Cross-Border Unitization and Joint Development Agreements: An International Law Perspective’, Houston Journal of International Law, Vol. 29, 2006-2007, pp. 375 et seq. 141 See Lagoni 1979, p. 235; Ong 1999, p. 802.

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Maria Rosaria Mauro author who claims that the principle of joint development is deeply rooted in customary international law.142 Other authors go so far as to state that unilateral exploitation of those deposits would actually be contrary to international law.143 The truth of the matter is that in such circumstances cooperation is dictated by the difficulty in accurately determining the amount of resources in the part of the deposit located on each party’s continental shelf, but also by the fact that the unilateral extraction of the resources in question from the continental shelf could well damage the conservation or exploitation plans of the other states that share the deposit, as observed by the ICJ in its judgment in the North Sea Continental Shelf cases.144 Therefore, it is argued that the states are compelled to negotiate forms of cooperation not only for economic reasons but also on legal grounds, in other words, the existence of a rule of customary international law that the rights of the other states to exploit or conserve the shared resources must not be prejudiced. Proof of the existence of a customary rule requires one to demonstrate the contemporaneous existence of an objective or material element, i.e. the repetition over time of certain behaviour (practice or diuturnitas), and a subjective or psychological element, i.e. the conviction that the said behaviour is mandatory and prescribed by a legal rule (opinio iuris sive necessitatis).145 Regarding the first element, it should be noted that the principle of cooperation is enshrined in international law, both in soft law and in mandatory law. In fact, the general principle of cooperation between states for the exploitation of shared natural resources is contained firstly in some UN General Assembly resolutions. In particular, Resolution 3129 on Co-operation in the Field of the Environment Concerning Natural Resources Shared by Two or More States of 1973 recognizes the need for effective cooperation between countries through the establishment of adequate international standards for the conservation and harmonious exploitation of natural resources common to two or more states in the context of the normal relations existing between them.146 That need for cooperation for the exploitation of natural resources shared by two or more countries was subsequently reiterated in Article 3 of Resolution 3281 of 1984, i.e. the Charter of Economic Rights and Duties of States. 142 See Z. Gao, ‘The Legal Concept and Aspects of Joint Development in International Law’, Ocean Year Book, Vol. 13, 1998, p. 110. 143 See Onorato 1977, p. 327. 144 See the judgment of 20 February 1969 in the North Sea Continental Shelf cases, at 51, para. 97. 145 The idea that there is a dual requirement for an international custom to be accepted as such has been recognized by the ICJ on numerous occasions. See, e.g., the judgment of 20 February 1969 in the North Sea Continental Shelf cases, at 43-45, paras. 76-78; the judgment of 3 June 1985, in the Continental Shelf case (Libyan Arab Jamahiriya v. Malta), 1985 ICJ Rep., 13, at 29-30, para. 27; the judgment of 27 June 1986, in the Military and Paramilitary Activities in and against Nicaragua case (Nicaragua v. United States of America), Merits, 1986 ICJ Rep. 14, at 97-98, paras. 183-185, and at 108-109, para. 207. 146 See GA Res. 3129 (XXVIII), Co-operation in the Field of the Environment Concerning Natural Resources Shared by Two or More States, para. 1.

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16  The Exploitation of Offshore Transboundary Marine Resources While it is true that UN General Assembly resolutions do not create legal obligations for the states, nonetheless, they can be indicative of the will and orientation of the international community. Furthermore, according to one author, an overall examination of UNCLOS reveals an underlying principle of cooperation between the states in relation to the exploration and exploitation of common deposits.147 In fact, there is a reference to cooperation between the states, in more or less express terms, in various articles of the Convention that could be cited in support of the formation of a possible customary obligation in the matter, ­especially Articles 74(3), 83(3), 123 and 142.148 This latter article, which governs activities in the Area, with respect to resource deposits in the Area that lie across limits of national jurisdiction, provides that those activities “shall be conducted with due regard to the rights and legitimate interests of any coastal State across whose jurisdiction such deposits lie”, and to that end contemplates a system of prior notification and consultations and requires the prior consent of the coastal state if such activities could result in the exploitation of resources lying within national jurisdiction. Article 123 provides that the “States bordering an enclosed or semi-enclosed sea” should cooperate with each other in the exercise of their rights and in the performance of their duties under the Convention. Of more significance for the purposes of the present analysis are Articles 74(3) and 83(3) containing an express reference to cooperation between the states with opposite or adjacent coasts, which provide that pending agreement on delimitation respectively of EEZs and the continental shelf “the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during that transitional period, not to jeopardize or hamper the reaching of the final agreement” with such arrangements being “without prejudice to the final delimitation.” The last two articles cited thus envisage the possibility for a provisional agreement relating to an undelimited area to be concluded before final delimitation. The provisional agreements referred to can also clearly concern areas of joint development of hydrocarbons as well as be aimed at provisionally setting boundaries149 or defining special fisheries areas. However, it should be added that international tribunals have interpreted the expression “every effort” in the article in the sense that the parties must of course make some effort at negotiation, but such does not imply that those same negotiations must ultimately be 147 See Urdaneta 2010, p. 372. 148 See also Art. 5 of the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 September 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, according to which “[i]n order to conserve and manage straddling fish stocks and highly migratory fish stocks, coastal States and States fishing on the high seas shall, in giving effect to their duty to cooperate in accordance with the Convention […]” 149 An example is the Agreement on Provisional Arrangements for the Delimitation of the Maritime Boundary between the Republic of Tunisia and the People’s Democratic Republic of Algeria, concluded at Algiers on 11 February 2002.

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Maria Rosaria Mauro successful. Therefore, although the provisions in question strongly encourage the conclusion of provisional agreements like those for the establishment of joint development zones, they do not create a legal obligation for states to jointly develop the resources, but at most an obligation to consult each other and negotiate a provisional agreement pending final delimitation, in any event leaving the states a wide margin of discretion in choosing the type of provisional agreement to adopt.150 The importance of cooperation between states for the exploitation of mineral resources in the circumstances under consideration can now be deduced also from international case law. In fact, in delimitation disputes resolved by the ICJ or arbitral tribunals151 the establishment of joint development zones was strongly recommended or, at the very least, the parties were urged to cooperate in the exploitation of the resources in the relevant overlapping area as an alternative to delimitation on the basis of an equitable utilization of the shared resources. For example, in its previously mentioned judgment in the North Sea Continental Shelf cases of 1969, the ICJ, though not maintaining that the unity of the deposit was a ‘special circumstance’ for the purposes of establishing the final boundary, stated that such factor should be taken into account in the delimitation process152 and recognized the need to preserve the unity of the deposit so as to achieve optimum exploitation of the oil resources.153 Again, in the Fisheries Jurisdiction cases of 1974, the ICJ stated that in situations involving resources present in disputed areas, both states have an obligation to take full account of each other’s rights and to examine together the measures required for the conservation, development and equitable exploitation of those resources.154 An invitation to cooperate can also be found in the recommendations issued by the Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen relating to a dispute over that island between Iceland and Norway. According to the Conciliation Commission, the oil reserves in an overlapping area claimed by both states had to be jointly developed.155 In that way, apart from the question of the delimitation of the maritime boundary, the Commission seemed to favour a scenario of joint development of the resources. Those recommendations then led Iceland and Norway to establish a joint development zone in their 1981 Agreement on the Continental Shelf between 150 In this regard, see N. Klein, ‘Provisional Measures and Provisional Arrangements in Maritime Boundary Disputes’, The International Journal of Marine and Coastal Law, Vol. 21, 2006, p. 444. 151 On this issue, see N.J. Schrijver, Sovereignty Over Natural Resources. Balancing Rights and Duties, Cambridge University Press, Cambridge, 1997, pp. 277-278. 152 In this regard, see Ong 1999, p. 785. 153 In this regard, see Bastida et al. 2006-2007, p. 382. 154 See the judgment in the Fisheries Jurisdiction case (United Kingdom v. Iceland), Merits, 1974 ICJ Rep. 3, at 31, para. 72 and the judgment in the Fisheries Jurisdiction case (Federal Republic of Germany v. Iceland), Merits, 1974 ICJ Rep. 175, at 200, para. 64. 155 See the Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen: Report and Recommendations to the Governments of Iceland and Norway (May 1981), International Legal Materials, Vol. 20, 1981, pp. 825-827. In this regard, see Ong 1995, p. 82.

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16  The Exploitation of Offshore Transboundary Marine Resources Iceland and Jan Mayen and to make provision for unitization in the event of discovery of cross-border deposits extending across the boundary of the southern part of the joint development zone. Moreover, in its decision in the Gulf of Maine case, the ICJ reiterated that the delimitation of a maritime boundary is not necessarily a panacea for disputes over marine resources. In fact, according to the court, at times there is also a need for greater cooperation between states with opposite or adjacent coasts in order to achieve a better exploitation of the transboundary resources.156 In 1988, after the ICJ’s 1982 judgment in the Continental Shelf case,157 Tunisia and Libya amicably resolved their dispute over the maritime boundary in the Gulf of Gabes, establishing a joint exploration zone and setting up a joint Libyan-Tunisian exploration company. Then, in the dispute between Eritrea and Yemen over sovereignty of the portion of the Red Sea between their respective coasts, in respect of petroleum arrangements and a maritime boundary between the parties, the arbitral tribunal recalled the conclusions of the ICJ in its judgment in the North Sea Continental Shelf cases that disputes on delimitation of overlapping areas of continental shelf should be resolved either by agreement, or failing that by an equal division of the overlapping areas, or by agreements for joint exploitation, the latter solution appearing particularly appropriate when it is a question of preserving the unity of a deposit.158 Furthermore, the arbitral tribunal reiterated that the parties are bound to inform one another and to consult one another on any mineral resources that may be discovered that straddle the single maritime boundary between them or that lie in its immediate vicinity, and stated that they “should give every consideration to the shared or joint or unitised exploitation of any such resources.”159 Finally, also worth noting is the 2007 award of the Permanent Court of Arbitration in Guyana v. Suriname, setting out some important principles for the companies involved in offshore drilling and exploration in disputed areas. In particular, according to the court, in the context of activities surrounding hydrocarbon exploration and exploitation in disputed waters, two classes of activities are permissible: “[The] first comprises activities undertaken by the parties pursuant to provisional arrangements of a practical nature. The second class is composed of acts which, although unilateral, would not have the effect of 156 See the judgment of 12 October 1984 in the Delimitation of the Maritime Boundary in the Gulf of Maine Area case (Canada v. United States of America),1984 ICJ Rep. 246 et seq. 157 See the judgment of 24 February 1982 in the Continental Shelf case (Tunisia v. Libyan Arab Jamahiriya), 1982 ICJ Rep. 18 et seq. See also the dissenting opinion of Judge Evensen annexed to the judgment, at 321, proposing a system of joint exploration and exploitation of the oil resources similar to that which would later be envisioned by the two states in 1988 based on the idea that such a system could represent a fair alternative solution to delimiting the maritime boundary. 158 See the award of 17 December 1999 (Eritrea v. Yemen), award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation), which can be viewed at , para. 84. 159 Ibid., para. 86.

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Maria Rosaria Mauro jeopardising or hampering the reaching of a final agreement on the delimitation of the maritime boundary.”160 Moreover, in the court’s view a distinction has to be drawn between activities of the kind that lead to a permanent physical change, such as exploitation of oil and gas reserves, and those that do not, such as seismic exploration, maintaining that the former would have to be undertaken pursuant to an agreement between the parties to be permissible as they may hamper or jeopardize the reaching of a final agreement on delimitation.161 Finally, the court found that both Guyana and Suriname had violated their obligations under Articles 74(3) and 83(3) UNCLOS to make every effort to enter into provisional arrangements of a practical nature and to make every effort not to jeopardize or hamper the reaching of a final delimitation agreement.162 That last finding could be interpreted as supporting the view that a rule of customary international law is being formed that obliges states to conclude provisional joint development agreements for the exploitation of resources located in disputed maritime areas. In any case, the case law just cited indicates at the very least that joint development is nowadays felt to be a valid instrument for the exploitation of common mineral resources or ones located in disputed areas, which can also constitute an alternative to the delimitation of the maritime boundaries. In fact, it appears from that case law that states should cooperate not only when there are deposits that extend across an already delimited border, but also when the deposits are subject to overlapping claims of sovereignty. Despite this, for as much as practice seems to point towards the gradual affirmation in international law of a general duty of cooperation for the exploitation of transboundary mineral resources and hydrocarbons located in disputed areas, the nature and scope of the principle remains uncertain. Observance of that duty inevitably requires consultation and the exchange of information between the states concerned and even probably implies an obligation for a state to refrain from activities that could irremediably damage the shared resources at the expense of another state. Therefore, one can certainly agree with the opinion expressed by some authors whereby states are obliged by virtue of general international law to at least consult with one another in relation to the exploitation of shared oil and gas reserves163 and to cooperate in solving the problems that stem from any such exploitation.164 160 See the award of 17 September 2007 (Guyana v. Suriname), which can be viewed at , para. 466. 161 Ibid., para. 467. 162 Ibid., para. 488(3). 163 See Bundy 1995, p. 39. 164 See, e.g., Ong 1995, p. 92, according to whom “the question of whether there now exists a duty under international law to co-operate towards joint development, may be answered in the negative, at least in respect of a duty existing under customary international law. Nevertheless, it is possible to impute a lesser type of international legal obligation upon states to co-operate when faced by similar problems arising from shared natural resources, over which the sovereign right to exploit is disputed. The precise extent of this new type of obligation in the international arena cannot as yet be determined, though its presence is readily ascertainable.”

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16  The Exploitation of Offshore Transboundary Marine Resources Moreover, although one can argue that a general duty of cooperation exists, it would not seem possible at this time to conclude that there is also a specific duty for the states concerned to conclude agreements for the joint exploitation of the shared mineral resources, as testified by the heated debate in the literature as to its very existence. In fact, while there are many examples of joint development relating to a variety of geographic areas, the practice is neither constant nor uniform. Neither does it seem that the states believe that there is a legal obligation to conclude agreements of this type.165 Furthermore, there is no international convention that clarifies the exact content of any such specific obligation. Even Articles 74(3) and 83(3) UNCLOS, for example, leave a lot of discretion to the states in choosing the type of provisional agreement to conclude and, in any case, lay down solely an obligation to negotiate in good faith. Finally, while international courts and tribunals have on various occasions championed joint development agreements as an alternative to delimitation,166 in no case has it ever been clearly held that states have an actual obligation to do so. 16.8 Concluding Remarks The exploitation of transboundary oil and gas reserves or those located in disputed areas poses problems concerning what the applicable legal rules are. In this regard, the analysis conducted allows three main conclusions to be drawn. Firstly, the rules governing transboundary mineral resources or ones located in disputed areas always call for cooperation between the states concerned. Secondly, the states concerned often seek out that cooperation even during negotiations on delimitation or when they maintain that transboundary resources could well be discovered in the future in an area where the boundary has already been delimited. Thirdly, the case law on delimitation clearly highlights a need for cooperation between the states in question in order to preserve the unity of the deposit and avoid harmful exploitation. The exploitation of offshore mineral resources thus obliges states to cooperate in order to achieve an optimum and sustainable use of those resources. Moreover, practice confirms the preference for joint development agreements by both sovereign states and companies that operate in that industry. In this sense, one can state that the importance of the economic resources makes the issue of boundaries between the states pale into insignificance. Therefore, the concept of joint development is established in practice among states and in international law. In fact, in the face of the problems associated with deposits that straddle a boundary and the difficulty in reaching an agreement on delimitation, the states 165 See I. Townsend-Gault & W.G. Stormont, ‘Offshore Petroleum Joint Development Arrangements: Functional Instrument? Compromise? Obligation?’, in G.H. Blake, W.J. Hildesley & M.A. Pratt (Eds.), The Peaceful Management of Transboundary Resources, Graham & Trotman, London, 1995, pp. 55 et seq. 166 See the award of 17 September 2007 (Guyana v. Suriname), para. 463.

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Maria Rosaria Mauro concerned seem to have interpreted the obligation under the Montego Bay Convention167 to conclude an agreement to delimit their respective continental shelves and EEZs as an obligation that can be fulfilled through the implementation, at least provisionally, of forms of joint development in harmony with the principle of equity, it too included in UNCLOS.168 On a legal level, moreover, the main issue that arises in that context relates to whether a customary rule exists that in certain circumstances obliges states to jointly exploit offshore mineral resources. As mentioned above, the literature on the point is divided. In point of fact, there is a widespread bilateral practice of cooperation between states when it comes to managing transboundary resources or ones located in disputed areas, and moreover, international case law encourages that cooperation. However, from the analysis undertaken, it would seem that as yet there is no established customary obligation for states to agree on forms of joint development169 both because practice is not uniform and because there would appear not to be an opinio iuris sive necessitatis in that sense proving its existence. Nonetheless, one can conclude that, even in the specific field of exploration and exploitation of hydrocarbons, cooperation between states, or at least between neighbouring ones, is a principle that is taking shape. Therefore, we are witnessing the emergence at least of a rule of general international law whose content reflects the provisions of Article 3 of the Charter of Economic Rights and Duties of States, according to which “[i]n the exploitation of natural resources shared by two or more countries, each State must co-operate on the basis of a system of information and prior consultations in order to achieve optimum use of such resources without causing damage to the legitimate interest of others.”170 The absence of specific rules in UNCLOS and interruption of the International Law Commission’s work on shared mineral resources point to how delicate the issue is and how difficult it is for states to devise a specific set of rules covering the matter that supersedes bilateral international relations. That said, it should be noted that the extensive practice in the area of the joint development of offshore mineral resources confirms that the international community has gone beyond a concept of the management of the seas and the exploitation of the resources therein based rigorously on the principle of sovereignty and the idea of maritime boundaries. In fact, the view that it is necessary to adopt rules for the exploitation of marine resources informed by a wider and more functional approach is gaining strength.171

167 See Arts. 74(1) and 83(1). 168 See P. Mengozzi, ‘La sovranità degli Stati sulle risorse naturali’, in Enciclopedia degli idrocarburi, Vol. IV, which can be viewed at , p. 486. 169 In this regard, see Miyoshi 1999, p. 4. 170 In this regard, see Mengozzi, ‘La sovranità degli Stati sulle risorse naturali’, p. 486. 171 See, in this regard, Del Vecchio 2002, pp. 234-236.

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17

International Law and the Protection of Fishers

Irini Papanicolopulu* 17.1 Fishers and their Protection The contribution of fishers to the ‘world’s well-being and prosperity’ is well documented. In 2010, capture fisheries and aquaculture supplied about 148 million tonnes of fish, and world trade in fish and fishery products in the same year reached about US$109 billion, with an increase of 13% in value terms compared with 2009.1 This significant contribution to world trade is matched by a substantial contribution to economic development, since employment in fisheries and ancillary activities supports the livelihoods of about 10%-12% of the world’s population.2 These results are achieved by some 54 million fishers and fish farmers, more than 38 million of whom are engaged in sea fisheries.3 While the threats that fishers face on a daily basis can be easily imagined, it may come as a surprise that, notwithstanding their relevance for the world’s development and well-being, fishers are among the least protected categories of workers worldwide. This chapter proposes to investigate the extent to which international law rules protect them and to highlight the numerous gaps that need to be filled by states and international organizations.4 One could fundamentally ask: why should international law protect fishers? In the first place, because they work and spend a part of their lives in a very dangerous environment. Harsh weather, long periods spent at sea and unstable working and living conditions render work and life on board fishing vessels particularly hazardous, making fishing one of the most dangerous occupations in the world. In the United States, the fatal work injury rate for fishers and related fishing workers is 152.00 as opposed to the all-worker fatal *

Lecturer in International Law, University of Glasgow and Senior Researcher/Aggregate Professor, University of Milano-Bicocca. Research for this chapter was funded by the European Commission under action FP7-PEOPLE-2009-IEF. This chapter reflects only the author’s views. 1 FAO, The State of World Fisheries and Aquaculture, FAO, Rome, 2012. 2 “Apart from the primary production sector, fisheries and aquaculture provide numerous jobs in ancillary activities such as processing, packaging, marketing and distribution, manufacturing of fish-processing equipment, net and gear making, ice production and supply, boat construction and maintenance, research and administration. All of this employment, together with dependants, is estimated to support the livelihoods of 660-820 million people, or about 10-12 percent of the world’s population.” Ibid., p. 10. 3 Ibid. 4 An overview of national legislation concerning work in the fishing sector is included in Conditions of Work in the Fishing Sector. A Comprehensive Standard (a Convention Supplemented by a Recommendation) on Work in the Fishing Sector, International Labour Office, Geneva, 2003 ("Conditions of Work").

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Irini Papanicolopulu injury rate of 3.60.5 Fishermen in Britain have a one in twenty chance of being killed on the job during the course of their working lives.6 Secondly, fishers also face man-made threats. In addition to the hazards associated with weather and the catch activity itself, the fishing industry is home to some of the worst examples of abuse in the workplace. Illegal fishing operations, in particular, are often characterized by the lowest standards of working conditions and extensive reports of abuse.7 Lack of safety equipment and training, long working hours, refusal to pay for work, verbal and physical abuse and abandonment of crew members have been documented in many cases.8 Finally, fishers may need protection even when engaging in illegal activities, as recent cases submitted to international tribunals have shown.9 While enforcement action may be lawful in and of itself, as a measure to prevent overexploitation and exhaustion of marine living resources, it should not amount to acts violating basic human rights, such as the right to life, the right to personal freedom and the right to a fair trial. Non-compliance with fishing rules should be met with a firm response by state authorities, but should not authorize unlawful behaviour by the latter. Apart from the natural dangers of the sea and the human-induced conditions in which the fishing activity itself is carried out, as already mentioned, poor protection of fishers is in a large measure due to the fragmented and insufficient legal regime. Lack of effective instruments for the protection of the human and labour rights of fishermen and poor implementation of those that have been adopted are the main features of the existing legal regime. It is therefore essential to decompose the existing rules and reconstruct the applicable regime in order to evaluate its drawbacks and its gaps. Fishers are essentially persons working at sea. This definition provides sufficient elements for searching for the applicable rules: being persons, they are entitled to human rights; being workers, they are entitled to labour rights; being at sea, they are subject to the law of the sea. Do these legal regimes provide an adequate legal basis for 5

6

7 8

9

Bureau of Labor Statistics, Census of Fatal Occupational Injuries (CFOI), available at (accessed 14 January 2013). See also information provided by National Institute for Occupational Safety and Health (NIOSH), available at ­(accessed 14 January 2013). (accessed 14 January 2013). According to S.E. Roberts & J.C. Williams, Update of Mortality for Workers in the UK Merchant Shipping and Fishing Sectors, 2007, available at (accessed 14 January 2013) “The fatal accident rate in the UK fishing industry during 1996 to 2005, 102 per 100,000 fishermen-years, was 115 times higher than that in the general workforce of Great Britain. The fatal accident rate in fishing was also 24 times higher than in the construction industry and 81 times higher than in manufacturing.” M. Gianni & W. Simpson, The Changing Nature of High Seas Fishing, 2005. Recent reports have focused on such instances, see, Conditions of Work; EJF, All at Sea – The Abuse of Human Rights Aboard Illegal Fishing Vessels, 2010, available at (accessed 14 January 2013); ITF, Out of Sight, Out of Mind – Seafarers, Fishers & Human Rights, 2006, available at (accessed 14 January 2013). M/V “Saiga” (No. 2) (Saint Vincent and the Grenadines v. Guinea), ITLOS Judgment of 1 July 1999.

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17  International Law and the Protection of Fishers the protection of fishers? This chapter will address this question. It will examine existing conventions for the protection of fishers’ rights, including safety, labour rights and other rights, highlighting their broader significance as a step forward in the furtherance of social and economic rights. 17.2 International Law and Fishers There are four main domains of international law that are relevant to fishers: the law of the sea, as codified in the United Nations Convention on the Law of the Sea (UNCLOS)10; international labour law, as developed within the International Labour Organization (ILO); international maritime law, as developed within the International Maritime Organization (IMO); fisheries regulations, mostly developed within the Food and Agriculture Organization (FAO) and regional fisheries bodies. As will be discussed hereunder, none of these fields provides adequate protection yet. While specific strengths and weaknesses will be discussed under the following headings, it is important to note that, in legal terms, fishers often constitute a category apart and are not subject to the same regulation with other seafarers. Although fishers work on ships, they are in fact often excluded from the scope of treaties dealing with maritime safety, manning of vessels or maritime labour. In light of the well-articulated regulation of maritime labour and the safety of merchant vessels, developed by the ILO and the IMO, being set apart as a category constitutes a weakness for fishers, who cannot enjoy the protection of existing instruments. 17.2.1 UNCLOS The UNCLOS does not contain detailed regulation in this respect. Nevertheless, it provides some guiding principles that need to be taken into account. In the first place, Article 94 UNCLOS not only provides for the duty of the flag state to effectively exercise its jurisdiction and control over ships flying its flag, but also obliges that state to “assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.”11 Unlike more detailed provisions in IMO and ILO instruments, this article applies to all vessels regardless of the activities carried out by them. In particular, the state shall take measures necessary to ensure safety at sea concerning, among others, “the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments.”12 Social matters and labour conditions, in particular, are therefore among those matters in 10 Adopted in Montego Bay, 12 December 1982, in force since 16 November 1994 (164 parties as of 14 January 2013). 11 Art. 94(2)(b) UNCLOS. 12 Art. 94(3)(b) UNCLOS.

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Irini Papanicolopulu which the flag state not only may, but must exercise its jurisdiction, including legislative and enforcement jurisdiction. It is worth recalling that, under international law rules, the legislative and adjudicatory jurisdiction of the flag state applies to a ship regardless of the maritime area in which it navigates. It is only enforcement powers that meet limitations in the territorial sea and internal waters of other states. The coastal state may also have a role to play in protecting fishers. In the first place, a case can be made that the UNCLOS allows (although it does not mandate) regulation of working conditions on board vessels licensed to fish in its territorial sea and exclusive economic zone (EEZ). The sovereignty enjoyed by the coastal state in its territorial sea allows for the exercise of regulatory powers, and since fishing precludes the application of the rules in Part II, Section III UNCLOS,13 the state is not limited by the content of A ­ rticles 27 and 28 UNCLOS. As far as the EEZ is concerned, it can be argued that the coastal state may pose as a condition for the granting of licences compliance with its legislation on social matters. Although this is not expressly provided for, the UNCLOS requires that “[n]ationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State.”14 While this provision is focused mostly on conservation measures and the matters listed in Article 62(4) relate to the resources and not to the people exploiting them, the use of ‘inter alia’ in the chapeau of the list, the sovereign rights enjoyed by the state,15 and the fact that there is nothing to the contrary either in Part V UNCLOS or in other parts of the Convention seem to allow for a reading of the rights of the coastal state in this sense. Finally, Article 73 is the only UNCLOS rule that seems to have fishers as its direct beneficiaries. This provision attributes and at the same time qualifies the broad enforcement powers enjoyed by the coastal state in its EEZ.16 There are three limitations in this rule that may translate into rights for fishers; however, their territorial scope is limited, since the provision applies only in the EEZ. First, fishers have to be promptly released upon posting of an adequate security; this amounts almost to a right for fishers, in light of the binding procedure established under Article 292, to be released. However, the rights of fishers may suffer a significant limitation since release is subject to the payment of adequate security, 13 14 15 16

Art. 19(2)(i) UNCLOS. Art. 62(4) UNCLOS. Art. 56(1)(a) UNCLOS. “1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. 2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security. 3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment. 4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.”

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17  International Law and the Protection of Fishers which is often well beyond the financial capacity of any member of the crew. If the owner or operator of the vessel or the flag state does not pay this sum, fishers will be unable to make the payment themselves and will accordingly remain under custody. Second, penalties cannot include imprisonment, unless established under a bilateral agreement, and can never consist of corporal punishment. Third, the flag state needs to be notified of any action and any penalties imposed on fishers. This will allow the flag state to intervene in favour of the crew of its vessel with a right akin to diplomatic protection.17 There is, however, no correspondent right of the crew member to be protected by the flag state, and therefore the exercise of this power would seem to be discretionary upon the flag state. In conclusion, the UNCLOS provides some general principles that may be of benefit to fishers. The obligation of the flag state to exercise its jurisdiction in respect of social matters is paramount. Unfortunately, this is the only provision that amounts to an obligation to positively act, since there is no corresponding obligation on the coastal state licensing vessels fishing in its waters. 17.2.2

ILO Instruments

Fishers being workers, the ILO has engaged in a number of efforts to ensure decent working conditions for them since its inception. In addition to a number of the general conventions that also apply to fishers, dedicated instruments date back to the 1920 Hours of Work (Fishing) Recommendation and include the 1959 Medical Examination (Fishermen) Convention,18 the 1959 Fishermen’s Articles of Agreement Convention,19 the 1966 Fishermen’s Competency Certificates Convention20 and the 1966 Accommodation of Crews (Fishermen) Convention.21 While some of the conventions relevant to this sector are dated, renewed effort for the elaboration of a modern treaty concerning work in the fishing sector resulted in the adoption, in 2007, of the Work in Fishing Convention (No. 188) (C188). This treaty applies to all fishers whereby every person employed or engaged in any capacity or carrying out an occupation on board any fishing vessel.22 There is, however, the possibility for parties to exclude the application of some provisions in specific cases.23 Exclusions cannot operate for vessels that are 24 m in length or over, or remain at sea for more than seven days, or normally See Art. 18, Draft Articles on Diplomatic Protection, and the ILC commentary to it. Done in Geneva on 19 June 1959, in force since 7 November 1961 (30 parties as of 14 January 2013). Done in Geneva on 19 June 1959, in force since 7 November 1961 (23 parties as of 14 January 2013). Done in Geneva on 21 June 1966, in force since 15 July 1969 (10 parties as of 14 January 2013). Done in Geneva on 21 Jun 1966, in force since 6 November 1968 (23 parties as of 14 January 2013). Art. 1(e) C188, which excludes from its scope “pilots, naval personnel, other persons in the permanent service of a government, shore-based persons carrying out work aboard a fishing vessel and fisheries observers.” According to Art. 1(g) C188, “fishing vessel or vessel means any ship or boat, of any nature whatsoever, irrespective of the form of ownership, used or intended to be used for the purpose of commercial fishing.” 23 Art. 3(1) C188 and Art. 4(1) C188. 17 18 19 20 21 22

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Irini Papanicolopulu navigate at a distance exceeding 200 nautical miles from the coast.24 These provisions actually permit exclusion of a significant number of fishing vessels, since more than 85% of the motorized fishing vessels in the world are less than 12 m in length, while only 2% of all motorized fishing vessels corresponded to industrialized fishing vessels of 24 m or larger.25 Under the C188, a state is required to implement and enforce laws, regulations and other measures to fulfil their commitments “with respect to fishers and fishing vessels under its jurisdiction.” This broad wording allows the Convention to apply not only with respect to the flag state, but also with respect to the coastal state when the latter exercises jurisdiction over vessels. Responsibility is placed on the vessel owner to ensure that the skipper, who has the responsibility for the safety of the fishers on board and the safe operation of the vessel, is provided with the necessary resources and facilities to comply with the obligations of this Convention.26 Enforcement rests with the flag state,27 the port state28 and the state where recruitment and placement take place, with respect to these activities.29 Substantial standards indicated by the C188 concern minimum age, medical examination and certification, conditions of service, the obligation to maintain a crew list, fisher’s work agreements, repatriation, recruitment and placement, payment, accommodation and food, medical care, health protection and social security. The adoption of the C188 was accompanied by the adoption of a Recommendation having the same object. Like all ILO recommendations, this is not a binding instrument. It is, however, indicative of those areas that are considered as most necessitating regulation: protection of young persons, medical examination, training, conditions of service, payment, accommodation, medical care, health protection and social security. The C188 might undoubtedly be a significant step forward in the protection of fishers’ rights, as it provides the principles that should guide states in the implementation of their duties towards fishers. However, it is not likely that it will enter into force quickly, since by the beginning of 2013 only two states, out of the ten required, had ratified it. In the meantime, fishers will not be able to benefit from the Maritime Labour Convention (MLC), due to enter into force in 2013, which expressly excludes fishing vessels from its scope.30 To contrast this rather disappointing datum, it is well to remember that ILO instruments may influence the development of national legislation even when they are not yet in force. This has happened, for example, in the European Union, with the Agreement between the Social Partners in the Sea-Fisheries Sector concerning the implementation 24 25 26 27 28 29 30

Art. 4(2) C188. FAO 2012, p. 11. Art. 8 C188. Art. 40 C188 and Art. 43(1) C188. Art. 43(2) C188. Art. 22(3) C188. Art. II(4) MLC.

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17  International Law and the Protection of Fishers of the C188, which calls upon states to ratify the C188 and endorses its content.31 The Agreement has paved the way for the elaboration of a directive to effectively implement the content of the C188. 17.2.3

IMO Instruments

The activity of the IMO is complementary to that of the ILO, since the former is actively engaged in the field of maritime safety and security. Fishing vessels are generally beyond the scope of IMO maritime conventions either because of their activity or because of their dimensions, which do not reach the minimum required for the application of these treaties. As a consequence, it has been necessary to adopt dedicated treaties. Safety of fishing vessels has always been a major issue of concern, since it greatly impacts on the working and living conditions on board, as well as on the hazardous nature of fishing. Since most of the Convention on Safety of Life at Sea (SOLAS)32 provisions do not apply to fishing vessels,33 in the 1970s, the IMO adopted a dedicated Convention for the Safety of Fishing Vessels (SFV). Following almost two decades of unsuccessful attempts to bring this Convention into force, in 1993 a Protocol was elaborated with the acknowledged purpose of facilitating ratification.34 While this allowed a certain number of states to ratify it, it became evident that the requirements for entry into force needed to be further lowered, and a new Protocol was adopted in 2012, which is expected to bring the instrument into force, eventually.35 The SFV, in its present form, will apply to new fishing vessels – that is, vessels commercially used for catching fish, whales, seals, walrus or other living resources of the sea36 – 24 m in length or over. It applies to fishing vessels also processing their catch,37 but excludes from its scope vessels used exclusively for processing fish, for sport or recreation, for research and training or as fish carriers.38 National administrations 31 Agreement between the Social Partners in the European Union’s Sea-Fisheries Sector of 21 May 2012 Concerning the Implementation of the Work in Fishing Convention, 2007 of the International Labour Organization. 32 International Convention for the Safety of Life at Sea, adopted on November 1974, in force 25 May 1980, as amended repeatedly (SOLAS). As of 14 January 2012, there are 162 parties, the combined merchant fleets of which constitute approximately 99.20% of the gross tonnage of the world’s merchant fleet. 33 Reg. I/3(a)(vi) SOLAS. Fishing vessels are however bound by the provisions on safety of navigation in Chapter V, see Reg. V/1 SOLAS. 34 Torremolinos Protocol of 1993 Relating to the Torremolinos International Convention for the Safety of Fishing Vessels, done in Torremolinos on 2 April 1993 (not yet in force). 35 Cape Town Agreement of 2012 on the Implementation of the Provisions of the Torremolinos Protocol of 1993 Relating to the Torremolinos International Convention for the Safety of Fishing Vessels, done in Cape Town on 11 October 2012 (not yet in force). 36 Art. 2(b) SFV. 37 Art. 3(1) SFV. 38 Art. 3(2) SFV.

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Irini Papanicolopulu may exempt further categories of vessels from the application of the SFV, provided these conform to requirements adequate to ensure their safety.39 As far as certification, flag state responsibilities, port state control and amendments are concerned, the SFV follows the usual content of other IMO treaties. As for the substantive standards, the SFV contains detailed regulations on construction and equipment, including provisions on fire protection, life-saving appliances and arrangements of emergency procedures, satellite communication systems and other components of the global maritime distress and safety system. SFV contains indications as to noise levels,40 avoidance of slipping,41 protection against accidental closing of hinged covers, manholes and other openings,42 bulwarks, rails and guards for protection against accidentally falling.43 As already mentioned, the SFV has not yet entered into force. While the 2012 modifications are expected to bring this treaty into force, it will certainly be some time before it acquires the widespread ratification of the SOLAS, which regulates the same matters with respect to commercial vessels. The International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel (STCW-F)44 is also instrumental to the safety of fishers. It provides for mandatory minimum requirements for certification and sets out requirements to ensure continued proficiency of skippers and officers, of chief engineers and second-engineer officers and of radio operators. While there are no requirements for the certification of other persons working on board a fishing vessel, the STCW-F requires that all fishing vessels personnel receive basic safety training before being assigned to any shipboard duties.45 It furthermore sets out basic principles to be observed in watchkeeping. The STCW-F applies to “personnel serving on board seagoing fishing vessels [meaning ‘any vessel used commercially for catching fish or other living resources of the sea’]46 entitled to fly the flag of a Party.”47 However, the Administration of a party, “without derogation from the principles of safety in the Convention,” may limit the certification requirements in the case of “fishing vessels of less than 45 metres in length operating exclusively from its ports and fishing within its limited waters.”48 Finally, the STCW-F provides for enforcement of its provisions by the flag state,49 by the state that has certified the fishing 39 40 41 42 43 44 45 46 47 48 49

Reg. I/3. Reg. IV/12. Reg. VI/1(4). Reg. VI/2. Reg. VI/3. Adopted in London on 7 July 1995, entered into force on 29 September 2012 (16 parties, the combined merchant fleets of which constitute approximately 4.37% of the gross tonnage of the world’s merchant fleet, as of 14 January 2013). Reg. III/1 STCW-F. Art. 2(7) STCW-F Art. 3 STCW-F. Reg. I/2 STCW-F. Art. 7(2) STCW-F.

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17  International Law and the Protection of Fishers personnel50 and by the port state.51 In light of these provisions and notwithstanding its limited subject matter and the fact that the STCW-F does not attribute rights to fishers (but rather poses duties on them concerning training and certification), it can be considered that this treaty constitutes a step forward in ensuring the safety of working and living conditions on board a fishing vessel. 17.2.4

FAO Instruments

The FAO is probably the international organization that has adopted the greatest number of international instruments relating to fishing. Most of them, however, deal with the protection of fishers incidentally, if at all, since their focus is on the sustainable exploitation of the living resources of the sea and the compliance with conservation measures. Thus, for example, the 1995 Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (FSA)52 briefly mentions that the “inspecting State and the flag State and, as appropriate, the port State shall take all necessary steps to ensure the well-being of the crew regardless of their nationality” when a fishing vessel that has been apprehended is brought into port53 and contains some essential safeguards concerning use of force during enforcement activities.54 Similarly, the Code of Conduct for Responsible Fisheries55 contains only one provision concerned with the protection of fishers, requesting states to ensure that “fishing is conducted with due regard to the safety of human life” and the IMO regulations on marine traffic.56

50 Ibid. 51 Art. 8 STCW-F. 52 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted in New York on 4 December 1995, in force since 11 December 2001 (80 parties as of 14 January 2013). 53 Art. 21(8) FSA. 54 Art. 22(1)(f) FSA. Excessive use of force against fishing vessels and fishers on board is an issue that has come to the forefront in numerous cases. The ITLOS addressed this issue in its Saiga 2 Case. 55 The Code of Conduct (CoC) is a voluntary instrument that “provides principles and standards applicable to the conservation, management and development of all fisheries [and] covers the capture, processing and trade of fish and fishery products, fishing operations, aquaculture, fisheries research and the integration of fisheries into coastal area management” (para. 1.3 CoC) and is addressed to “members and nonmembers of FAO, fishing entities, subregional, regional and global organizations, whether governmental or non-governmental, and all persons concerned with the conservation of fishery resources and management and development of fisheries” (para. 1.2 CoC). Although non-binding in itself, the CoC incorporates requirements under binding treaties, such as the UNCLOS and FSA, and has had an impact in the development of national legislations and policies; see G. Hosch, G. Ferraro & P. Failler, ‘The 1995 FAO Code of Conduct for Responsible Fisheries: Adopting, Implementing or Scoring Results?’, Marine Policy, Vol. 35, No. 2, 2011, p. 189. 56 Para. 8.4.1 CoC.

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Irini Papanicolopulu Similarly, the 2009 Port State Control Agreement (PSCA)57 provides that a vessel shall not be denied the use of port services (one of the measures that the state can adopt against ships engaged in Illegal, Unreported and Unregulated [IUU] fishing) if their use is “essential to the safety or health of the crew or the safety of the vessel, provided these needs are duly proven.”58 The PSCA does not concern, at least apparently, the control of living and working conditions on board the vessel, since it focuses only on the conservation of marine living resources and the elimination of IUU fishing. While it is to be regretted that this occasion was not properly exploited to transform into a duty the right to undertake controls concerning also humans, this omission should not be overrated. On the one hand, the PSCA does not exclude other forms of control that the port state can undertake. On the other hand, the detailed controls mandated for inspectors under Annex B PSCA cannot but expose at least some of the practices that amount to a violation of the basic rights of fishers. 17.3 An Assessment In concluding this overview of applicable treaties and other instruments, of both hard and soft law, some considerations seem apt. In the first place, it is evident that the topic of fishers’ protection is regulated sparingly and in a fragmented manner. There is no general treaty devoted to this topic, and the relevant rules are to be found in a number of instruments, the scope and content of which only partly overlaps. The appalling conditions faced by fishers require adequate regulatory action that will protect their rights and will punish practices that amount to exploitation, abuse and human rights violation. Existing international law, however, does not provide much in this respect, since neither instruments dealing with individual rights nor those dealing with the sea and fishing provide adequate regulation. True, as individuals fishers enjoy the rights provided by general human rights treaties and as workers they enjoy the rights provided for in general labour treaties. However, both categories of legal instruments contain mainly general provisions that are not sufficient, in and of themselves, to actually grant enjoyment of rights. To cite but one simple example, while the right to life is contained in all human rights treaties, death rates in the fishing sector indicate that its enjoyment requires positive action by states and the enactment of specific safety measures. Second, few of the existing rules are legally binding, since almost all treaties dedicated to fishers are not in force. Even when they are in force, they often bind only a limited number of states, since most have not ratified them. Low ratification rates and not entry into force, furthermore, impact negatively on the possibility to consider the standards 57 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, done in Rome on 22 November 2009, not yet in force. 58 Art. 11(2)(a) PSCA. See also Art. 18(2) PSCA.

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17  International Law and the Protection of Fishers contained in the existing instruments as “generally accepted international standards” under the UNCLOS.59 This picture is evidence of a general lack of political will on the part of states to take meaningful action. While attention devoted to the regulation of fishing has increased significantly over the last few decades, similar considerations can be advanced with respect to law of the sea and fisheries instruments. Notwithstanding recent calls for a holistic approach to the regulation of maritime activities60 and studies on the linkage between illegal practices, such as IUU fishing, and systematic abuses of human rights,61 existing regulation is still very much focused on conservation of resources and does not deal extensively with the working conditions on board vessels. On a positive note, it is noteworthy that the three international organizations competent for fishers and fishing – FAO, ILO and IMO – have started joint efforts to produce commonly adopted rules and standards. For example, the SFV is now complemented by soft law instruments adopted through a joint effort of the IMO, ILO and FAO that address safety issues for small fishing vessels.62 The resulting instruments are important in promoting the concept of the rule of law in the fisheries sector and for preparing the ground for the implementation of binding instruments. In the light of this picture, much work is still needed to allow for the protection of fishers against the natural dangers of the sea and the man-made threats and abuses to which they may be subject. The necessity to have a uniform regime mirroring that applicable to other vessels is evident. While it is true that fishing vessels may be very different and that artisanal subsistence fishing is quantitatively and qualitatively different from large-scale commercial fishing, these differences cannot justify a different treatment. This regime not only needs to address substantial standards applicable to fishing vessels, but must also identify the state or states that are competent to enforce them. In this respect, the field of fishing is still lagging behind other fields in the law of the sea. In most cases, the rights of states to protect individuals and to ensure their safety and security, as well as decent living and working conditions, have not been transformed into duties yet. It is therefore necessary to render mandatory the adoption of rules on the protection of fishers and their enforcement, in line with the general obligations of states to protect human rights and labour rights. In particular, the extension of mandatory port state control (PSC) to check also the living and working conditions on board fishing vessels is a useful instrument. 59 E.g. Art. 94 UNCLOS. 60 C. De Young, A. Charles & A. Hjort, Human Dimensions of the Ecosystem Approach to Fisheries: An Overview of Context, Concepts, Tools and Methods, 2008; See also T. Greiber et al., Conservation With Justice. A Rights-Based Approach, 2009. 61 Gianni & Simpson 2005. 62 Safety Recommendations for Decked Fishing Vessels of Less Than 12 Metres in Length and Undecked Fishing Vessels, IMO doc. MSC 87/26/Add.2. Other relevant documents include the Guidelines to Assist Competent Authorities in the Implementation of Part B of the Code of Safety for Fishermen and Fishing Vessels (IMO doc. MSC 89/25/Add.1, Ann. 16) and the Voluntary Guidelines for the Design, Construction and Equipment of Small Fishing Vessels.

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Irini Papanicolopulu This result would be achieved with the entry into force of the C188,63 but it can also be reached through decisions by port states, in particular within the schemes of regional PSC agreements. Similarly useful would be to extend the mandate of inspectors on board vessels, rendering it mandatory to report behaviour in violation of human rights and labour standards.

63 See the Guidelines for Port State Control Officers Carrying Out Inspections Under the Work in Fishing Convention, 2007 (No. 188), adopted by the Governing Body of the ILO in its 309th Session (13-19 November 2010).

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18

Developments in Maritime Labour between International Law and EU Law

Pietro Pustorino* 18.1 Developments in International Law on Maritime Labour: The 2006 ILO Convention An analysis of the evolution in law and practice in connection with maritime labour requires a joint and coordinated examination of developments in both international law and in European Union (EU) law. This is because the two separate legal orders intersect at various points as regards the regulation of maritime labour. Commencing from developments in international law, it is necessary to start with the International Labour Organization (ILO) Maritime Labour Convention1 approved on 23 February 2006. The Convention will come into force, on the basis of the provisions of paragraph 3 of Article VIII, on 20 August 2013, a year after the registration of the thirtieth ratification. In fact, the coming into force of the Convention was subject to a two-part condition: registered ratifications by at least thirty states that realize a total share of 33% in the world gross tonnage of ships. The first part of the condition was fulfilled on 20 August 2012,2 while the second part of the condition had been fulfilled earlier, and at the time of writing, ratifications account for 68.8% of world gross tonnage. The Convention is of particular importance, and it is no coincidence that it has been defined as the fourth pillar of the regulation of the maritime industry.3 In particular, it lays down an obligation for the parties to prohibit violations of the Convention and to establish sanctions or ‘corrective measures’ in order to discourage such * 1

2 3

Associate Professor of International Organization and Law of the EU, University of Siena. For a comment, see P. Chaumette, A. Charbonneau & G. Proutière-Maulion, ‘Les conventions OIT sur le travail maritime du 2006 et 188 sur le travail à la pêche’, in Scritti in onore di Francesco Berlingieri, Numero speciale di Il Diritto Marittimo, Edizioni del Diritto Maiittimo, Genoa, 2010, pp. 337 et seq.; M.L. McConnell, D. Devlin & C. Doumbia-Henry, The Maritime Labour Convention, 2006, A Legal Primer to an Emerging International Regime, Martinus Nijhoff, Leiden, 2011. As on 21 March 2013, 35 states have ratified the Convention. For two states, Fiji and Gabon, the instrument of ratification is received, but the formal registration is pending. The other three pillars are respectively the IMO Convention on the Safety of Life at Sea (SOLAS Convention), the STCW Convention and the IMO Convention on the Prevention of Pollution from Ships (MARPOL Convention).

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Pietro Pustorino

violations.4 In this regard, although there is no express reference to criminal law obligations, they can be deduced implicitly further to a teleological interpretation of the provisions in question. According to Article VI, some parts of the Convention are mandatory for the parties,5 while others are not.6 With regard to the mandatory parts of the Convention, it should be noted that they confirm the content of numerous provisions that are already binding under other ILO conventions (even though those provisions are not always respected by the parties, at times spuriously relying on the fact that they are not self-executing), envisaging at times their modification on the basis of changing needs in traffic and maritime labour.7 Furthermore, the Convention contains some rather innovative provisions concerning the individual and collective rights of seafarers and the identification of the state responsible for ensuring compliance with Convention provisions as well as some more technical provisions concerning compliance such as the maritime labour certificate prescribed by the Convention. Regarding the application of the Convention, its provisions apply to all ships, whether publicly or privately owned (other than ships engaged in fishing or in similar pursuits and ships of traditional build such as dhows and junks), which are engaged in commercial activities.8 Ratione personae, the Convention applies to all seafarers.9 In both of its spheres of application, i.e. ships and seafarers, any doubts as to the application of the Convention are to be resolved by the competent authority in each Member after consultation with the shipowners’ and seafarers’ organizations concerned with this question.10 Also of importance are the rules on denunciation,11 which seem to be more similar to those governing withdrawal from an international organization rather than those on the denunciation of a ‘normal’ multilateral agreement. In fact, the Convention may be denounced only after the expiration of ten years from the date on which it first comes into force. A Member who does not exercise that right is then bound for another period of ten years and hence for a total of twenty years. These particularly strict rules seemed to reflect a need to guarantee for an ample length of time a uniform regime for the parties, based not only on the importance of but also on a general appreciation of the values and principles enshrined in the Convention. 4 5 6

Art. V, para. 6, of the Convention. Arts. I-XVI of the Convention, the regulations and provisions of Part A of the Code of the Convention. The provisions of Part B of the Code. It should be noted that the Code contains the details for the implementation of the Convention. 7 See the list of revised conventions in Art. X of the Convention. 8 Art. II, para. 4, of the Convention. 9 Art. II, para. 2, of the Convention. 10 See respectively Art. II, para. 3, for seafarers, and Art. II, para. 5, for ships. 11 Art. IX of the Convention.

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18  Developments in Maritime Labour between International Law and EU Law 18.2 Examination of the ILO Convention in Light of Some Rules and Principles of Public and Private International Law The provisions of the ILO Convention must be assessed in light of certain principles and rules of international law. With regard to examining the Convention in light of certain general principles of public international law, one must first and foremost note the importance of the treaty interpretation rules set forth in the Vienna Convention on the Law of Treaties of 23 May 1969, which are considered to correspond to general international law.12 From that standpoint it should be stressed that the provisions indicated in the ILO Convention as not mandatory, i.e. those in Part B of the Code mentioned above, are subject to a specific provision that suffers from some interpretative doubt, whereby each Member “shall give due consideration to implementing its responsibilities in the manner provided for in Part B of the Code.”13 Moreover, it should be noted that the non-mandatory provisions occupy a very peculiar place because they are not contained in an ad hoc normative instrument – such as an annex or protocol – but are inserted following each and every binding provision. This technique raises a number of interpretative issues. One wonders whether the non-mandatory provisions are to be considered as a primary or supplementary means of interpretation of the Convention under Articles 31 and 32 of the Vienna Convention or whether they are to be afforded a different legal weight not classifiable under the Vienna Convention. It is arguable that the non-mandatory provisions – precisely because of the obligation, general as it may be, to take them into consideration and their setting within the text of the Convention – play an important role when it comes to interpreting the mandatory provisions. This leads one to suppose that they can be classed as a primary means of interpretation of the mandatory provisions of the ILO Convention, confirming the assumption that the rules of interpretation set forth in the Vienna Convention are not exhaustive and may be added to in light of developments in rule-making and interpretative techniques that can be derived from practice. A further issue that arises when analysing the ILO Convention in light of general public international law is the relationship between the Convention and international human rights law, with special reference to the rights of workers. From this standpoint, one must draw a distinction in the context of the Convention between seafarers’ fundamental rights under Article III, which have now assumed a key role within the framework of the ILO (freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the abolition of child labour

12 Arts. 31-33 of the 1969 Vienna Convention. 13 Art. VI, para. 2, of the Convention.

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Pietro Pustorino and the elimination of discrimination in respect of employment and occupation),14 and further rights under Article IV (the right to a safe and secure workplace that complies with safety standards, the right to fair terms of employment, the right to decent working and living conditions on board ship and the right to health protection, medical care, welfare measures and other forms of social protection). This set of rules on the protection of workers’ rights merits particular attention. Some doubts arise regarding Article V, paragraph 7, of the Convention, to the effect that [e]ach Member shall implement its responsibilities under this Convention in such a way as to ensure that the ships that fly the flag of any State that has not ratified this Convention do not receive more favourable treatment than the ships that fly the flag of any State that has ratified it. This provision is rooted in the legitimate concern to avoid any discrimination in terms of seafarers’ rights. However, apart from the difficulties that some parties could encounter if obliged under international agreements to treat workers better than what is required under the 2006 Convention,15 the provision in question would also seem to be contrary to the principle that one applies the most favourable rule governing workers’ human rights, a principle that is enshrined in the ILO's own Constitution further to which the adoption of any recommendation by the ILO will not affect any law, award, custom or agreement that ensures more favourable conditions to the workers concerned than those provided for in the recommendation.16 Therefore, Article V, paragraph 7, would seem to conflict with ILO constitutional provisions, and hence its validity could be called into question on the basis that it contrasts with a higher ranking rule. Again on the issue of seafarers’ rights under the Convention, rather contradictory would also appear to be Article VI, paragraph 3 – which is an expression of the need for flexibility in maritime labour law – to the effect that a Member who is not in a position to implement the rights and principles in the manner set out in Part A of the Code, i.e. the mandatory provisions, may implement Part A through ‘substantially equivalent’ national rules, which have to fully achieve the general objective and purpose of that same Part A. Relying on that option, a Member essentially only has a duty to achieve a particular result. 14 Those same rights are referred to in the well-known ILO Declaration on Fundamental Principles and Rights at Work (Art. 2) and are deemed to be binding on Member States merely on the basis of their membership of the ILO irrespective of whether they actually ratify the specific ILO conventions that provide for reinforced protection. 15 In this case, Art. V, para. 7, could be interpreted in the sense of an obligation of denunciation for the states parties to the agreements concluded prior thereto with third states and regarding more favourable treatment in relation to maritime labour. 16 See Art. 19, para. 8, of the ILO Constitution. It is no coincidence that the EU's Directive 2009/13/EC, discussed later, allows for the application of EU rules that may be more favourable to seafarers: see recital 3 and Art. 3 of the Directive.

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18  Developments in Maritime Labour between International Law and EU Law This legal regime raises some misgivings. First, opting for substantially equivalent national rules – a choice that the Member must give specific reasons for – significantly reduces the mandatory force of the provisions set forth in Part A of the Code, which would not bind the states that decided to exercise the option apart from a general duty to achieve a certain result. Moreover, if some states were to effectively exercise the option for substantially equivalent protection, this would risk creating inconsistency in the implementation of the Convention in the various national legal systems, with all of the rules in Part A of the Code binding for some, while others would be bound by a mere duty to achieve a result. This would lead to disparity in treatment for seafarers in states that, lawfully exercising the above-mentioned option, did not manage to guarantee a protection effectively equivalent to that envisaged by the Convention. Then there is a further misgiving, stemming from actual practice, although in a rather different normative context. The principle of equivalent protection is used in the case law of the European Court of Human Rights (ECtHR) in matters regarding both the conflict between international rules on the immunity of international organizations and the right of access to justice and in matters involving breaches of the European Convention on Human Rights (ECHR) originating from EU law.17 In both instances, it is common knowledge that rarely has the application of the principle of equivalent protection guaranteed effective protection for the human rights safeguarded at the Convention level. A further issue relating to the content of the ILO Convention, analysed from the standpoint of its conformity with the rules of general international law, is the tendency that one can note for the Convention to downplay the importance of the role of the flag state of the ship in governing maritime labour relationships. This trend, which is evident in other areas of the law of the sea,18 is balanced by the parallel granting of greater powers to states different from the flag state. Indeed, regarding maritime labour, the Convention provides for a precise distribution of powers and duties among flag states, port states and other states.19 The principle adopted is the ‘gradation’ of those powers and duties in the matter of ensuring compliance with the Convention. Primary responsibility still lies with the flag state in that each Member must effectively exercise its ‘jurisdiction and control’ over ships that fly its flag by establishing a system for ensuring compliance with the requirements of the Convention, including regular inspections, reporting, monitoring and legal 17 For a recent application of the principle of equivalent protection by the ECtHR in relation to the compatibility with the ECHR of the obligation for lawyers to report suspicious transactions by their clients (an obligation laid down by Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing), see Michaud v. France, ECHR (2012), Application 12323/11, in particular, paras. 101 et seq. The judgment can be viewed online at . 18 On the development of that trend in other areas of the law of the sea, see A. Del Vecchio, ‘Verso un superamento nel diritto del mare dei principi di sovranità territoriale e di inefficacia dei trattati verso i terzi’, Comunicazione e studi, Vol. 22, 2002, pp. 205 et seq. 19 In this regard see Art. V.

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Pietro Pustorino proceedings and must ensure that ships that fly its flag carry a maritime labour certificate and a declaration of maritime labour compliance.20 A different and lesser task is required from the port state, which may in accordance with international law inspect another state's vessels when the ship is in one of its ports, to determine whether the ship (and then the flag state) is in compliance with the requirements of the Convention.21 Finally, each Member must effectively exercise its jurisdiction and control over seafarer recruitment and placement services, if these are established in its territory.22 With regard to the general issue of granting a lesser role to the flag state of the ship, it should be said that this trend may have implications in other areas of public international law, for example, giving rise to a reduction of the scope of application of the customary rule on foreign ships’ immunity from the jurisdiction of the port state or impacting on the customary rule on diplomatic protection for a ship and its crew. In this latter context, the impact could involve a more rigorous examination of the ‘genuine link’ between the flag state and the ship regarding not only the moment from when nationality is recognized, but also subsequently with reference to compliance with the principle of nationality once the ship has already been registered. Confirmation of this trend, not entirely consolidated as of yet, for stricter checks on the genuine link between ship and flag state in connection with claims for diplomatic protection can be found in International Tribunal for the Law of the Sea (ITLOS) judgment of 20 April 2001 in the Grand Prince case in relation to a dispute that arose between Belize and France over the seizure by French warships of a boat in the exclusive economic zone of the Kerguelen Islands forming part of the Territory of the French Southern and Antarctic Lands. The judgment ruled out the existence of a genuine link between the ship and the state whose flag it was flying (Belize) in light of the inconsistency of both the documentation exhibited and an ‘element of fiction’ in the behaviour of Belize in claiming nationality over the ship.23 The diminished importance of the principle of nationality of the ship is also evident in maritime labour rules under private international law. In this regard, it is worth bearing in mind at the outset that the most important issues concern the exercise of domestic jurisdiction and which law applies to maritime labour relations.24 The traditional clause, still to be found in the Italian Code of Navigation,25 providing that the law applicable to maritime labour relationships is the law of the flag state of the ship has fallen into disuse, or in any event, its role has been significantly marginalized. This is confirmed, for example, by Article 8 of Regulation (EC) 593/2008 of the European Parliament and of the Council of 20 21 22 23 24

Art. V, paras. 2 and 3. Art. V, para. 4. Art. V, para. 5. See para. 85 of the judgment, which can be viewed online at . On the numerous important issues see, amongst others, A. Zanobetti Pagnetti, Il rapporto internazionale di lavoro marittimo, Bononia University Press, Bologna, 2008, pp. 91 et seq.; M. Carbone & L. Schiano di Pepe, Conflitti di sovranità e di leggi nei traffici marittimi tra diritto internazionale e diritto dell’Unione europea, Giappichelli, Turin, 2010. 25 Art. 9.

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18  Developments in Maritime Labour between International Law and EU Law 17 June 2008 on the law applicable to contractual obligations (Rome I), which does not mention the connecting factor based on the nationality of the ship for the purposes of determining which law applies to employment contracts. In this regard, it should be noted that both domestic legislation and case law in a number of countries apply principles other than the nationality of the ship to determine the law that governs maritime labour contracts. In particular, reference is made to the operating base of the ship, the actual headquarters of the shipowner, the ship's usual port and the nationality of the seafarers. Those criteria would appear to be consistent with the connecting factors set out in paragraphs 3 and 4 of Article 8 of the above-mentioned Regulation (EC) 593/2008, to which one must obviously add the factor of the law chosen by the parties themselves. It should be noted that the above elements are relevant both for the purposes of determining the law that applies to maritime labour contracts and in order to establish the country's jurisdiction. One must also bear in mind that the application of laws other than those of the flag state of the ship may be achieved directly on the basis of the above-mentioned connecting factors or indirectly through classifying certain national provisions as rules of necessary application or by virtue of applying public order clauses, which generally implies the application of the lex fori. Moreover, it must also be pointed out that in private international law, the superseding of the law of the flag state of the ship is due to a series of reasons, in particular its inadequacy to regulate the current maritime traffic situation and changes in competition between the most important national merchant fleets in the context of marine commercial traffic. A further yet less important reason has to do with the protection of human rights.From this last standpoint, the situation would appear to have come about due to a need to avoid discriminating against seafarers working on ships flying the flag of states who do not adequately protect them and seafarers on board ships flying the flag of states who have a better record in respecting human rights. Then, in this special branch of international law, there is also the additional factor of a desire to apply a regime that is generally uniform when it comes to regulating maritime labour relationships on the same ship, so as to guarantee in any case respect for the fundamental rights of workers.26 18.3 Developments within the Framework of the EU It was mentioned above that analysis of the evolution in maritime labour law requires an examination not only of developments in international law but also those in EU law,27 which, as explained below, covers a lot of the same ground as international law. 26 In Italian case law, see Supreme Court, Sezioni Unite, No. 10293 of 18 October 1993, in Diritto marittimo, 1994, p. 785. 27 For a closer examination of the EU law on maritime labour, see F. Munari & L. Schiano di Pepe, ‘Standard di tutela dei lavoratori marittimi: profili sostanziali e internazionali privatistici nel diritto dell’Unione europea’, Rivista di diritto internazionale privato e processuale, Vol. 68, 2012, pp. 37 et seq.

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Pietro Pustorino From a general standpoint, first and foremost, the importance of trade for EU Member States cannot be understated as more than 40% of the world's merchant fleet belongs to European companies. It comes as no surprise then that the EU has progressively adopted detailed legislation governing the various issues associated with maritime labour, including aspects to do with social policy, maritime safety in general and seafarers’ health and safety in particular. Among the pieces of EU legislation dating back in time regarding maritime labour, one can mention Council Directive 95/21/EC of 19 June 1995 concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port state control). The Directive in question is important above all for its specific objectives consisting of increasing compliance with international law, which is expressly and in detail referred to in the directive itself,28 and Community law on maritime safety, protection of the marine environment and living and working conditions on board ships of all flags.29 Consistent with that purpose is the erga omnes effect of the directive, which applies to any ship or its crew that calls at a port of a Member State or at an offshore installation or that is anchored off such a port or such an installation.30 In addition, a further purpose of Directive 95/21/EC is to establish common criteria for control of ships by the port state and to harmonize procedures on inspection and detention, procedures that are tailored depending on the type of ship involved and the existence of clear grounds for a more detailed inspection of a ship.31 Initially some specific parts of Directive 95/21/EC were amended, also with a view to taking into account changes in international rules governing maritime labour, but subsequently the entire Directive was recast as Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port state control, which, however, was not limited to consolidating the existing regulatory framework, but introduced some changes in relation to the rules on inspections and stoppage, especially for accident-prone ships. More specifically, a ‘risk profile’ is created for every ship that decides to call at a port or anchorage of a Member State, which determines their respective priority for inspection, the intervals between the inspections and the scope of inspections.32 Turning now to examine EU acts dealing specifically with maritime labour, worth mentioning is Council Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the organization of working time of seafarers concluded by the European Community Shipowners’ Association (ECSA) and the Federation of Transport Workers’ Unions in the 28 29 30 31 32

See Art. 2 of the Directive. See Art. 1 of the Directive. See Art. 3(1) of the Directive. See respectively Arts. 1 and 7 as well as Ann. I, III and V to the Directive. See Art. 10 of the Directive.

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18  Developments in Maritime Labour between International Law and EU Law European Union (FST). Regarding seafarers’ hours of work, it provides for a system of inspection of seagoing ships, whether publicly or privately owned, which are registered in the territory of any Member State and are ordinarily engaged in commercial maritime operations.33 That directive was amended by Directive 1999/95/EC of the European Parliament and of the Council of 13 December 1999 concerning the enforcement of provisions in respect of seafarers’ hours of work on board ships calling at Community ports. The purpose of this latter Directive is to provide a mechanism for the verification and enforcement of compliance by ships calling at ports of Member States with Directive 1999/63/EC in order to improve maritime safety, working conditions and the health and safety of seafarers on board ships.34 Among the provisions of Directive 1999/95/EC that are of particular importance inasmuch as it seems to be symptomatic of a close coordination between EU and international rules, is one to the effect that the Directive applies to ships not registered in the territory of, or not flying the flag of, a Member State only on the date of entry into force of ILO Convention No. 180 concerning Seafarers’ Hours of Work and the Manning of Ships, 1996 and the date of entry into force of the Protocol of 8 October 1996 to ILO Convention No. 147 concerning Merchant Shipping (Minimum Standards), 1976. Equally important in Directive 1999/95/EC is the provision to the effect that when inspecting a ship registered in the territory of or flying the flag of a state that has not ratified ILO Convention No. 180 or the Protocol to ILO Convention No. 147, Member States must, once the Convention and the Protocol are in force, ensure that the treatment given to such ships and their crew is no more favourable than that given to a ship flying the flag of a state that is a party to either ILO Convention No. 180 or the Protocol to ILO Convention No. 147 or both of them.35 Evidently, the purpose of the provision is to avoid affording preferential treatment to third-country ships and crews compared with that laid down in international agreements. This operates, even if just indirectly, to achieve a partial harmonization of the legal rules governing seafarers’ hours of work. More recent EU developments have confirmed both the erga omnes nature of EU rules on maritime labour36 and the tendency to create a very close connection between Community and international law. For example, Directive 2008/106/EC of the European Parliament and of the Council of 19 November 2008 on the minimum level of training of seafarers (recast), although stating that its scope of application is the seafarers serving on board seagoing ships flying the flag of a Member State with just a few exceptions,37 33 See clause 1 of the annex containing the European agreement on the organization of working time of seafarers that is the subject matter of the Directive. 34 See Art. 1(1) of the Directive. 35 See Art. 9 of the Directive. 36 As regards that tendency signs of which can be found also in the law of the sea, see Del Vecchio 2002, pp. 218 et seq. 37 See Art. 2 of the Directive.

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Pietro Pustorino does add that any ship as referred to in Article 2 of the Directive, irrespective of the flag it flies, is subject to port state control while in the port of a Member State.38 The directive further provides that Member States must take the measures necessary to ensure that seafarers serving on ships covered by the scope of application of the Directive are trained as a minimum in accordance with the requirements of the IMO Convention on Standard of Training, Certification and Watchkeeping for Seafarers (STCW Convention) and hold the appropriate certificates as to training and qualifications.39 A further demonstration of the close ties between EU law and international law regarding both content and entry into force of the relevant rules can be found in the relationship that exists between EU law and ILO Maritime Labour Convention 2006. At the outset it should be noted that through Council Decision 2007/431/EC of 7 June 2007 the EU authorized the Member States to ratify the ILO Convention in “the parts falling under Community competence”40 as the EU itself, under the ILO Constitution, could not be a party to the Convention.41 That same decision stated that the Member States should take the necessary steps to deposit their instruments of ratification preferably by 2010.42 Subsequently, Council Directive 2009/13/EC of 16 February 2009 was approved, implementing the Agreement concluded by the ECSA and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC, which applies to seafarers on board ships registered in a Member State and/ or flying the flag of a Member State43 and makes entry into force of the Directive subject to entry into force of the Maritime Labour Convention 2006.44 18.4 Conclusions In conclusion, among the most significant elements that can be highlighted following an examination of the law and practice relating to maritime labour is the existence of a close, if not almost osmotic, connection between international law and EU law. In particular, as mentioned above, the acts adopted by the EU constantly refer to international law, at times even providing that they are to enter into force at the same time as the relevant international agreements. This is quite surprising from a general perspective, given that it is well known that the EU constitutes a very special regime compared with international law, which is generally derogated from – save for ius cogens – the particular features and See Art. 22(1) of the Directive. See Art. 3(1) of the Directive. See Art. 1 of the Decision. At the moment the following EU Member States have ratified: Bulgaria, Cyprus, Denmark, Finland, France, Greece, Latvia, Luxembourg, Malta, Netherlands, Poland, Spain and Sweden. 42 See Art. 2 of the Decision. 43 See recital 6 of the Directive. 44 See Art. 7 of the Directive. 38 39 40 41

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18  Developments in Maritime Labour between International Law and EU Law objectives of EU law. From a more specific perspective relating to the substantive content of the rules on maritime labour, the fact that international law and EU law correspond fosters the creation of a generally uniform regime focused on respect for values and principles that are universally accepted by the international community. The point just made is important also because the rules laid down in the international agreements on maritime labour – and expressly referred to in EU law – would not appear to be totally consistent with traditional international law principles, especially with regard, for example, to the wide powers enjoyed up to now by the flag state of the ship and the crew, which have repercussions, as explained above, in both the private and public international law sphere. Indeed, there is evidence of a well-established tendency for international law and EU law to converge towards reducing the importance of the principle of nationality in maritime labour by granting other states – especially the states in whose waters the ship is passing through or the port state – new and significant powers of control to check compliance with international laws on safety at sea, environmental protection and the living and working conditions on board ships. It is likely that this trend in the practice, if coordinated with that which can be witnessed in other areas of international law – for example, the practice concerning diplomatic protection would seem to confirm the waning of the principle of nationality when it comes to safeguarding the human rights and interests of injured citizens – could lead to an overall decrease in the importance of the principle of nationality in view of a better balance being struck, compared with the past, with universally shared values like environmental protection and the safeguarding of the fundamental rights of workers etc. Some general features of international law and EU law would appear to be consistent with this trend in the practice, in particular, the prohibition on affording more favourable treatment to workers from states not bound by the international regime or EU rules and the binding nature of the laws in question for third states. These characteristics are designed to prevent abuse and anti-competitive situations at the individual level, i.e. between the private parties that are engaged in maritime trade, and also to avoid advantages accruing to states not bound by certain international agreements (and not Members of the EU), who could capitalize on that situation to the detriment of not only the economic interests of the states bound by international or EU rules but also values that are by now universally recognized in the field of maritime labour.

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Part V International Law of the Sea and Polar Regions

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19

Global Warming and the Arctic Ocean: Challenges for International Law

Maria Clelia Ciciriello* 19.1 Introduction Polar regions – the Arctic and Antarctic – have considerable geographical and geological similarities, with the same extreme weather conditions, presence of ice and very fragile ecosystem.1 However, there are also substantial morphological and geographical differences because the Arctic is an ocean of ice surrounded by continents, while the Antarctic is an ice-capped continent surrounded by the ocean.2 In particular, the Arctic – i.e. the polar region around the North Pole, consisting of islands, archipelagos, floating ice or ice-covered masses and water – is a region dominated by the Arctic Ocean or Sea, which is an oceanic basin up to 5,000 m deep, with continuous currents beneath the ice cap, enclosed between Eurasia and North America and connected to the Pacific Ocean by the Bering Strait and to the Atlantic through the Greenland Sea and the Labrador Sea. The Arctic is undoubtedly the polar region most affected by global warming.3 Indeed, the gradual shrinking of the ice cap, caused by the recent climate change, has opened up new scenarios and caused new problems, especially with regard to the international maritime legal regime of the region, because the interactions between the atmosphere, ice, oceans and biological systems taking place in this region affect the entire Earth. Faced with the characteristics of the Arctic region and, in particular, with regard to the different groups of indigenous peoples living there, who undoubtedly have a role to play in the administration of the region, it has been defined as a

* 1 2

3

Full Professor of International Law, University of Rome ‘Tor Vergata’. See U. Leanza, Il diritto degli spazi internazionali. Le nuove frontiere, Giappichelli, Torino, 1999, p. 107. M.W. Mouton, ‘The International Regime of the Polar Regions’, in Collected Courses of the Hague Academy of International Law, Vol.107, No. 3, 1962, pp. 169-286; E. Franckx, Maritime Claims in the Arctic: Canadian and Russian Perspectives, Martinus Nijhoff, Dordrecht, 1993, p. 6; D.R. Rothwell, The Polar Regions and the Development of International Law, Cambridge University Press, Cambridge, 2007; D. French & K.N. Scott, ‘International Legal Implications of Climate Change for the Polar Regions: Too Much, Too Little, Too Late?’, Melbourne Journal of International Law, No. 2, 2009, pp. 631-654. See, generally, F. Borgia, Il regime giuridico dell’Artico. Una nuova frontiera per il diritto internazionale, Editoriale Scientifica, Napoli, 2012.

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Maria Clelia Ciciriello “periphery of human settlement,” to emphasize the harsh conditions facing the human communities living there.4 19.2 The Progressive Interest of the States in the Polar Regions, Especially the Arctic The interest shown by the states of the international community in the two poles is relatively recent.5 After the discovery of vast regions over which no state had ever exercised any normal or stable form of sovereignty, from the fifteenth century onwards the emerging European colonial powers started showing an interest in them. The attempted conquest or occupation of these unexplored expanses of land initially focused on the more hospitable areas, where it would be possible to exploit the natural resources and foster the integration and development of foreign communities. Only much later did the states start moving towards the further and more inhospitable areas of the polar regions, especially to search for and exploit the natural resources existing there. It was precisely the presence of huge living and non-living natural resources that fuelled the interest of the international community in the polar regions and, today, in the Arctic in particular. However, while the interest shown by the states in the hospitable areas was accompanied, in parallel, by a growing focus in legal theory on how to acquire territorial sovereignty over the regions, the explorations carried out in these faraway territories, where setting up human settlements was so difficult, due to their geographical and physical peculiarities, made it clear, right from the onset, that it would not be possible to advance the need to exploit the resources present in the polar regions as justification for the acquisition of those territories by the states. In fact, the traditional concept of occupation did not appear applicable to these regions, precisely because of the impossibility, by the states themselves, of exercising any form of effective control over the territories.6 We should not forget, in fact, that sovereignty comes only with the exercise of effective government not over the land, but over human communities or, better still, the community’s activities. Quadri has

4 5 6

See O. Anisimov et al., ‘Polar Regions (Arctic and Antarctic),’ in J.J. McCarthy et al. (Eds.), Climate Change 2001: Impacts, Adaptation, and Vulnerability. Contribution of Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press, Cambridge, 2007, p. 801. A. Di Lieto, ‘L’Artico: laboratorio per un nuovo regime giuridico internazionale’, in T. Vassalli di Dachenhausen (Ed.), Atti del Convegno in memoria di Luigi Sico, Editoriale Scientifica, Napoli, 2011, pp. 331-346. See A. Cassese & P. Gaeta (Eds.), Diritto internazionale, Il Mulino, Bologna, 2006, p. 59, according to whom “Il territorio – quale che sia la sua ampiezza – è un elemento essenziale affinché uno Stato possa essere considerato soggetto di diritto internazionale. È tuttavia necessario che sul territorio sia esercitato un controllo effettivo.” In traditional international law the principal means for territorial acquisition are the occupation of land that does not belong to any state; the effective and peaceful assignment and transfer of land by means of a treaty; conquest, by military occupation and accession, which is a physical process whereby a new piece of land is formed alongside existing land.

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19  Global Warming and the Arctic Ocean: Challenges for International Law observed, on the matter, that international law assumes that the state that claims sovereignty over a certain territory should have the capacity to do so.7 In the last few decades, the legal status of the poles has become a key international issue, even more so since the scarcity of energy resources and the scientific research conducted in the polar regions have demonstrated the considerable economic importance of the resources present there. Faced with the increasing need to exploit those (mineral and other) resources, the states have started considering how to place the poles under their sovereignty. Ruling out the possibility of acquiring a traditional type of territorial sovereignty, the geographical features of the polar regions are now reflected in their legal peculiarity. However, the different characteristics of the Arctic, compared with the Antarctic, must necessarily lead to a thorough examination of the legal instruments currently available to define the regime, based on an evolutive approach descending from the opening up of new scenarios, following the impact that climate change has produced, with regard to the exercise of the activities by the Arctic states, not only on land, but also on the surrounding seas. 19.3 Prerequisites for the Reconstruction of a Legal Regime Applicable to the Arctic Initially, the vulnerability of the climate and of the land conditions slowed down the race to exploit the local resources, but the vastness of the natural resources located there, especially energy resources, has since increased the interest of the states in those regions of the planet, which had, until recently, been considered impracticable and unexplorable.8 Therefore, in the wake of the changing climate conditions, and primarily of global warming, which has in part changed the conditions in the region, the Arctic states, and several non-Arctic states as well, have progressively grasped the innumerable opportunities that are emerging in the polar regions, especially the Arctic, as a result thereof. For the purpose of reconstructing the legal regime applicable to the Arctic, we must first of all define the subjective background, identifying the players in the Arctic Question. First and foremost, these are the states bordering the Arctic Ocean: Norway, the Russian Federation, the United States of America (Alaska), Canada, Denmark (Greenland), followed by the other non-coastal Arctic states: Sweden, Finland and Iceland. However, the ‘Arctic Question’ entails solving not only the problems posed in connection with the regulation of the interests of the coastal states, but also those relating to the economic, political and environmental interests of all the other Arctic states and of the 7 8

See R. Quadri, ‘Droit international cosmique’, Collected Courses of the Hague Academy of International Law, Vol. 98, No. 3, 1959, pp. 505-599. See R. Purver, The Strategic Importance of the Arctic Region, Canadian Institute of Strategic Studies, Ottawa, 1986, p. 25.

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Maria Clelia Ciciriello international community as a whole.9 The question, therefore, goes beyond the geographical borders of the Arctic Ocean and invests all those states that, since the 1990s, have already launched forms of coordination in the international fora, with a view to solving the more urgent problems caused by global warming. Undoubtedly, the analysis of the practices put into place by the states enables us to identify two principal opposed trends in the geopolitics of the Arctic: on the one hand, there is the need to oppose the prejudicial effects of global warming; on the other hand, the pressing need for energy resources, by the states of the international community, must be tackled, by organizing and implementing the relevant exploitation activities. Undoubtedly, the management of the political, social and economic effects of global warming poses urgent questions for the entire international community. Global warming, in fact, is notoriously the primary cause of climate change, which has recently concerned the entire planet and the Arctic in particular. Here, in fact, the temperatures are rising twice as fast as on the rest of the planet and will eventually produce serious damage to both the marine environment and all human activities. Global warming, and the consequent melting of the ice caps, therefore, represent one of the main concerns of the human communities living in those areas and of the Arctic states themselves. This circumstance, in fact, has made the Arctic Ocean gradually more accessible, but also more vulnerable: the large deposits of minerals, oil and gas located in the Arctic region are becoming more and more easily exploitable and, over time, new commercial and tourist navigation routes will probably appear, leading to a natural increase in activities in the maritime sector. However, the possibility to exploit the living and non-living resources in the Arctic Ocean, and of those present on the continental shelf of the coastal states, as well as the gradual opening of ‘maritime motorways’ along the Arctic routes,10 will inevitably be accompanied by an increase in the harmful effects of human activities. This circumstance will eventually further jeopardize the already fragile Arctic ecosystem, with potentially devastating effects.11 19.4 The Security of the Region Faced with the Consequences of Human Activities The increased possibility of exploiting the resources in the polar regions will eventually have an impact on the delicate environmental balance existing there, bringing with it the risk of further environmental disasters. In other words, climate change in the Arctic, See C. Cinelli, ‘La “Cuestión Ártica” y el derecho internacional’, Revista española de derecho internacional, Vol. 51, No. 2, 2009, pp. 381-409. 10 E. Turco Bulgherini, Cabotaggio, federaggio, short sea shipping e autostrade del mare, Trattato breve di diritto marittimo, Giuffrè, Milano, 2007, p. 466. 11 B. Stonehouse, North Pole South Pole: A Guide to the Ecology and Resources of the Arctic and Antarctic, Prion, London, 1990, p. 193. 9

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19  Global Warming and the Arctic Ocean: Challenges for International Law including the Arctic Ocean, has the effect of exacerbating the already existing and interconnected problems related to both the environment and the economic and social development of the area in question. While the impact of global warming on the region’s environment is well known, the ­effects of the massive exploitation of the energy resources found there can only be foreshadowed, at this point, and are qualitatively uncertain. On the other hand, the construction of extraction facilities and the use of the waters for commercial navigation can have only harmful effects on the livelihoods of the indigenous populations.12 In this perspective, and for the purpose of speedily exploiting the resources, it is therefore necessary to not stop global warming. The race to exploit the resources of the Arctic can only have the logical consequence of changing the strategic and political balances in the region. All the Arctic states have expressed their will to extend their jurisdiction to include the sea and seabed, which, presumably, contain vast amounts of resources, thus reigniting territorial disputes that had lain dormant throughout the Cold War. The exploitation of resources, the increased navigation opportunities and the need for sustainable development, therefore, are only several of the controversial issues that have emerged in the ‘polar game’, which also features several significant geopolitical profiles, security first and foremost. Faced with climate change and the possibility of accessing new riches, new challenges have appeared for the stability and growth of the region. The principal problem, with regard to security, is the definition of the sea border between the coastal states, which has become a priority owing to the increased possibility of exploiting the waters in economic terms. Undoubtedly, the issue of environmental and energy security plays a key role in the Arctic Question. However, in both cases, it is a problem that the Arctic states are handling in a rather contradictory manner, alternating moments of tension and close collaboration. Although we can rule out, for the time being, the likelihood of an armed conflict actually breaking out in the Arctic, it is unquestionable that the interests of the states concerned are primarily aimed at the definition of the rights and obligations relating to the use of the basin. In other words, what the states want most is to define the use that can be made of the polar waters, and to what extent this can be achieved, consistently with their particular interests. The issue of bounding, therefore, is advisable, albeit not essential, for determining the rights of one or the other state. 19.5 Identifying the Legal Reference Framework Therefore, in order to make a first assessment of the future prospects of the region, from a legal point of view, with reference to the alternation between competition and cooperation 12 T. Bilstad, ‘Climate Change and Consequences for the Arctic’, in A. Mikkelsen & O. Langhelle (Eds.), Arctic Oil and Gas Sustainability at Risk?, Routledge, Oxon, 2008, p. 45.

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Maria Clelia Ciciriello between the Arctic states, it is necessary to securely identify the legal reference framework within which all the players involved must move. It is essential to assess the existing governance mechanisms and investigate how they can provide complementary or substitute legal instruments for ensuring a peaceful management, consistently with the fundamental principles of international law relating to environmental protection by the states concerned, and exercising the resource exploration and exploitation, scientific research and navigation activities. The international conventional framework that has played a decisive role in the Arctic Question is the United Nations Convention on the Law of the Sea (UNCLOS) of 1982. This Convention has determined the progressive ‘territorialization’ of the sea by the coastal states, in the various marine areas worldwide, identifying – from the coast towards the high sea – marine areas of different nature, with regard to sovereignty and/or jurisdiction. In these different maritime zones the coastal states are granted specific powers, with different legal scope, for the purpose of protecting their interests. In this framework, the states have attempted to considerably extend their jurisdiction over the marine areas adjacent to their coast.13 The end of the bipolar conflict and the desire to access the riches thought to be concealed beneath the Arctic Ocean have therefore triggered this extension attempt also in the polar waters, albeit with uncertain results, to date. The law of the sea, as enshrined in the Convention, has therefore introduced a series of new problems between the coastal countries, with regard to the bounding of the maritime areas adjoining their coast. In particular, the international conventional principles relating to the establishment of the exclusive economic zone (EEZ) and the regulation of the exploration and exploitation activities of resources on the seabed and subsoil of the continental shelf, those relating to the management of resources located beyond 200 nautical miles, those relating to fishing and scientific research, and the right of passage through the straits, are very hard to interpret in these waters, where the presence of ice often covers and conceals the coastline and the borders between the permanent and drifting ice. Regardless of their declarations of principle, the political will of the states most involved in the Arctic Question is not very clear. According to the Ilulissat Declaration of 2008, the representatives of Canada, the Russian Federation, Denmark and the United States (on behalf of Alaska), at the end of the Arctic Ocean Conference, expressed their intention to refer to the law of the sea, which […] provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research and other uses of the sea […]. 13 The consequence is that of the approximately 400 potential marine borders, half have not yet been traced. See, on the matter, D. Anderson, ‘Negotiating Maritime Boundary Agreements: A Personal View’, in R. Lagoni & D. Vignes (Eds.), Maritime Delimitation, Brill, Leiden, 2006, p. 122.

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19  Global Warming and the Arctic Ocean: Challenges for International Law The difficulty in identifying the reference legal framework in the Montego Bay Convention derives from the fact that the Declaration refers to a law of the sea, which, however, does not perfectly match the contents of the said Convention14 owing to the failed participation by the United States, which, despite its repeated promises to do so, has not yet ratified the Convention. Therefore, the reference to the law of the sea, rather than demonstrating the will to reach an agreement on a convention, which can then serve as a springboard for further developments, clarifies the privileged role that the Arctic states desire to cut out for themselves in the region, based on their geographical position and respective sovereign rights and economic and political interests. Therefore, the analysis of the Arctic Question cannot be based, as argued by some,15 on the thesis that there is no basic legal regime, but rather on the analysis of the law of the sea rules applicable to this geographical area, and of the existing conventions and regulations, in order to identify the relevant shortcomings and contradictions, which can then be tackled and solved, essentially through the choice of either “hard law” or “soft law” instruments, i.e. based on a regulatory or management approach, respectively.16 However, this objective cannot be pursued except through a strategic assessment, taking into a­ ccount the specific institutional framework and the (governmental and non-governmental) players involved in the Arctic. 19.6 The Players Involved in the Governance of the Arctic The players involved in the Arctic Question have different legal status and a different political and economic weight in the Arctic strategies. On the whole, it is a dynamic and organic institutional framework, in which the states, intergovernmental organizations and private-sector parties interact, come together or move in opposite directions, as the case may be, according to the interests at stake, be it the exploitation of resources, navigation, environmental protection or the protection of human rights (to mention but a few). It is therefore a complex institutional architecture, which does not have any systemic ­characteristics: the weight and strength of the players in the Arctic change asymmetrically and in an unbalanced manner.17 Regarding the primary subjects, the players most involved are the coastal Arctic states (the Russian Federation, Canada, the United States, 14 See contra T. Potts & C. Schofield, ‘Current Legal Developments – The Arctic’, International Journal of ­Marine and Coastal Law, Vol. 23, 2009, pp. 158-159. 15 Regarding the choice between hard law and soft law, see, inter alia, M. Bothe, ‘Legal and Non-Legal Norms – A Meaningful Distinction in International Relations?’, NYIL, Vol. 11, 1980, pp. 65-95; K.W. Abbott & D. Snidal, ‘Hard and Soft Law in International Governance’, International Organization, Vol. 54, 2000, pp. 421-456; J.B. Skjærseth, O.S. Stokke & J. Wettestad, ‘Soft Law, Hard Law, and Effective Implementation of International Environmental Norms’, Global Environmental Politics, Vol. 6, No. 3, 2006, pp. 104-110. 16 Potts & Schofield 2009, pp. 151-176. 17 Borgia 2012, pp. 55-61.

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Maria Clelia Ciciriello Norway and Denmark), the non-coastal Arctic states (Finland, Iceland and Sweden) and the third-party states with present or potential interests in the region and that have manifested a particular attention in the region (China, Italy, Japan, South Korea, but also France and the UK). However, it appears to be increasingly important to support the role of the so-called nonArctic players, especially of those nearest to the region (Sweden and Finland) because, to date, they have demonstrated that they are decisive in the intermediation and moderation of the more lively disputes, which, in the future, could escalate, owing to rising oil prices and the end of the global crisis, which has penalized the projects developed with a view to strengthening their presence in the continent. The ‘non-Arctic’ players have room to increase the consultations with government and non-government players, in order to broker acceptable deals for all the parties involved, prevent conflicts and improve scientific cooperation.18 Last but not least, it is necessary to take into consideration, alongside the intergovernmental organizations, other significant international players, such as non-governmental organizations (NGOs) and multinational corporations. In the Arctic region these nongovernmental players also have opposing interests and often end up bowing to the market and the economy rather than safeguarding the interests of the local communities.19 While the intergovernmental organizations often foster the implementation of environmental programmes aimed at supporting the balance of the marine ecosystems, multinationals are primarily focused on exploiting the energy and mineral resources, also through projects carried out in partnership with the Arctic states. Therefore, in this dialectic between opposing forces, it is not always easy to identify the principal need requiring protection, especially considering the behaviour of the states, which identify and pursue different and, at times, opposing objectives to tackle the most pressing interest or emergency. The entire ‘Arctic Question’, therefore, features the participation of a broad range of parties and opposing interests, which require the reconstruction of a more consistent legal regime, capable of providing a holistic vision of the problem. Essentially, what is needed is to go beyond the selfish needs of each state, in order to achieve more sophisticated mechanisms of governance capable of tackling the specific problems of the Arctic region according to a global approach, even lacking an ad hoc legal framework. 19.7 A Multilevel System for Managing the Arctic The Arctic cannot be viewed as a legal vacuum, and the rules and institutions briefly described above cannot operate in a vacuum; on the contrary, they should be viewed as part 18 See Interests and Roles on Non-Arctic States in the Arctic, Report of the Seminar Presented by the Individual National Capital Branch of the Canadian International Council and the Munk-Gordon Arctic Security Program, 15 October 2011, pp. 1-9. 19 An in-depth analysis on the issue of the corporate social responsibility of multinational enterprises can be found in F. Borgia, La responsabilità sociale delle imprese multinazionali, Editoriale scientifica, Napoli, 2007.

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19  Global Warming and the Arctic Ocean: Challenges for International Law of an interconnected – or multilevel – system of rules and institutions,20 capable of including all the decision-making processes, from the local to the international level, enabling the participation, at the various decision-making levels, of different legal systems (domestic, regional, cross-border and international) and the interaction of the non-binding rules and measures thus produced.21 The global and systemic approach in the reconstruction of the legal regime applicable to the Arctic is undoubtedly grounded in the indication, on a case-by-case basis, of the most suitable governance mechanisms for the solution of the specific problems examined by topic (cooperation, navigation, environmental protection, exploitation of resources and scientific research), with a view to choosing between soft law and hard law instruments, with respect to the future of the Arctic. When examining the possible problem-management mechanisms, in fact, with respect to the Arctic region, legal theorists are substantially faced with a choice between the development and strengthening of binding mechanisms and the production and multiplication of non-binding instruments. The theorists dealing with the determination and solution of the practical and legal problems raised by the characteristics of the region, when proposing instruments in support of the development of a more effective Arctic governance, are divided between the establishment of an ad hoc binding legal regime, the consolidation of the existing binding instruments, by developing other binding rules, and the creation of a system based on non-binding instruments, combined with the strengthening of the existing institutional architecture. Therefore, despite the Ilulissat Declaration, the supporters of the creation of an ad hoc Arctic Convention stress the need for managing the threats affecting this region by means of binding legal instruments: increased commercial activities, in fact, need to be effectively regulated in all the sectors through binding legal instruments aimed at the protection of the environment and the sustainable exploitation of the Arctic resources.22 Therefore, the need is felt to develop a treaty capable of regulating the intertwined nature of the challenges involving the Arctic ecosystem, such as managing increasing shipping and oil and gas development activities, on the one hand, and conserving fisheries, marine mammals, sea birds and habitat, on the other.23 An ad hoc Convention, precisely due to its nature as a binding legal instrument, would be able to create and implement these legal obligations in all the states, by means of binding objectives and programmes.24 Moreover, this would 20 E.C.H. Keskitalo, T. Koivurova & N. Bankes, ‘Climate Governance in the Artic: Introduction and Theoretical Framework’, in T. Koivurova, E.C.H. Keskitalo & N. Bankes (Eds.), Climate Governance in the Arctic, Springer, Dordrecht, 2009, p. 13. 21 R.O. Keohane & J.S. Nye, ‘Governance in a Globalized World’, in J.S. Nye & J.D. Donahue (Eds.), Governance in a Globalized World, Brooking Institution Press, Washington, DC, 2000, pp. 1-41. 22 S.G. Borgerson, ‘Arctic Meltdown: The Economic and Security Implications of Global Warming’, Foreign Affairs, Vol. 87, 2008, p. 4. 23 See B. Yeager & R. Huebert, A New Sea: The Need for a Regional Agreement on Management and Conservation of the Arctic Marine Environment, WWF International Arctic Programme, Oslo, Norway, 2006, p. 28. 24 R. Huebert, ‘The Need for an Arctic Treaty: Growing From the United Nations Convention on the Law of the Sea’, OY, Vol. 23, 2009, pp. 27-37.

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Maria Clelia Ciciriello also make it possible to determine the financial resources needed to create and support the existing and future legal structures, which would thus be able to withstand the attack of politics (suffice it to mention the Arctic Council, which has no predefined financing and can be easily influenced by politics).25 On the other hand, there are those who emphasize the presence of binding instruments already existing in the area and suggest, rather than the conclusion of a new ad hoc Convention, the strengthening of the existing rules and non-binding instruments. The idea of adopting a treaty that would freeze the existing processes is suggestive, in fact, of the possibility of cutting back negotiation times, precisely because no substantial changes to the current structure would be required. According to this approach, not only would ­international conventional instruments be created for the application of the law of the sea, but the existing cooperation bodies could be further strengthened, in particular the Arctic Council, for example, by creating an internal structure with the authority to formalize the decisions passed. Moreover, with regard to the settlement of disputes, it would thus be possible to await further developments in Arctic governance. Because today the states are called upon to resolve disputes peacefully, through mechanisms of their choice, issues ­related to dispute resolution, as well as those relating to responsibility, should be addressed at a later stage, given the time needed by politics for discussion. In this perspective, the realistic goal proposed by legal doctrine would be to develop a framework which, over time, with the increased scientific knowledge on climate change in the region could form the basis for subsequent protocols, adopted with regard to other relevant issues in the area. Ultimately, however, negotiating and concluding a treaty for the Arctic appears to be a complex task to achieve, while consolidating the existing instruments is a risky choice, given the current shortcomings and the lack of binding effectiveness of the provisions. On the other hand, some commentators believe that it is unrealistic, or even ineffective, as well as difficult to open negotiations for the adoption of a legally binding instrument.26 More concretely, many claim that there is no need to adopt a binding legal regime for the Arctic, but that rather it would be necessary to focus on the role of the Montego Bay Convention, acknowledging it as an appropriate means of action and working towards its implementation. In this perspective, it would be necessary to work on the existing 25 L. Nowlan, Arctic Legal Regime for Environmental Protection, IUCN Environmental Policy and Law Paper No. 44, IUCN – The World Conservation Union, Bonn, 2001, pp. 1-85, at 58. See also T. Koivurova & D.L. VanderZwaag, ‘The Arctic Council at 10 Years: Retrospect and Prospects’, University of British ­Columbia Law Review, Vol. 40, No. 1, 2007, p. 180, according to whom: “[…] climate change, combined with increasing accessibility of natural resource in the Arctic, hold the potential to become tipping points that could result in the adoption of a legally binding approach.” 26 Despite this, several authors still support the adoption of a binding instrument. See B. Carpenter, ‘Warm Is the New Cold: Global Warming, Oil, UNCLOS Art. 76, and How an Arctic Treaty Might Stop a New Cold War’, Environmental Law, Vol. 39, 2009, pp. 215-252; R. Huebert, ‘The Need for an Arctic Treaty: Growing From the United Nations Convention on the Law of the Sea’, OY, Vol. 23, 2009, pp. 27-37; T.C. Farren, ‘Shrinking Ice, Growing Problems: Why We Must Act Now to Solve Emerging Problems Posed by an IceFree Arctic’, Transnational Law & Contemporary Problems, Vol. 19, 2010, pp. 565-679.

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19  Global Warming and the Arctic Ocean: Challenges for International Law provisions, regardless of whether they are legally binding or soft law, rather than create new ones.27 These arguments, moreover, are supported mainly by practical geopolitical considerations. Reaching the consensus necessary to enter into a new agreement would be difficult: negotiations are long and expensive, and the political, constitutional and legislative obstacles would act as barriers to ratification, while the road to the adoption of soft instruments seems faster and more viable. It is also clear that treaties can lead to the crystallization of lower standards than those set out in the soft law instruments because of the reluctance of states to adhere to legally binding obligations. A new treaty could also create confusion between the earlier provisions and the new ones. Finally, in the light of the sovereignty interests at stake, of the reluctance of states to support more stringent regulations that, given the nature of the controls, would cause costs to rise, of the impediments to negotiation, as well as of the possible implementation problems, we must acknowledge that the adoption of a legally binding regime is now rather difficult. The existing system of governance consists of a set of legally binding instruments of ­domestic and international origin and a set of non-binding regional instruments. However, the fact that the Arctic states have recently opted, through the Ilulissat Declaration, for a soft law system, aimed at the coordination of scientific research, environmental management and sustainable development, even though it raises some doubts as to the ­so-called common denominator effect, where the lack of action by one or more states can impede the operations of others,28 is without doubt indicative of a certain desire to take things at a slower pace. Finding effective management mechanisms, in fact, is not easy, especially when it comes to multilevel systems, shared by subjects with different legal status. The different needs identified in the region in question as well as the aggregation dynamics contribute to making the Arctic Question particularly interesting, but also extremely difficult in terms of the identification of appropriate and effective governance mechanisms. In short, at present, there seem to be three possible scenarios that may present themselves in the forthcoming years in the Arctic: the existing situation is maintained, a mixed system is created, in which soft law and hard law can coexist, and an ad hoc convention instrument is developed. To make the most reasonable choice, in order to introduce effective legal instruments for the rational and sustainable management of the region, the Arctic and non-Arctic states concerned and the legal theorists participating in various international cooperation fora should engage in a meaningful way to make the best choices for the pursuit of the objectives that the Arctic scenario has placed before them. 27 See P. Taksøe-Jensen, ‘An International Governance Framework for the Arctic: Challenges for International Public Law’, in R. Wolfrum et al. (Eds.), New Chances and New Responsibilities in the Arctic Region, Berliner Wissenschafts-Verlag, Berlin, 2010, pp. 625-633, at 633: “The search for an ‘Arctic governance framework’ should therefore be complementary to the implementation of existing instruments and should determine the role of existing mechanisms.” 28 Potts & Schofield 2009, p. 172.

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20

Crossed Destinies: Polar Regions and International Law

Fiammetta Borgia* 20.1 Polar Regions: So Similar, So Different The polar regions, Arctic and Antarctica, show some similarities in a geographical and geological sense: both are characterized by extreme weather conditions, presence of ice and a very fragile ecosystem.1 The temperature ranges between winter and summer, and the significant albedo effect allows general maintenance of low temperatures, which is a characteristic of these areas, as well as long periods of uninterrupted darkness and light. Moreover, in the polar regions, the temperature variations are substantially higher than elsewhere: for this reason, these areas are valuable indicators, as well as important regulators, of climate change on the planet. However, also taking into consideration these general similarities, the differences of two poles at the morphological and geographic levels are substantial: The Arctic is basically an icy ocean surrounded by continents, while Antarctica is a frozen continent surrounded by the ocean.2 Indeed, the Arctic region could be conceived as the geographical area around the North Pole, composed of islands, archipelagos and floating masses of ice and water. This area is characterized by the presence of the Arctic Ocean, which constitutes an ­oceanic basin, enclosed by lands, with outlets in the Pacific Ocean through the Bering Strait and in the Atlantic through the Norwegian Sea and the Greenland Sea. On the other hand, Antarctica is characterized by the presence of the Antarctic continent, which with an extent larger than Europe, is surrounded by a barrier of floating ice continuing uninterruptedly until warmer waters. Although the climatic conditions of the polar regions appear prima facie homogeneous, these are extremely frigid in Antarctica, where the temperature varies from 0°C in

* 1 2

Assistant Professor of International law, University of Rome ‘Tor Vergata’. See U. Leanza, Il diritto degli spazi internazionali. Le nuove frontiere, Giappichelli, Torino, 1999, p. 107. See, generally, M.W. Mouton, ‘The International Regime of the Polar Regions’, Collected Courses of the Hague Academy of International Law, Vol. 3, 1962, pp. 169-286; E. Franckx, Maritime Claims in the Arctic: Canadian and Russian Perspectives, Martinus Nijhoff, Dordrecht, 1993, pp. 6 et seq.; D.R. Rothwell, The Polar Regions and the Development of International Law, Cambridge University Press, Cambridge, 2007; D. French & K.N. Scott, ‘International Legal Implications of Climate Change for the Polar Regions: Too Much, Too Little, Too Late?’, Melbourne Journal of International Law, No. 2, 2009, pp. 631-654.

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Fiammetta Borgia summer to -90°C in winter and the winds blow at a speed of 200 km/h. Also for this reason, ­Antarctica is like a deserted continent, where the presence of human life is limited only to the activities carried out for scientific research. The Arctic, instead, can be defined as the “periphery of human settlement,”3 since it is inhabited by various groups of indigenous people. Finally, the Arctic is certainly the polar region that suffers the most because of global warming. Indeed, while in Antarctica, the ozone hole seems to be able to shield the region from the effects of global warming, slowing down the progressive melting of ice,4 the Arctic region seems to be particularly sensitive to this phenomenon. The above-mentioned differences are so relevant that, except for their limited accessibility, remoteness and frozen temperatures, the polar regions seem not to have very much in common. As a consequence, an overall comparison of them should be considered inappropriate, especially in the light of international law. In this perspective, it is sufficient here to stress that in the Arctic there is no ad hoc international treaty regime, which has been especially conceived for the region, while in Antarctica the Antarctic Treaty System (ATS) has been in force for more than fifty years. Nowadays, it is clear that the recent climate change, resulting in the gradual reduction of the ice in the polar regions, has opened up new perspectives and new concerns at the international level. Both polar regions play a pivotal role in global climate change because of the interactions between the atmosphere, ice, oceans and biological systems that take place in these regions and affect the entire planet. If global warming represents the main source of climate change, the direct consequence of this phenomenon is the melting ice and the consequent rise in ocean levels. Both polar regions are therefore playing a key role in the international community, in particular with reference to the interests of coastal states in sovereignty claims as well as in the exploitation of living and non-living resources and in the exercise of commercial shipping.5 These interests, however, are opposed to the interests of civil society, which is increasingly concerned about the impact of these activities on these fragile ecosystems. In other words, because of global warming, the polar regions have been forced to address new risks and concerns, which seem similar. In this perspective, it is questionable whether one regime could learn from the other,6 but it is undeniable that the destinies of these regions have been and are definitively crossed.

3

4 5 6

Cf. O. Anisimov et al., ‘Polar Regions (Arctic and Antarctic)’, in J.J. McCarthy et al. (Eds.), Climate Change 2001: Impacts, Adaptation, and Vulnerability. Contribution of Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press, Cambridge, 2007, p. 801. J. Turner et al., ‘Antarctic Climate Change and the Environment’, Antarctic Science, Vol. 21, No. 6, 2009, pp. 541-565. R. Bermejo, L’Antarctique et ses ressources minérales: le nouveau cadre juridique, Presses Universitaires de France, Paris, 1990; E. Sciso, Le risorse dell’Antartide e il diritto internazionale, Cedam, Padova, 1990. T. Koivurova, ‘Environmental Protection in the Arctic and Antarctic: Can the Polar Regimes Learn From Each Other?’, International Journal of Legal Information, Vol. 33, No. 2, 2005, pp. 203-218.

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20  Crossed Destinies: Polar Regions and International Law 20.2 Setting the Limits for a Comparative Approach The interests of the international community in the polar regions are relatively recent. The existence of large territories of the planet where states had not established a stable and normal exercise of sovereignty has pushed the colonial states to conquer these regions since the fifteenth century. However, this process, aimed at occupying these unexplored areas, has primarily invested hospitable areas where it was possible not only to realize the exploitation of existing natural resources, but also to promote the integration and the development of the human communities. Only later, the interest of these countries has shifted in the direction of the most inhospitable regions of the planet, the Arctic and the Antarctic regions.7 While the interest of states in hospitable territories has increased the attention of the international law scholarship in the methods of acquisition of territorial sovereignty, the explorations carried out in such distant areas – unfavourable to every human settlement – have demonstrated the impossibility of applying the traditional concept of occupation to the polar regions, mostly because of the inability of states to exercise effective control on those territories. Thus, driven by the increasing need to exploit living and non-living resources existing there, at the beginning of the nineteenth century, states have begun to consider whether and how it was possible to submit the poles to their sovereignty. With no possibility to exercise a traditional territorial sovereignty, based on an effective control of the local community settled in a defined territory, some scholars proposed to use the ‘sector theory’ to resolve this problem. This theory was created to justify the sovereignty claim on the lands and waters included in a hypothetical triangle, having the peak in the North or South Pole and its basis in a line joining the outermost point of the land of each coastal state situated close to the pole. It was based on a sort of ‘attraction’ of the coastal lands on the adjacent sea. Even if this theory has remained underdeveloped in the states’ practice and has no legal basis in international law, it was the first attempt to accommodate national claims in the polar regions. After that, the aforementioned different geographical characteristics of these areas have been reflected on the legal regime of the polar regions until today and have led to completely different regimes. On one hand, Antarctica, conceived as a continent surrounded by the ocean, is the subject of a treaty by which states parties have agreed to a functional internationalization that allows the international community to freeze any claim to sovereignty over the continent; on the other hand, the Arctic, conceived as ocean surrounded

7

At present, the possibility to explore and to exploit living and non-living natural resources in the polar regions has been the catalyst for the interests of the international community in these areas. See P. Baev, Russia's Race for the Arctic Claim and the New Geopolitics of the North Pole, Jamestown Foundation, ­Washington, DC, 2007, pp. 1-17, at p. 3.

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Fiammetta Borgia by continents, is not the object of any legal regime created by a specific treaty and, according to the scholarship, it would not be possible to draw a real Arctic legal regime.8 In particular, the Antarctic system, represented by the Washington Treaty of 1959 and the agreements related thereto, originated mainly from the need to put an end to sovereignty claims over the continent, ‘freezing’ them.9 The well-known ‘agreement to disagree’,10 contained in Article IV of the Antarctic, has indeed made it possible to suspend the issues of sovereignty for the duration of the Treaty, starting the demilitarization of the region and the scientific cooperation among contracting parties.11 Later, the conventional legal instruments developed by the contracting states have been shown to have a specific relevance for the protection of the environment.12 The Antarctic legal regime is therefore currently an almost unique model of successful intergovernmental cooperation,13 which has been created by providing an internal ‘embryo structure’ through which the Antarctic Treaty (AT) has been able to guarantee the development of the system.14 The Arctic Ocean is already subject to a number of governance systems. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) applies to the entire Arctic Basin and is in force for all Arctic rim states except the United States, which accepts the relevant provisions of UNCLOS as customary international law. This governance system is playing a major role in the Arctic today. In addition, a number of related legal regimes are fully applicable to the Arctic. Finally, the intergovernmental forum called Arctic Council, although has no regulatory authority, has achieved considerable success in generating policy-relevant knowledge about the Arctic and bringing Arctic issues to the attention of global forums. In spite of this, there is no ‘ad hoc’ regulatory framework for the Artic. Given these differences, also in the legal regime of the two polar regions, in order to set the limits of a useful and effective comparison of the two legal regimes in consideration, it is necessary to stress some crossing points that exist in the present, mostly based on the presence of similar problems, even if they have been addressed by the international community with different approaches. 8 9 10 11

12 13 14

According to this perspective, there is no coherence in addressing Arctic issues, but each problem is addressed by the coastal states separately and not organically. Cf. in this perspective T. Scovazzi, ‘Zone polari’, Enciclopedia del diritto, Vol. 46, 1993, pp. 1213-1223, at p. 1215. Cf. The Antarctic Treaty, Washington, 1 December 1959, Art. IV, in UNTS, Vol. 402, 1961, p. 71. In this perspective cf. Sciso 1990, p. 3; L. Pineschi, La protezione dell'ambiente in Antartide, Cedam, Padova, 1993, pp. 10 et seq. Koivurova 2005, p. 206. About the relevance of Art. IV of AT, see, generally, P.C. Jessup & H.J. Taubenfeld (Eds.), Controls for Outer Space and the Antarctic Analogy, Columbia University Press, New York, 1959, p. 162 ss.; R. Dupuy, ‘Le Traité sur l’Antarctique’, Annuaire français de droit international, 1960, pp. 111-132; G. Battaglini, La condizione dell’Antartide nel diritto internazionale, Cedam, Padova, 1971, p. 348 ss.; R.E. Guyer, ‘The Antarctic System’, Collected Courses of the Hague Academy of International Law, Vol. 139, No. 2, 1973, pp. 147-226. For example, by deciding the exclusive use of Antarctica for peaceful purposes (see Art. I of ATS) or by introducing the prohibition of nuclear activities in the Continent (see Art. V of ATS). Cf. Pineschi 1993, p. 10. Cf. Sciso 1990, p. 38.

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20  Crossed Destinies: Polar Regions and International Law In the last twenty years, the polar regions have represented interesting case studies, discussed at the political and legal levels, through which it was possible to evaluate the adequacy of international law facing new global concerns.15 More specifically, with regard to the claims of sovereignty on the Antarctic continent and the waters that border its territory, the Treaty of Washington has made it possible to freeze any rights previously claimed by the states16; on the contrary, in the Arctic, the islands and the mainland are still under the sovereignty of the coastal states to which they belong, and the marine areas are subject to the jurisdictional powers of the latter, according to the evolution of the law of the sea. In addition, through the progressive establishment of the exclusive economic zone (EEZ) and the establishment of the outer limits of the continental shelf beyond 200 nautical miles from the baseline, coastal Arctic states are gradually moving towards a gradual territorialization of maritime zones. If the claims made by Arctic coastal states about the outer limit of their continental shelf should find the support of the Commission on the Limits of the Continental Shelf, little place would be left for the international seabed in the Arctic. About the geopolitical issues of the areas in consideration, while the Antarctica has been demilitarized after the establishment of the AT, the Arctic has been the object of significant military activity on the part of the United States and of the Soviet Union during the cold war. Indeed, the scientific activities implemented in Arctic Ocean are often addressed to remedy the spilling of contaminants occurred at that time.17 In the field of scientific and environmental cooperation, the collaboration among contracting parties began in the Antarctic around the 1960s, and it is currently considerably more advanced than in the Arctic, where the collaboration that took place in the 1990s was based mainly on non-conventional mechanisms and institutions, such as the Arctic Council and the Council Euro-Arctic Barents, which do not have binding powers. The approach adopted in this field is basically the opposite: in the Antarctic system there is a preponderance of legally binding instruments, such as agreements and protocols, and the presence of recommendations also with binding effects; in the Arctic, most of the initiatives are established and implemented through the adoption of non-binding instruments, such as declarations, statements, recommendations and other soft law adopted by organizations competent according to the UNCLOS, or by soft law bodies such as the Arctic Council.

15 G. Tamburelli, ‘Notes on the Legal Regimes on the Polar Regions’, in G. Tamburelli (Ed.), The Antarctic Legal System: The Protection of the Environment of the Polar Regions, Giuffrè, Milano, 2008, pp. 1-26. 16 P. Vigni, ‘Antarctic Maritime Claims: “Frozen Sovereignty” and the Law of the Sea’, in A.G. Oude Elferink & D.R. Rothwell (Eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, Martinus Nijhoff, The Hague, 2001, pp. 85-104. 17 See A. Kirchner, ‘The Destructive Legacy of the Cold War: The Dumping of Radioactive Waste in the Arctic’, European Environmental Law Review, Vol. 9, No. 2, 2000, pp. 47-55; S.G. Sawhill, ‘Cleaning-up the Arctic's Cold War Legacy: Nuclear Waste and Arctic Military Environmental Cooperation’, Cooperation and Conflict, Vol. 35, No. 1, 2000, pp. 5-36.

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Fiammetta Borgia However, even if the antinomies of discipline between the two polar regions are evident, it is clear that the need to protect the environmental balance of the poles and to suggest sustainable exploitation of resources in the continental shelf waters is nowadays quite similar.18 In scientific research, for example, the results obtained in the South Pole, especially in terms of the organization of research, from both the practical and the legal points of view offer a good example of collaboration that can, with some differences, be applied to scientific research in the Arctic. Similarly, the navigation in polar waters of both regions has the same problems, especially from the technical point of view, which today are a regulatory response in Polar Code, in the version of 2009. This text, originally developed for the Arctic waters, suggests to ships operating in polar waters some adjustments to certain technical requirements to prevent and manage emergency situations or accidents. As a consequence, since it is undeniable that an overall comparison of the two ‘polar legal regimes’ would not lead to effective results at the practical level, a comparison of ‘polar governance’ would appear essential to address new global concerns, such as global warming and the lack of energy resources. Moreover, based on this functional perspective, it can be correctly affirmed that the polar regions can learn from each other in the future. 20.3 Antarctic Governance The starting point of the development of Antarctic governance has been based essentially on the need to resolve political tensions associated with the various sovereignty claims on Antarctica, which were proposed by some coastal states during the cold war. After the 1957-1958 International Geophysical Year (IGY), basically focused on the ‘­Antarctic Question’, related to the governance and management of Antarctica, the international community demonstrated to be finally ready to address and to resolve these concerns. The United States, the Soviet Union, the seven claimant states19 and a number of other subjects involved in scientific activity in the region agreed to start negotiations in Washington to sign the AT for the management of the region. The AT was signed on 1 December 1959 and entered into force on 23 June 1961. The sovereignty claims have been resolved, as previously stated, with the well-known ‘agreement to disagree’ and the freezing of the sovereignty questions for the duration of the Treaty, set by Article IV of AT. This provision was pivotal for the legal regime of Antarctica, and it has permitted the demilitarization of the region and its establishment as a location for scientific research.20 Indeed, even if the text of the AT is relatively tiny, its provisions, although 18 D.M. Johnston, ‘The Future of the Arctic Ocean: Competing Domains of International Public Policy’, Ocean Yearbook, Vol. 17, 2003, pp. 596-624. 19 The seven claimant states have been Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom. A special position has been held by the United States and the Soviet Union that do not recognize any territorial claims and have not put forward any claim, but have reserved their right to do so in the future. 20 Cf. Koivurova 2005, p. 206.

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20  Crossed Destinies: Polar Regions and International Law limited, are directly addressed to demilitarization, science, environmental protection and resource management as well as sovereignty issues. Moreover, the Treaty has been able to promote the creation of other international legal instruments, which today compose the so-called ATS.21 AT was open to the participation of states, other than the twelve original signatory states, and the implementation of the system was entrusted to the Antarctic Treaty Consultative Meetings (ATCMs), in which also new states had been admitted as new ­consultative parties of the Treaty provided that they conducted “substantial research activities in ­Antarctica,” as indicated in Article IX of AT, or as non-consultative parties if they did not. The increasing participation in AT by states other than the original signatories and the need to manage the human activities in the Southern Ocean, where every jurisdictional power of coastal states has been excluded by the AT, led to the conclusion of the 1972 Convention for the Conservation of Antarctic Seals (CCAS), the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) and the 1988 Convention on the Regulation of Antarctic Mineral Resources Activities (CRAMRA). These last instruments proved to be particularly inefficient. When they were abandoned by France and Australia, the other parties agreed to create a new instrument to address the issue of mining. It was in this perspective that the 1991 Madrid Protocol on Environment Protection to the Antarctic Treaty, which prohibited mining indefinitely and represents the last legal instrument that completes the ATS, was negotiated. The Antarctic governance is currently complex. It comprises rules of general international law, the agreements that constitute the ATS, the recommendations adopted by the ATCM, some applicable rules set by the global environmental agreements and a number of nonbindings acts adopted within and outside of the ATS.22 This process has taken place in three stages23: first of all, through the development of appropriate measures taken by 21 The ATS in composed by: The Antarctic Treaty 1961; Agreed Measures for the Conservation of Antarctic Fauna and Flora, Brussels, 2 June 1964, in M. Austen & T. Richards (Eds.), Basic Legal Documents on International Animal Welfare and Wildlife Conservation, Kluwer Law Publisher, The Hague, 2000, pp. 3-10; Convention on the Conservation of Antarctic Seals, London, 1 June 1972, in ILM, Vol. 11, 1972, p. 251; Convention for the Conservation of Antarctic Marine Living Resources, Canberra, 20 May 1980, in ILM, Vol. 19, 1989, p. 841; Protocol on Environmental Protection to the Antarctic Treaty (the Madrid Protocol), Madrid, 4 October 1991, in ILM, Vol. 30, 1991, p. 1461; recommendations of Antarctic Treaty Consultative Meetings and decisions, measures and resolutions of Special Meetings, as well as Convention for the Regulation of Antarctic Mineral Resource Activities, Wellington, 2 June 1988, in ILM, Vol. 27, 1988, p. 859. 22 Cf. G. Tamburelli, ‘The Environmental Impact Assessment Annex to the Madrid Protocol on Environmental Protection’, in G. Tamburelli (Ed.), The Antarctic Legal System and Environmental Issues, Giuffrè, Milano, 2006, pp. 187-206, at p. 187. 23 On the evolution of Antarctic system see, generally, C.D. Beeby, ‘The Antarctic Treaty System: Goals, Performance and Impact’, in A. Jorgensen-Dahl & W. Østreng (Eds.), The Antarctic Treaty System in World Politics, St. Martin's Press, New York, 1991, pp. 4-21; A. Van der Essen, ‘The Origin of the Antarctic System’, in F. Francioni & T. Scovazzi (Eds.), International Law for Antarctica, Kluwer Law International, The Hague, 1996, pp. 17-29; D. Vidas, ‘The Antarctic Treaty System in the International Community: An Overview’, in O.S. Stokke & D. Vidas (Eds.), Governing the Antarctic: The Effectiveness and Legitimacy of the AntarcticTreaty System, Cambridge University Press, Cambridge, 1996, pp. 35-48; Ibid., ‘The Protocol on

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Fiammetta Borgia the consultative meetings provided for by the Treaty, the ATCM24; secondly, through the development of other international treaties, which could also include the participation of states other than contracting parties for the governance of Antarctica25; and finally, through the conclusion of agreements directly linked to the AT.26 This governance system, based on conventional legal instruments, therefore constitutes a regulatory system which that includes an integrated set of production rules and legal standards, originated from the Treaty of Washington. This characteristic is the basic difference in comparing the Arctic with the Antarctic, and it puts a decisive mark on the evolution of the two systems also when similar issues have been progressively addressed in the two polar regions. It is not surprising that the key provisions of the AT are the same that have found more advanced application over the years in the evolution of the ATS. For the purpose of this work, it is also appropriate to emphasize that some of them identify nowadays with the most relevant issues also for the Arctic region. For example, freedom of scientific research was at the beginning a strong motivating factor for the negotiations of AT and a factor in the development of effective cooperation among states in Antarctica. Article II provides for the freedom of investigation in ­Antarctica and cooperation towards that end. Aside from the original signatories, participation in decision making under the Treaty is limited to those countries that demonstrate their interest in Antarctica “by conducting substantial scientific research activity there” (Art. IX, para. 2). The Environmental Protocol, in Article 2, designates Antarctica as “a natural reserve, devoted to peace and science.” Antarctic science has led to breakthroughs such as the discovery of the ozone hole in 1985 and the recovery of data on the climate in the past hundreds of thousands of years. The ATCM, with the expert advice of the Scientific Committee on Antarctic Research and the Council of Managers of National Antarctic Programs, has adopted many measures on scientific cooperation and operational Environmental Protection to the Antarctic Treaty: A Ten-Year Review’, Yearbook of International Cooperation on Environment and Development, 2002, pp. 51-60; J. Grob, ‘Antarctica's Frozen Territorial Claims: A Meltdown Proposal’, Boston College International and Comparative Law Review, Vol. 30, No. 2, 2007, pp. 461-484; F. Aumond, ‘La “convergence antarctique”. Radioscopie de l'actuel consensus concernant la gestion du continent blanc’, Journal du Droit International, Vol. 136, No. 4, 2009, p. 1213; P.A. Berkman, ‘Antarctic Treaty Summit: Science-Policy Interactions in International Governance’, The Yearbook of Polar Law, Vol. 1, 2009, pp. 527-541; E. Morgera, ‘Antarctic Treaty System: Recent Developments’, Environmental Policy and Law, Vol. 39, No. 4-5, 2009, pp. 221-223; J. Crawford, ‘The Antarctic Treaty After 50 Years’, in D. French, M. Saul & N.D. White (Eds.), International Law and Dispute Settlement: New Problems and Techniques, Hart Publishing, Oxford, 2010, p. 271. 24 C. Focarelli, ‘The Legal Nature of the Acts Adopted Under Article IX of the Antarctic Treaty and Their Implementation in Italy’, in Francioni & Scovazzi 1996, pp. 505-577; Sciso 1990, p. 40; J. Jabour & M. Weber, ‘Is It Time to Cut the Gordian Knot of Polar Sovereignty?’, Review of European Community & International Environmental Law, Vol. 17, No. 1, 2008, pp. 27-40. 25 Cf. Convention on the Conservation of Antarctic Seals, cit.; Convention for the Conservation of Antarctic Marine Living Resources, cit.; Convention for the Regulation of Antarctic Mineral Resource Activities (CRAMRA), cit. 26 Cf. Protocol on Environmental Protection to the Antarctic Treaty (the Madrid Protocol), cit.

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20  Crossed Destinies: Polar Regions and International Law matters such as telecommunications, meteorology, transportation and other subjects of importance to the Antarctic research programmes. Demilitarization of Antarctica, set by Article I of the Treaty, has provided for the peaceful use of the continent with the consequence that all military weapons as well as military bases of manoeuvres have been prohibited in the region. Cooperation among states, started with the AT, has developed in the following years in a ‘quasi-institutionalized’ mechanism, with the increasing role of ATCMs, which are today the governing bodies of the system. The decisions from the meetings of the contracting parties have received gradual recognition from the international community, so that they could be considered binding. In addition, after the conclusion of the Madrid Protocol, the ATCMs, as a soft law body, have received additional competence in additional scrutiny and review of activities having a possible environmental impact.27 But the main driver of the system has been given by Article IV of the AT, which resolved sovereignty claims, by providing a flexible approach to sovereignty.28 Following Article IV of the AT, nothing in the Treaty can change the status quo ante with regard to the seven pre-existing claims or bases of claim (US and Russia). It safeguards the different positions of the states at that time.29 As a consequence, the issues of sovereignty remain ‘frozen’, unaffected by state actions, and the governance of the region is realized in accordance with the AT provisions and, more in general, ATS instruments. Thus, Article IV seems to have saved Antarctica from international competition, especially in comparison with the current situation of the Arctic. 20.4 Arctic Governance The opening of new challenges and opportunities in the Arctic has opened a gold rush for coastal and non-coastal states in the absence of a regulatory framework, such as the ATS.

27 See O. Orheim, ‘The Committee on Environmental Protection: Its Establishment, Operation and Role in Antartic Treaty System’, in D. Vidas (Ed.), Implementing the Environmental Protection Regime for the ­Antarctic, Cambridge University Press, Cambridge, 2000, pp. 107-124. 28 Jabour & Weber 2008, p. 35. 29 Following the Art. IV of AT “Nothing contained in the present Treaty shall be interpreted as: (a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; (b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise; (c) prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State's right of or claim or basis of claim to territorial sovereignty in Antarctica.” The same Article goes on to preserve the status quo by providing that “no acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.”

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Fiammetta Borgia However, the Arctic region cannot be conceived as a legal or political vacuum.30 It is a portion of the sea surrounded by coastal states to which the law of the sea, as well as a large number of bilateral and multilateral agreements, which can regulate some specific issues, can be applied. In this framework, ‘meta-legal’ initiatives, created and implemented by states and intergovernmental organizations involved in the governance of the Arctic, such as soft law instruments and bodies, can also be included. However, even if these kinds of initiatives have multiplied in recent years in the Arctic region, it is still difficult to affirm that there is a legal framework, specifically built for the Arctic region, as it has been shown in the case of the Antarctic region.31 State cooperation in the Arctic is quite recent. After the great Arctic explorations of the early twentieth century, the area has become, in the second half of the last century, a theatre of the northern front of the cold war, and only in 1987 did the former Soviet Union establish a first step for cooperation on a regional scale. Thus was launched the Murmansk initiative,32 aimed at protecting indigenous peoples allocated therein, and, later, in 1991, through the Rovaniemi process,33 it was made the first pillar for cooperation on environmental protection in the Arctic. Both these initiatives can be conceived as the starting point of a closer collaboration realized later through the Arctic Council. This institution, established in September 1996, which includes in its membership Canada, Denmark, ­Finland, Iceland, Norway, the Russian Federation, Sweden and the United States, is still the most important regional intergovernmental forum for the promotion of a joint policy on the environment in the Arctic. However, until today, this cooperation has not led to the creation of an institutionalized legal system like the one in Antarctica. The idea that such collaboration could lead to an extension of the experience of the AT in the Arctic region, in order to come to a complete demilitarization and denuclearization of the area, has been and is still rejected by the international community. Even today, the only conventional instrument that plays a decisive role in the Arctic governance is the aforementioned UNCLOS.34 In force of this Convention,

30 See Parlamento europeo, Relazione su una politica europea sostenibile per il Grande Nord (2009/2214(INI)), 16 December 2010, p. 20. Cf. R. Wolfrum, ‘The Arctic in the Context of International Law’, in R. Wolfrum et al. (Eds.), New Chances and New Responsibilities in the Arctic Region, Berliner Wissenschafts-Verlag, Berlin, 2010, pp. 533-543, in particular p. 543. 31 Cf. R.J. Dupuy, ‘Le Statut de l’Antarctique’, Annuaire français de droit international, Vol. 4, 1958, pp. 196-229; Ibid., ‘Le Traité sur l’Antarctique’, Annuaire français de droit international, Vol. 6, 1960, pp. 111-132; ­Battaglini 1971; G.D. Triggs (Ed.), The Antarctic Treaty Regime: Law Environment and Resources, Cambridge University Press, Cambridge, 1987; Francioni & Scovazzi 1996; P.J. Beck, ‘The United Nations and the Antarctica, 2005: The End of the “Question of Antarctica”?’, Polar Records, 2006, Vol. 3, pp. 217-227; Berkman 2009; D.R. Rothwell, ‘Sovereignty and the Antarctic Treaty’, Polar Records, No. 1, 2010, pp. 17-20. 32 M. Colacrai, ‘Los regimenes de la Antartica y del Artico’, Rivista di studi politici internazionali, Vol. 68, No. 2, 2001, pp. 278-289, in particular p. 283. 33 Cf. Rovaniemi Declaration on the Protection of the Arctic Environment, 14 June 1991, Rovaniemi. 34 Cf. United Nations Convention on the Law of the Sea, 10 December 1982.

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20  Crossed Destinies: Polar Regions and International Law the Arctic coastal states have greatly expanded their jurisdiction over marine areas adjacent to their coasts, realizing a gradual creeping jurisdiction of the Arctic Ocean.35 The Convention allows the Arctic coastal states to define the baseline of their territorial sea in order to divide their internal waters from the territorial sea as well as the possibility of declaring from that line an EEZ of 200 miles, where the coastal states may claim rights on the resources of the water column, as well as on their continental shelf. Moreover, the application of the Convention allows coastal states to extend their respective continental shelf from 200 to 350 miles from the baseline when they can prove that its continental margin extends beyond the limit of 200 miles to the Commission on the Limits of the Continental Shelf, set up under Article 76 of the Convention. This possibility is particularly significant in the Arctic. All the Arctic states, which ratified the Convention, have submitted or have the intention to submit, to the Commission a request for the extension of the continental shelf. However, this possible overlapping of sovereignty claims in the Arctic is not only potential. The application of the Convention to the Arctic is having the direct consequence of raising or exacerbating a number of new and previous problems among the coastal states with regard to the delimitation of the maritime areas adjacent to their coasts and the regulation of the activities, which can be conducted in the Arctic. In particular, the need to exactly delimitate EEZs as well as the definition of the outer limit of continental shelves is now increased by the need to clearly regulate the management of living and non-living Arctic resources, and to resolve the concerns about fishing and scientific research activities, as well as navigation through the Arctic straits. All these issues require an effort of interpretation, which is particularly difficult in these waters where the presence of ice often covers and clears the coastline as well as the boundary between permafrost and ice drift. Five states are directly adjacent to the Arctic Ocean, but only the maritime delimitations between Norway and Russia and between the United States and Canada can be found on the mainland, and they are not put into question. But there is still no agreement on the delimitation of the continental shelf between Canada and the United States in the Beaufort Sea, or on the sea boundaries between Denmark and Canada in the Nares Strait, between Ellesmere Island and Greenland, nor on the definition of the outer edge of the continental shelf of the Arctic coastal states. These differences between the members in respect of the delimitation of sea boundaries could develop into international disputes. However, in 2008, the five Arctic coastal states, permanent members of the Arctic Council, affirmed in the Ilulissat Declaration their intention to minimize their conflicts and to be ready for a greater collaboration aimed at developing and implementing strategies, environmental and energy policies that may arise from the same application of the law of the sea.36 In the same Declaration, the coastal states affirmed that although the Montego 35 See D.H. Anderson, ‘Negotiating Maritime Boundary Agreements: A Personal View’, in R. Lagoni & D. Vignes (Eds.), Maritime Delimitation, Brill, Leiden, 2006, p. 122. 36 The Ilulissat Declaration, Artic Ocean Conference, 27-29 May 2008, Ilulissat (Greenland).

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Fiammetta Borgia Bay Convention is an almost common regulatory basis for building future collaborations, other multilateral treaties applicable to the geographic area concerned cannot be ignored: the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Materials (London Convention),37 the 1974 International Convention for the Safety of Life at Sea (SOLAS),38 MARPOL 73/78 on the Prevention of Pollution from ships and its annexes39 to the Convention on Biological Diversity of 1992,40 as well as bilateral agreements in specific subjects.41 Finally, it is necessary to include in this framework the numerous non-binding instruments prepared by the International Maritime Organization (IMO), as guidelines for ships operating in Arctic ice-covered waters,42 and the number of instruments that do not provide for mandatory environmental requirements, chiefly, the Strategy for the Protection of the Arctic,43 now included in the work of the Arctic Council. The Arctic governance is currently based on the law of the sea and other legal instruments as well as on the activities of the Arctic Council and its working groups from the late 1990s of the last century. Through this body, indeed, the Arctic states have promoted projects and programmes of cooperation in environmental science and sustainable development of the region, reaching to involve non-state actors in policy developments. The advantages of this ‘multi-polar cooperation’ are obvious: the ability to create tools, legal and non-legal cooperation mechanisms, tailored to the needs of the region is more effective than those offered by bilateral agreements, where the possibility to include in the system indigenous peoples, non-governmental organizations and the private sector is remote. The Arctic governance is today multi-level,44 multi-sectorial and of mixed participation. A multilevel governance system provides for different prescriptive levels, able to contain all types of decision making, from the local to the international, and belonging to different legal orders (national, regional and international). Also relevant in this framework is the capability of interaction between legal standards and non-binding instruments. At present, even in the Arctic could be found a system of multi-level governance that is not yet systematic and coherent. The different levels of cooperation and standards, indeed, are not fully integrated. As a consequence, there is not yet an effective interaction between hard law and soft law,

37 Cf. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention), 13 November 1972. 38 Cf. International Convention for the Safety of Life at Sea (SOLAS), 1 November 1974. 39 Cf. International Convention for the Prevention of Pollution from Ships (MARPOL), 2 November 1973. 40 Cf. Convention on Biological Diversity, 5 June 1992. 41 Rothwell 2007, p. 156 ss. 42 Cf. IMO, Guidelines for Ships Operating in Arctic Ice-Covered Waters, MSC/Circ.1056-MEPC/Circ.399, 23 December 2002. 43 Cf. Arctic Council, Declaration on the Protection of the Arctic Environment, 14 June 1991. 44 See, generally, G. Winter (Ed.), Multilevel Governance of Global Environmental Change. Perspectives From Science, Sociology and the Law, Cambridge University Press, Cambridge, 2006; O.S. Stokke, ‘Environmental Security in the Arctic: The Case for Multi-Level Governance’, International Journal, Vol. 64, No. 4, 2011, pp. 835-848.

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20  Crossed Destinies: Polar Regions and International Law which could be crucial for the resolution of many Arctic issues and for the implementation of an integrated Arctic governance. In addition, the Arctic governance has evolved over the years into a multi-sectorial model. There have been in recent years many expectations, concerns and needs felt by the states and by non-state actors towards the Arctic region. In response to these needs, the Arctic governance has been developed with the aim of covering various sectors of states and different disciplines. The Arctic governance supposes, therefore, a management of all relevant issues in the Arctic, relating to claims of sovereignty, cooperation, navigation in Arctic waters, as well as environmental protection, exploitation of resources and scientific research. Finally, with regard to the subjective sphere, the Arctic governance is characterized by the interplay of different players, like international legal subjects, such as states and intergovernmental organizations, and non-state actors, such as soft law organizations, non-governmental organizations, indigenous peoples and multinational enterprises, especially focused on energy. All of these players are called in the Arctic not only to coexist but also to communicate and cooperate with each other. It is clear that the interaction between subjects of international law and non-state actors is not equal, nor easy, and often implies a compression of the rights of the latter in respect of the former. However, this feature is another fundamental peculiarity of the Arctic governance. The next step is obviously directed towards an integrated governance system, but at present there cannot be found between the Arctic states any intention to do so. In the absence of a legal regime that is consistent, systematic and effective, the current trend is aimed at promoting and at straightening the cooperation among Arctic states, which may provide – only in the future – for a legal regime of the Arctic. 20.5 A Recent Crossing Point: Navigation in Polar Regions In the early 1990s, after the Exxon Valdez,45 the IMO started to work on a ‘code’ for navigation in polar waters. The aim of this instrument was to harmonize international legislations of individual states to ensure that vessels during the voyage in polar waters could not be subject to very different regulations when crossing several EEZs.46 45 See, generally, B.V. Brennan, ‘Liability and Compensation for Oil Pollution From Tankers Under Private International Law: TOVALOP, CRISTAL, and the Exxon Valdez’, Georgetown International Environmental Law Review, Vol. 2, 1989, pp. 1-18; S. Raucher, ‘Raising the Stakes for Environmental Polluters: The Exxon Valdez Criminal Prosecution’, Ecology Law Quarterly, Vol. 19, No. 1, 1992, pp. 147-185; V.P. Goldberg, ‘Recovery for Economic Loss Following the Exxon Valdez Oil Spill’, Journal of Legal Studies, Vol. 23, No. 1, 1994, pp. 1-39; V. Bou Franch, ‘Exxon Valdez’, in J. Juste Ruiz & T. Scovazzi (Eds.), La práctica internacional en materia de responsabilidad por accidentes industriales catastróficos, Tirant lo Blanch, Valencia, 2005, pp. 191-262. 46 See Ø. Jensen, The IMO Guidelines for Ships Operating in Arctic Ice-Covered Waters: From Voluntary to Mandatory Tool for Navigation Safety and Environmental Protection?, Fridtjof Nansen Institute (FNI) Report, No. 2, 2007, pp. 1-33, in particular p. 8.

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Fiammetta Borgia Thus, in 1991, Germany suggested the inclusion in Chapter II of SOLAS provisions, according to which vessels operating in polar waters should be particularly strengthened to address the obstacles caused by the presence of ice. The suggestion gained wide acceptance among the other states parties of the Convention, and the proposal was submitted to the IMO Sub-Committee for the design and equipment of ships, which decided to make Canada responsible for developing, with the help of experienced staff, rules for ships operating in polar waters. The result of this work has been the redaction of a Polar Code concerning the identification of the rules of construction for ships and equipment that states were required to comply with in polar waters. The document sought the harmonization of disciplines to safeguard measures among IMO members, under the inspiration of the precautionary principle. The provisions of the Polar Code, therefore, were aimed at the prevention of serious accidents at sea, in order to protect human life and circumpolar ecosystems. The project also included the development of an effective ad hoc legal regime concerning navigation in polar waters, implemented by the signature of an international convention later. However, the Polar Code, in its original structure, immediately proved to be unable to solve the problems identified by the IMO.47 In particular, the proposal to create a single document for shipping through the waters of both poles was, at that time, unsuccessful. Indeed, although shipping in polar areas presents the same risks, caused by low temperatures and the related inability to deal with any environmental techniques normally used in temperate waters throughout the world,48 given the legal and geopolitical differences between the two areas, it was not possible to obtain a single legal regime applicable to both poles, also relating to navigation. For these reasons, the Marine Safety Committee (MSC) suggested then that the Code had been designed and developed as an act of soft law, which had been applied only to the Arctic. The text of the IMO guidelines for ships operating in Arctic ice-covered waters adopted in 2002 has, therefore, no binding effects, as explained in Section 2, paragraph 8, of the Preamble, where it was stated that it is not prevalent on national control of shipping.49 Moreover, in setting out the general principles and objectives of the Code, the text of the Polar Guidelines has called the scope of application of the same space50; it has operated

47 L.W. Brigham, ‘The Emerging International Polar Navigation Code: Bi-Polar Relevance?’, in D. Vidas (Ed.), Protecting the Polar Marine Environment. Law and Policy Pollution Prevention, Cambridge University Press, Cambridge, 2000, pp. 244-262. 48 T. Scovazzi, ‘Il Progetto di Linee Guida per la navigazione antartica: una base per la cooperazione tra le Parti consultive antartiche e l’IMO?’, in S. Marchisio & G. Tamburelli (Eds.), L'evoluzione del sistema antartico. L'attuazione in Italia del Protocollo di Madrid sulla tutela dell'ambiente antartico, Giuffré, Milano, 2001, p. 54. 49 Cf. § 2, para. 8 of Guidelines Preamble: “These Guidelines are not intended to infringe on national systems of shipping control.” 50 Cf. Sez. G, para. 3.2 of Polar Guidelines.

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20  Crossed Destinies: Polar Regions and International Law relevant references to the SOLAS Convention,51 and it has suggested criteria for the construction of ships (classes for introducing the polar ship),52 by stressing the need for these resources to be directed by specialists trained for navigation in polar waters.53 Therefore, in this version, the guidelines have been characterized as having a limited geographical area of application (the Arctic) and for identification of additional requirements for navigation, aside from those already required by SOLAS and MARPOL. In 2004, however, at the request of the XXVII Antarctic Treaty Consultative Meeting, the MSC has considered the possibility of reviewing the guidelines to extend their application to the Antarctic waters. The new project was ready for the approval of the MSC in early 2009 and was adopted during the XXVI IMO Assembly in December 2009. This new text of the Polar Guidelines is still in force and has the primary aim of mitigating the additional risks of polar shipping due to severe climatic conditions. This tool addresses the issue of safe navigation in polar waters, recommending that operators adapt their ships to further technical requirements, related to the storage, communications, main and auxiliary machinery, control systems, which are able to provide adequate levels of safety, both in prevention and in emergency situations or accidents for both polar regions. This has constituted one of the best examples of crossing destinies in the legal regime of the polar regions. However, despite this result, the destinies of the polar regions seem to move away from each other once again. Some states, in particular Denmark, Norway and the United States, have argued the need to make further advancement of these guidelines through the elaboration of a binding code of polar navigation, limited to Arctic waters. The Code for ships operating in polar waters is under development and should be ready by the end of 2013; it will cover a large range of issues: from design to construction, from training to search and rescue, and environmental issues. As to its spatial scope, the current proposal is to restrict the scope of this instrument only to the Arctic waters, possibly by including the code in the existing conventions (i.e. SOLAS Convention), or alternatively by the conclusion of a new conventional instrument. But the most plausible hypothesis is finally that the code will be embedded in the SOLAS Convention, as the process of its transformation into a binding agreement within the IMO would be more effective. 51 Cf. Sez. 1.2 of Guidelines Preamble: “These Guidelines for ships operating in Arctic ice-covered waters (hereinafter called the Guidelines) are intended to address those additional provisions deemed necessary for consideration beyond existing requirements of the SOLAS Convention, in order to take into account the climatic conditions of Arctic ice-covered waters and to meet appropriate standards of maritime safety and pollution prevention.” 52 Cf. Sez. 1, para. 1.1.3 of Guidelines: “Parts B and C of these Guidelines provide guidance for Polar Class and Non-Polar Class Ships.” 53 Cf. Guidelines Key Provision, G-3.10: “‘Ice Navigator’ means any individual who, in addition to being qualified under the STCW Convention, is specially trained and otherwise qualified to direct the movement of a ship in ice covered waters.”

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Fiammetta Borgia 20.6 Concluding Remarks The polar regions have gradually attracted the interest of international community in the next century, but the legal regime of the Arctic and Antarctica has developed over the years very differently. Different geographical and geopolitical conjectures have led to the evolution and the implementation of different systems of governance. In Antarctica the ATS has ensured a regime governed by hard law instruments, while in the Arctic the framework is evolving towards a multilevel and multi-sectorial governance system. From this perspective, the two polar regions are not truly comparable from the point of view of international law. Despite this circumstance, their destinies have often been linked. In this crossing of destinies, climate change, environmental issues and the exploitation of natural resources have been some of the points of convergence of the two systems. However, the responses given to similar needs have often been quite different. One of the best examples of this continuous intersection of interests and responses is polar navigation. On this issue, more than elsewhere in the governance systems, it is easy to see the contrast between the will of the states to manage the same activity with the same instruments and the creation of an international instrument, the ‘Polar Code’, which has a different value and impact in the Arctic or Antarctica. This proves, once again, that while points of convergence between the systems can be easily found, it is very difficult to affirm that the two systems have learned from each other.

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21

The Last Frontier of the International Protection of Human Rights at the Outermost Bounds of the Earth: Polar Activities between Cultural and Biological Diversity

Federica Mucci* 21.1 Preliminary Remarks Human rights, polar activities and cultural and biological diversity are all different issues in international law. As for ‘polar activities’, the adjective is not used here in a strictly geographical sense, and it should be noted that there is no general and univocal juridical definition of the two polar regions.1 As for the complexities inherent in biological and cultural diversity, they have recently surfaced – but with unusual urgency – in the international legal system. To highlight their interconnections in the international practice relating to the polar regions is not tantamount to inferring that this is theoretically an ideal point of view to study and comment the international regime of Antarctica and the existing international sources and institutions pertaining to the Arctic region. Nevertheless, these interconnections do exist and are constantly surfacing. The implementation of human rights in the very peculiar context of the polar regions could seem a marginal problem from the point of view of the number of individuals involved, since there is no native and almost no permanent human population in Antarctica * 1

Assistant Professor of International law, University of Rome “Tor Vergata.” Here are some relevant examples. Art. VI of the Antarctic Treaty (1959) identifies its ‘geographical coverage’ with the area south of 60° South Latitude, including all ice shelves and “in Arctic-wide cooperation, the Arctic Circle has been used as a criterion for membership, with only those States invited to participate in cooperation who possess areas of territorial sovereignty above the Arctic Circle” (see T. Koivurova, ‘Environmental Protection in the Arctic and Antarctic: Can the Polar Regimes Learn From Each Other?’, International Journal of Legal Information, Vol. 33, No. 2, 2005, pp. 203-218, at p. 205). The strictly geographical criterion, however, is abandoned to adopt a functionalist approach, and thus referring to “the Antarctic marine ecosystem,” in the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR, 1329 UNTS 48), whose scope of application is extended to the Antarctic Convergence (see Art. 1). CCAMLR contains a subordination clause in respect of the rights and obligations under the International Convention for the Regulation of Whaling and the Convention for the Conservation of Antarctic Seals. As for the 1946 Washington International Convention for the Regulation of Whaling, ICRW, 161 UNTS 361), it “applies to factory ships, land stations and whale catchers under the jurisdiction of the Contracting Governments and to all waters in which whaling is prosecuted [. . .]” (see Art. I.2).

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Federica Mucci and the resident population in the Arctic circle is relatively small. However, when we consider individual human rights, the life of tens of thousands, or thousands, or just a few people or even the life of a single person is by no means less important than the life of millions or billions of people. Paradoxically, when we consider the collective aspects of human rights, the special situation of a small ethnic or cultural group usually deserves immediate and careful attention because of its fragility, which is clearly worsened by extreme geographical conditions. This is demonstrated by the special rules already included in the early international agreements for the protection of marine mammals and other animal species and recently reiterated in the European Union (EU) Regulation 1007/2009.2 All the more so when our attention is focused on cultural diversity as a common heritage of humanity and thus a so-called third-generation human right.3 The extreme fragility of the Antarctic equilibriums also accounts for the very protective international environmental regime adopted for the sixth continent, whose foreseeable values after World War II were held to be “predominantly scientific rather than strategic or economic.”4 The same environmental concerns are relevant to the Arctic region, but 2

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EC Reg. 1007/2009, OJ 2009 L 286/36. For a summary of cases, of relevance for the protection of human rights in the Arctic region, examined by the ICCPR Committee, see J.T. Möller, ‘Case Law of the UN ­Human Rights Committee Relevant to Members of Minorities and Peoples in the Arctic Region’, in G. ­Alfredsson, T. Koivurova & K. Hossain (Eds.), The Yearbook of Polar Law, Vol. 3, Martinus Nijhoff, Leiden, 2011, pp. 27-56. A very interesting case surfaces in Ivan Kitok v. Sweden where, on the one hand, the regulation of an economic activity as an essential element in the culture of an ethnic community is considered to fall under Art. 27 of the Covenant and, on the other hand, it is deemed to be sufficiently protected even if the interested subject “is permitted, albeit not as of right”, to undertake it. Due relevance should be attached to the concern of the Committee about “ignoring of objective ethnic criteria in determining membership of a minority” (see views of the Committee in Communication No. 197/1985, CCPR/C/33/D/197/1985, adopted on 27 July 1988, in particular paras. 9.2, 9.7 and 9.8). For the designation of cultural diversity as common heritage of mankind, see UNESCO 2001 Declaration and 2005 Convention. Third-generation human rights were initially theorized in the 1960s and 1970s, thinking also of the draft of a third UN Covenant. The concerns that have been so labelled are, in fact, global problems to be properly addressed in order to fully implement both first generation civil and political rights and second-generation social, economic and cultural rights. The distinctive feature of the third generation is the collective entitlement to ‘humanity’, which entails inter- and intragenerational equity and solidarity, to be necessarily pursued at an international level (see P. Alston, ‘A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law?’, Netherlands International Law Review, Vol. 19, No. 3, 1982, pp. 307-322; K. Hossain, ‘The Realization of the Right to Environment and the Right to Development in Respect to the Arctic Indigenous Peoples’, in Alfredsson et al. 2011, pp. 129-153. The statement about the scientific values of Antarctica is included in a secret Aide-memoire and Draft agreement on Antarctica of the US Department of State, handed to the embassies of Argentina, Chile, the United Kingdom, Australia, New Zealand, France, and Norway on 9 August 1948 (published in National Security Council, 1958, ‘Antarctica’, NSC 5804, 25 February 1958). Eisenhower Library, National Archives, Abilene, Kans., cited by C. Lüdecke, ‘Parallel Precedents for the Antarctic Treaty’, in P.A. Berkman et al. (Eds.), Science Diplomacy – Antarctica, Science and the Governance of International Spaces, Smithsonian Institution Scholarly Press, Washington, DC, 2011 (open access internet publication at ), pp. 253-263, at p. 259. The United States had come to the conclusion that “an international status for the Antarctic area is the most practicable and preferable method of solving the problem of conflicting and potentially conflicting claims” (Department of State 1948, p. 36).

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21  The Last Frontier of the International Protection of Human Rights sovereignty over Arctic land territories and the marine jurisdiction of states on Arctic waters have prevented the early establishment of a strong international regime equalling the Antarctic one. Nonetheless, if we consider the protection of endangered species – a concern that is now included under the greater umbrella of biological diversity in the framework of environmental protection – the protection of seals was internationally established by treaty in the area of the North Pacific as early as 1911, in consequence of the already advanced large-scale seal hunting in that area, while the Antarctic seals treaty dates back to 1972. These recognized and self-evident fragilities of the polar regions’ equilibriums can turn into a good starting point for developing innovative – internationally conceived and/or guaranteed – sustainable development solutions, in the general framework of the protection of common interests. 21.2 The Commercial Exploitation of Marine Mammals: An Evergreen Interconnection of Environmental and Cultural Issues Two interesting international cases dealing with the hunting of marine mammals in and near the polar regions are currently being judged: the seal products dispute before a World Trade Organization (WTO) panel and the Australia/Japan case about the protection of whales before the International Court of Justice (ICJ). These are long-standing problems in the international agenda, as witnessed also by the reference to them in the 1982 Montego Bay United Nations Convention on the Law of the Sea (UNCLOS). The intensive commercial hunting of marine mammals has been practiced for quite a long time, and the issue started being addressed by international law sources a century ago because of the risks connected with overexploitation. The treaties protecting marine mammals – and other animal species, though the emphasis is laid mainly on whales and seals owing to their special relevance for hunting activities in the polar regions – often include exemption clauses in favour of traditional hunting by indigenous peoples, in the name of subsistence and cultural rights. Traditional hunting is authorized as it is necessary for the subsistence of the populations involved – being, in fact, a condition for the protection of human rights in a specific environmental and cultural context. Besides, it is accepted also owing to its small-scale impact on animal stocks. However, the way exception clauses are conceived and formulated usually implies the mere tolerance of peculiar practices, enucleated and defined by external subjects. This ‘imposition from above’ is often challenged by the interested populations, willing to convey the real characteristics of their practices and beliefs, which can only be understood if considered as part of a comprehensive approach to their living environment. Thanks to the improvement of the situation as a consequence of the enforcement of the implementation of international regulations, some of the protected species are no longer

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Federica Mucci endangered and not all restrictive hunting measures are based, nowadays, on species survival concerns. The two aforementioned disputes arise from cultural/public moral differences as well as from concerns about fauna protection.5 21.2.1

Reference in UNCLOS

Articles 65 and 120 of UNCLOS are safeguard clauses in favour of rules – adopted by either states or international organizations – that prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in the Convention in relation to the living resources of the sea in the exclusive economic zones (EEZs) and in the high seas. It is interesting to note that, save for marine mammals, the special consideration of peculiar marine living resources in UNCLOS is limited to transboundary, highly migratory, anadromous, catadromous and sedentary species and such special attention is always due to the necessary solution of jurisdictional questions.6 In addition to the safeguard clauses, states are required to cooperate with a view to ensuring the conservation of marine mammals and, in the particular case of cetaceans, to work through the appropriate international organizations for their conservation, management 5

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The current public expectations for the protection of wild animals – not only to avert the risk of extinction of the species – are concentrated on the so-called charismatic mega-fauna (cf. K. Hossain, ‘Hunting by Indigenous Peoples of Charismatic Mega-Fauna: Does Human Rights Approach Challenge the Way Hunting by Indigenous Peoples Is Regulated?’, International Community Law Review, Vol. 10, 2008, pp. 295-318). The international protection of whales through a moratorium on commercial hunting is emblematic. While it is unquestionable that “when the moratorium becomes permanent [. . .] it is no longer definitionally a moratorium,” it may not be deemed to be “an entitlement to life” (cf. A. D’Amato & S.K. Chopra, ‘Whales: Their Emerging Right to Life’, American Journal of International Law, Vol. 85, 1991, pp. 21-62), since what is being protected is the human interest in whales. Both biodiversity and cultural diversity, as human interests, underlie the current dispute before the ICJ on the violation of the IWC moratorium on commercial whaling, especially in the Southern Ocean Whale Sanctuary, through the issue of so-called special permits for purposes of scientific research by Japan (ICJ, Whaling in the Antarctic (Australia v. Japan), Application Instituting Proceedings filed in the Registry of the Court on 31 May 2010; cf. D.R. Rothwell, ‘Australia v. Japan: JARPA II Whaling Case before the International Court of Justice’, at ). The concern is voiced not only to protect fin and humpback whales – defined by the IUCN as ‘endangered’ and ‘vulnerable’ respectively – but also to obtain that all members of the IWC “fully adhere to the word and spirit of the whaling moratorium, which is intended to protect all whale species world-wide,” as particularly focused in the aide-mèmoire annexed to Australia’s application. The latter includes a joint demarche by thirty states and the European Commission that stresses that the large numbers of whales taken under JARPA programmes “outnumber the whales killed globally by Japan for scientific research in the 31-year period prior to the entry into force of the moratorium on commercial whaling.” In fact, the alleged breach of the obligation to respect in good faith the IWC regulations derives from the difficult acceptance of the IWC moratorium due to a proclaimed different cultural approach to whaling, typical of Japanese culture, but probably only in the past and in specific regions (see J. Morikawa, Whaling in Japan. Power, Politics and Diplomacy, Columbia University Press, New York, 2009). Cf. Arts. 63, 64, 66, 67 and 68 of UNCLOS. Among marine mammals, the 1958 Geneva Conference on the law of the sea had already devoted special attention to the methods of killing whales and seals with the adoption of a resolution entitled “Humane Killing of Marine Life,” which was to “spare them suffering to the greatest extent possible.”

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21  The Last Frontier of the International Protection of Human Rights and study. The combination of a safeguard clause and a general obligation to cooperate clearly indicates that the conservation of marine mammals is conceived in UNCLOS as a global common interest/concern.7 21.2.2

From Early International Agreements Onwards

The 1911 North Pacific Fur Seal Treaty is referred to as “the first international treaty for wildlife conservation.”8 It included a special exception for aboriginal sealing, provided that it was conducted in a traditional way, with no concession to the use of modern ships or weapons and no main commercial purpose, and it was not exploited by third parties. The same restrictions, in almost the same terms, were provided for in the special exception for aboriginal whaling included in the 1931 Convention for the Regulation of Whaling.9 Exceptions allowing aboriginal hunting can also be found in subsequent international treaties for the protection of marine mammals.10 7

When the protection of common interests in Antarctica was first sought in the newborn United Nations forum, the discussion was required also on the hunting methods for the exploitation of marine mammals. As recalled by M. Jacobsson (‘Building the International Legal Framework for Antarctica’, in Berkman et al. 2011, pp. 1-15, at p. 2, who cites Nobel Peace Prize Laureate Emily Greene Balch), the Women’s International League for Peace and Freedom “favored control and administration of the uninhabited polar areas by one or two mandate commissions under the Trusteeship Council of the United Nations. Such administration was expected to result in, inter alia, equal and free access to raw materials (including to mineral resources), organized and adequate scientific research, and surveys whose results should be available to all those interested. The organization also argued for equitable arrangements regarding fishing and whaling rights, as well as prevention of “destructive methods in connection with whaling and sealing.” 8 1911 Washington Convention Respecting Measures for the Preservation and Protection of the Fur Seals in the North Pacific Ocean, TS 564 (open access to the text of the Convention is available in the IEA Database Project at ). The quotation is from US NOAA official website, at ; in fact the London 1900 Convention for the Preservation of Wild Animals, Bird and Fish in Africa (94 BFSP 715) never entered into force. The 1911 North Pacific Fur Seal Convention applied to “pelagic sealing in the waters of the North Pacific Ocean, north of the thirtieth parallel of north latitude and including the Seas of Bering, Kamchatka, Okhotsk and Japan” (see Art. 1). 9 1931 Geneva Convention for the Regulation of Whaling, 155 LNTS 349 (open access to the text in the IEA Database Project at ). If we compare Art. IV of the 1911 Seals Convention with Art. 3 of the 1931 Whales Convention, the terms referring to admissible vessels and weapons are almost literally the same. They only allow for the use of canoes (pirogues or other exclusively native craft), propelled entirely by oars (paddles) or sails and rule out the use of firearms and the possibility that the aborigines are in the employment of other persons or under contract to deliver the products of their hunt to any third person. 10 The 1946 ICRW in force – including its schedule, which fixes catch limits for aboriginal subsistence­ whaling – applies “to all waters in which whaling is prosecuted” (cf. note 1 supra). As for seals, the ­Washington 1957 Interim Convention on Conservation of North Pacific Fur Seals (314 UNTS 105), whose Art. VII was identical to Art. IV of the previous 1911 Convention, expired in 1984 and no provision for traditional sealing has been included – or requested – in the 1972 Convention for the Conservation of Antarctic Seals. However, these provisions are included in the EC Reg. 1007/2009 and specified further in the Commission Reg. 737/2010, OJ 2010 L 216/1.

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Federica Mucci Notwithstanding many difficulties, the focus is now shifting from a purely material idea of the subsistence rights of indigenous peoples to a more complex and comprehensive notion of identity/cultural rights.11 This new approach has to be backed up by democratic participatory mechanisms and – wherever possible and appropriate – by ad hoc forms of self-government, which are usually very difficult to devise and subject to sovereign decisions in each interested state.12 This is the reason why domestic and international case law is often highlighting problems in the implementation of human rights in this field, but, more often than not, cannot resort to effective judicial remedies.13 Naturally, the tongue ever turns to the aching tooth. Hence, in the specific instance of the traditional hunting exceptions of indigenous peoples within the framework of the international protection of marine mammals, in recent times the debate has regarded almost exclusively whale hunting. This is due to the strict protection decided by the International Whaling Commission and the relatively unregulated situation of Arctic seals consequent to the expiration of the 1957 North Pacific Fur Seals Convention.14 The adoption by the EU of Regulation 1007/2009 and of the subsequent ‘technical’ Regulation 737/2010 have revived the seal hunting issue. 11 As correctly underlined in doctrine, the topic of indigenous rights in international law was generally analysed referring to the possession/governance of ancestral lands and their natural resources (see R. Virzo, ‘In tema di diritti dei popoli indigeni sulle risorse naturali di interesse della comunità internazionale e sulle risorse naturali condivise fra più stati’, in A.L. Palmisano & P. Pustorino (Eds.), Atti del convegno internazionale Identità dei popoli indigeni: aspetti giuridici, antropologici e linguistici, IILA, Roma, 2008). In fact, if we consider the 1989 Geneva Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention C169, 28 ILM 1382), Part II is entirely devoted to land issues, the second paragraph of Art. 15 requires governments to maintain or establish participatory procedures, while Art. 23, which deals with subsistence economy and traditional activities, is very subdued and the obligations are diluted with the addition of the ‘whenever appropriate’ and ‘wherever possible’ formulas. In recent years, however, international law has been paying greater attention to traditional activities – and not only in reference to indigenous peoples, as in the 2003 UNESCO Convention on intangible cultural heritage. The 2006 UN Declaration on the Rights of Indigenous Peoples, an indispensable reference point that calls for renewed attention and a more comprehensive approach, has soon been followed by more specific declarations, such as the 2009 ‘circumpolar’ Inuit Declaration (see F. Borgia & P. Vargiu, ‘Inuit Declaration on Sovereignty in the Arctic’, in The Yearbook of Polar Law, 2012, pp. 189-204). 12 The Nordic Council has recently recommended to the governments of Finland, Norway and Sweden to work actively to conclude negotiations for the Nordic Sami Convention within the specified time frame (see Rec. 10/2012 of 23 March 2012, published at ). The Draft Convention (text published, with comments, at ) would, inter alia, create international obligations as to the role and functions of the already existing Sami Parliaments of the three interested states. 13 Cf. supra note 2. 14 Both events happened in the 1980s. For the international debate about indigenous whale hunting, cf. J. Sepez, ‘Treaty Rights and the Right to Culture. Native American Subsistence Issues’, US Law, Cultural Dynamics, Vol. 14, No. 2, 2002, pp. 143-159; J. Firestone & J. Lilley, ‘Aboriginal Subsistence Whaling and the Right to Practice and Revitalize Cultural Traditions and Customs’, Journal of International Wildlife Law and Policy, Vol. 8, 2005, pp. 177-219; M. Fitzmaurice, ‘Indigenous Whaling, Protection of the Environment, I­ ntergenerational Rights and Environmental Ethics’, in G. Alfredsson, T. Koivurova & N. Loukacheva (Eds.), The Yearbook of Polar Law, Vol. 2, Martinus Nijhoff, Leiden, 2010, pp. 253-277.

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21  The Last Frontier of the International Protection of Human Rights 21.2.3

The EU Ban on Seal Products Before the EU Court and a WTO Panel

The 2009 EU Regulation that bans trade in seal products in the EU territory provides for some exceptions, including one that allows the placing in the market of products from Inuit and other indigenous hunts. It harmonizes the rules across the EU as regards commercial activities concerning seal products in order to prevent disturbance of the internal market arising from the fact that several Member States have adopted or intend to adopt measures to prohibit the import and production of such products [. . .] in response to concerns of citizens and consumers about the animal welfare aspects of the killing and skinning of seals and the possible presence on the market of products obtained from animals killed and skinned in a way that causes pain, distress, fear and other forms of suffering [. . .].15 Notwithstanding the special provision for products from traditional indigenous hunts, the ban has fallen into serious disfavour by the Inuit and other indigenous communities, mainly from Canada and Greenland. As a result, they have brought action before the EU Court of Justice, complaining that the exception suffered from lack of clarity and proper implementation procedures. While the applicants were seeking the annulment of the regulation, the action has been dismissed as inadmissible, and the decision has been appealed.16 The third plea in law put forward by the applicants was formulated as follows: [. . .] the applicants claim that the contested regulation unduly limits the subsistence possibilities of the applicants, relegating their economic activities to traditional hunting methods and subsistence. They contend that, despite this direct interference with their daily way of life, they have never been heard by the Council nor by the Parliament. Moreover, the applicants submit that the defendants did not weigh the interests of the Inuit Community in surviving in the Arctic against the moral convictions of some citizens in the Union and therefore violated the Article I of Protocol No I to the European Convention of Human Rights (ECHR) and Article 8 ECHR, read in light of Articles 9 and 10 ECHR and as explained in the Court’s case law, as well as their fundamental right to be heard. [. . .]17

15 Cf. considerandum No. (5) of the Regulation. In the motivations of the Regulation, it is definitely clear that it has been adopted because of animal welfare rather than species protection concerns. 16 See Inuit Tapiriit Kanatami e.a. v. Parliament and Council (Case T-18/10), Order of the General Court of 6 September 2011, OJ 2011 C 319/20 and Appeal brought on 23 November 2011, OJ 2012 C 58/3. 17 See Action brought on 11 January 2010 – Inuit Tapiriit Kanatami e.a. v. Parliament and Council (Case T-18/10), OJ 2010 C 100/41.

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Federica Mucci It is interesting to note that the Inuit community wanted to be heard by the EU institutions before they issued the regulation, besides contending that the conditions for implementing the exemption were such as to make it impossible to comply with them. These conditions, however, are very different from those included in the previous treaties referred to above.18 They do not detail the way the hunt must be performed and merely provide a broad definition of ‘Inuit’ and ‘other indigenous communities’. Furthermore, they lay down three cumulative requirements: hunts must be conducted by Inuit or other indigenous communities that have a tradition of seal hunting in the community and in the geographical region; the products of the hunts must be at least partly used, consumed or processed within the communities according to their traditions; hunts must contribute to the subsistence of the community.19 These conditions are presumptively met if the seal product is accompanied by an attesting document, conforming to a fixed model, issued by a recognized body. In case of doubts relating to the authenticity or correctness of an attesting document, the customs authorities shall contact the competent authorities designated by the Member State concerned, who shall decide on the measures to be taken.20 The outcome of this whole series of measures is that the EU exempts the products of traditional hunts from the ban for the protection of fundamental economic and social interests of the indigenous population, leaving the control on the traditional nature of the hunt to homeland-chosen bodies recognized by competent state authorities, while requiring that these hunts not only generally “contribute to their subsistence” but also furnish products that are at least partly used by the community according to its traditions.21 The EU Regulations are now to be examined by a panel established by the WTO Dispute Settlement Body at the requests of Canada and Norway.22 18 An exception in favour of “traditional hunting by the Inuit people” was already provided in Council Directive 83/129, OJ 1983 L 91/30, concerning the importation into Member States of skins of certain seal pups and products derived therefrom. 19 Cf. Arts. 2.4 and 3.1 of Reg. 1007/2009 and Arts. 2.1 and 3.1 of Reg. 737/2010, respectively. Cf. also K. ­Hossain, ‘The EU Ban on the Import of Seal Products and the WTO Regulations: Neglected Human Rights of the Arctic Indigenous Peoples?’, Polar Record, FirstView Articles, pp. 1-13, published online by Cambridge University Press, 28 March 2012, available on CJO 2012 doi:10.1017/S0032247412000174. 20 Cf. Art. 7 of Reg. 737/2010. 21 This final requirement introduced by the Commission Reg. 737/2010 is not specifically laid down in Reg. 1007/2009. 22 At its meeting on 21 April 2011, the WTO Dispute Settlement Body decided that the same panel would examine the complaints of both Canada and Norway. The complaints refer to the EU scheme “as such,” and in doctrinal debate on the dispute the Regulation and its special exception clauses (the other two are about goods for the personal use of travellers and products of hunting nationally regulated for the sole purpose of the sustainable management of marine resources) are deemed to be probably judged as legal under WTO rules (cf. P. Fitzgerald, ‘“Morality” May Not Be Enough to Justify the EU Seal Products Ban: Animal Welfare Meets International Trade Law’, Journal of International Wildlife Law and Policy, Vol. 14, 2011, pp. 85-136, at p. 127; C. Pitschas & H. Schloemann, ‘WTO Compatibility of the EU Seal Regime: Why Public Morality Is Enough (but May Not Be Necessary)’, Beitrage zum Transnationalen Wirtschaftsrecht, Heft 118, May 2012, at p. 23 (open access internet publication at . For an opposite opinion on the dispute see M. Vellano, ‘Standard lavorativi, protezione dei lavoratori e commercio internazionale’, in L.S. Rossi (Ed.), La protezione dei diritti fondamentali. Carta dei diritti UE e standards internazionali, Editoriale Scientifica, Naples, 2011, pp. 113-143, at p. 137).

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21  The Last Frontier of the International Protection of Human Rights Since the Regulation is not motivated on the grounds of species endangerment but in relation to the welfare of animals, the most probable exception – if necessary – provided for in the GATT Agreement, under which it could be justified, is the protection of public morals. The EU Regulation, in fact, has been referred to as a ‘dual-purpose measure’, “aimed instrumentally at reducing unnecessary animal suffering, a goal that engages public morals as well as the protection of animal life and health as such.”23 In fact, “morality [. . .] is enough to justify the measure” and “the Inuit exception serves a moral purpose, namely the protection of indigenous communities, which, where in conflict, legitimately trumps – but otherwise does not question – animal welfare.”24 Nonetheless, what is really astounding is that, despite all this discussion about the ‘morality’ of the protection of indigenous communities, the interested indigenous communities find the EU Regulations – including the exception formulated therein – highly immoral: [. . .] It is bitterly ironic that the EU, which seems entirely at home with promoting massive levels of agri-business and the raising and slaughtering of animals in highly industrialized conditions, seeks to preach some kind of ­selective elevated morality to Inuit. At best this is cultural bias, although it could be described in even harsher terms. [. . .] “The exemption in the Regulation is uncertain and was adopted without the participation of Inuit, and the EU is proceeding with implementing measures, also without the participation of Inuit. [. . .] Not surprisingly, the Regulation does not reflect the reality of the Inuit commercial seal harvest, which is both humane and necessary to the survival of the Inuit.” [. . .] While the prospect of this exemption may have persuaded many EU Parliamentarians to vote for the ban, legislation was ­developed without the involvement of Canadian Inuit, and the EU continues to develop implementation measures affecting Canadian Inuit without the fair and informed participation, let alone consent, of Inuit. [. . .]25

23 And also as a “noninstrumental expression of moral opprobrium at animal cruelty, and consumer behavior that is complicit with that cruelty,” cf. R. Howse & J. Langille, ‘Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values’, New York University Public Law and Legal Theory Working Papers, Paper 316, 2011 (open access internet publication at ), at p. 412. 24 Cf. Pitschas & Schloemann 2012, at pp. 22-23. It is to be noted, though, that the authors (at p. 23) also affirm that, were the EU found in violation of WTO rules because of the Inuit and other exceptions, “it would be possible to remedy the situation by eliminating these exceptions, leaving the sales ban otherwise intact.” This conclusion is highly questionable from the human rights point of view. 25 See ITK Media Release, 13 January 2010, ‘Inuit Sue European Union (EU) to Overturn Seal Product Import Ban, Defending Inuit Rights and Upholding the Rule of Law’, at (emphasis added). Inuit Tapiriit Kanatami (ITK) is the national Inuit organization in Canada, representing four Inuit regions – Nunatsiavut (Labrador), Nunavik (northern Quebec), Nunavut and the Inuvialuit Settlement Region in the Northwest Territories.

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Federica Mucci There would be a lot to comment on the international juridical implications of this debate, from both the WTO and the human rights points of view. Focusing only on the perspective of the present chapter, the aspiration to be consulted voiced by the Inuit representatives is an illuminating – albeit not a judicially determinant – aspect. The tone of the Inuit comments allows inferring that, lacking such a consultation, not only have the procedures for the application of the exemption been inappropriately drafted, but also the nature of the Inuit commercial seal harvest has been misinterpreted. It has been considered necessary for the survival of the population without taking into account its peculiar features, hence its ‘humanity’. This is tantamount to saying that the value of cultural diversity has not been really taken into consideration. 21.3 Strict Implementation of the Precautionary Principle in the Antarctic Treaty System: New Challenges and Possible Epigones Unlike the different implications of the protection and promotion of cultural diversity, the protection of biodiversity has ‘found its place’ in international law – though it is highly problematic from several points of view. Originating mostly as an effort to protect endangered species, it is now an integral part of international environmental law, closely linked to topics such as permanent sovereignty on state territorial resources, equitable sharing of resources in common spaces and right to development. In Antarctica, owing to political and scientific reasons, the protection of the environment as a complex ecosystem has been in strictly precautionary terms – both expeditious and effective. The urgency of preventing marine pollution from vessels in ice-covered areas of both polar areas is acknowledged in Article 234 of UNCLOS, which entitles coastal states to adopt and enforce non-discriminatory laws and regulations to that effect within the limits of the EEZ. In fact, Article 234 can be viewed as a specific and explicit pronouncement of the possible extension of the coastal state jurisdiction for environment protection within the limits of the EEZ, regardless of the institution of the EEZ. Lately, this practice has been applied, outside ice-covered areas, by Italy and France in the Mediterranean Sea and is indicative of the protection of a direct coastal state interest and of a concern shared by the entire international community for the protection of the marine environment as a whole.26 As everybody knows, this common concern has evolved, within the Antarctic Treaty ­System (ATS), into a comprehensive set of international agreements for the protection of the Antarctic flora and fauna. The Antarctic Consultative Parties adopted the Agreed Measures for the Conservation of Antarctic Fauna and Flora in June 1964 and the CCAS in 1972. 26 Cf. Italian Law No. 61 of 8 February 2006 on the establishment of an ecological protection zone beyond the outer limit of the territorial sea, OJ 3 March 2006, No. 52, implemented by DPR 27 October 2011, No. 209, Regolamento recante istituzione di zone di protezione ecologica del Mediterraneo nord-occidentale, del Mar ligure e del Mar tirreno, OJ 17 December 2011, No. 293.

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21  The Last Frontier of the International Protection of Human Rights The adoption, in 1980, of the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), regulating commercial fisheries in and near the Antarctic, reflected recognition of the significance of krill in the food web and took an ‘ecosystem approach’, considering the effect of commercial fishing not only on the targeted species but also on the prey and predators of such species.27 In addition to the international treaties whose scope of application is specifically the Antarctic continent, special relevance should be attached to the work of the International Whaling Commission.28 Furthermore, considerable importance should be attached to the adoption, in 1991, of the Madrid Protocol on Environmental Protection to the Antarctic Treaty (PEPAT), which followed the conclusion of the Convention for the Regulation of Antarctic Mineral Resource Activities (CRAMRA) in 1988. The Protocol commits the parties to ensure the comprehensive protection of the Antarctic environment and dependent and associated ecosystems and designates Antarctica as a natural reserve, devoted to peace and science, prohibiting any activity relating to mineral resources, other than scientific research, for at least fifty years. In itself, the PEPAT is the most evident application of a strictly precautionary approach to a mineral exploitation of Antarctica yet to begin, but, so to say, it is just ‘the tip of the iceberg’ of the wholehearted precautionary international approach to Antarctica, already developed for the international regulation of the exploitation of the Antarctic living resources. Recently, bioprospecting has emerged as a new challenge for environmental governance in both Antarctica and the Arctic region and, surprisingly, “bioprospecting in the Arctic seems to raise many similar issues to bioprospecting in Antarctica.” In spite of the different contexts, “the impact of regulation on scientific research and territorial or sovereignty issues are two of the major issues that bioprospecting raises in both polar regions.”29 The Agreement on Trade-Related Aspects of Intellectual Property Rights, the Convention on Biological Diversity and the UNCLOS could serve as a global legal framework for bioprospecting. At any rate, the research for a specific bioprospecting regime in Antarctica – whether or not based on the CRAMRA scheme – seems expedient to avoid disrupting the ATS “fundamental ethical principles comprising peace, a freeze on territorial claims, freedom of scientific research, international cooperation, and environmental protection in the interest of mankind as a whole.”30 27 For an example of the work of the CCAMLR Commission, see D.J. Agnew, ‘The Illegal and Unregulated Fishery for Toothfish in the Southern Ocean, and the CCAMLR Catch Documentation Scheme’, Marine Policy, Vol. 24, 2000, pp. 361-374. 28 The International Convention for the Regulation of Whaling is specifically referred to by Art. VI of the CCAMLR. As for the current international dispute relating to the Southern Ocean Whale Sanctuary, see note 5 supra. 29 Cf. D. Leary, ‘Bi-polar Disorder? Is Bioprospecting an Emerging Issue for the Arctic as well as for Antarctica?’, Review of European Community and International Environmental Law, Vol. 17, No. 1, 2008, pp. 41-55. 30 Cf. A.-I. Guyomard, ‘Ethics and Bioprospecting in Antarctica’, Ethics in Science and Environmental Politics, Vol. 10, 2010, pp. 31-44. On the attitude of Antarctic scientists to the regulation of bioprospecting activities, see K.A. Hughes & P.D. Bridge, ‘Potential Impacts of Antarctic Bioprospecting and Associated Commercial Activities upon Antarctic Science and Scientists’, Ethics in Science and Environmental Politics, Vol. 10, 2010, pp. 13-18.

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Federica Mucci An international regulatory framework for the protection of the environment has now become a priority also for the Arctic, just as it has always been for Antarctica. The absence of an “overall ‘hard law’ framework or environmental governance structure” is among the most debated issues regarding the Arctic region at an international level.31 However, Antarctic solutions cannot be simply transposed to the Arctic region, and not just because of the (not ‘frozen’) sovereign presence of states. In the Arctic, environmental issues must be dealt with in a culturally diversified human inhabited context and reconciled with the necessary protection of individual human rights – or, better still, enlightened by their enhanced implementation – not to mention the protection of minorities and indigenous peoples as group entities. In fact, the adequate protection of cultural diversity in the area is a gateway to the elaboration of innovative and truly sustainable development plans.32 21.4 Final Remarks: The Arctic Participatory Approach to Ensure Representation of Cultural Diversity within the Framework of International Law for Sustainable Development Though the Arctic Council is a soft law international body, the involvement of Arctic indigenous peoples in the Arctic Council as permanent participants “is an innovative development” and “the Draft Nordic Sami Convention represents a similar development”33 in the direction of participatory processes for the full implementation of human rights and enhancement of cultural diversity as a common asset and a resource to implement sustainable development. In fact, “development of substantive and procedural rights of civil society, indigenous communities and peoples in the Arctic context including dissemination and access to information”34 is necessary to cope with old and new human rights challenges in the area, including those connected with the impact of climate change, the many unresolved issues about resources management and rights of indigenous peoples, and the requests for self-government or greater autonomy. The strictest international legal framework on participatory processes, the 1998 Aarhus Convention, is to be found in Europe and pertains to the environmental protection field.35 Studies about the importance of civil society participatory processes and relevant international practice have increased after the conclusion of the Aarhus Convention, highlighting 31 Cf. D. Leary, ‘Looking Beyond the International Polar Year: What Are the Emerging and Re-emerging Issues in International Law and Policy in the Polar Regions?’, in G. Alfredsson, T. Koivurova & D. Leary (Eds.), The Yearbook of Polar Law, Vol. 1, Martinus Nijhoff, Leiden, 2009, pp. 1-19, at p. 9. 32 Cf. L. Heinämäki, ‘Protecting the Rights of Indigenous Peoples-Promoting the Sustainability of the Global Environment’, International Community Law Review, Vol. 11, 2009, pp. 4-68. 33 Cf. Hossain 2011, p. 153. On the Draft Nordic Sami Convention, see note 12 supra. 34 Cf. Leary 2009, at p. 7. 35 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 2161 UNTS 447.

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21  The Last Frontier of the International Protection of Human Rights how public participation and transparency are essential in devising and implementing sustainable development policies and “meaningful consultation with affected communities and non-governmental organizations (NGOs) can actually reduce the political and reputational risks associated with certain projects.”36 At a global level, the Rio+20 commitments endeavour to catalyse the words of Principle 10 of the 1992 Rio Declaration into measurable objectives in the field of environmental protection.37 Recently, some international law sources have pointed to the possibility of requiring states to implement a participatory approach also for the public management of cultural diversity, perceived as a common heritage of humankind. The UNESCO 2005 Convention on the protection and promotion of the diversity of cultural expressions is an unprecedented framework for developing public/private partnerships in the cultural sector and implementing the ‘cultural dimension’ of sustainable development. The important contribution of cultural heritage for sustainable development plans and programs is underscored also in the preamble of the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage (“Considering the importance of the intangible cultural heritage as a mainspring of cultural diversity and a guarantee of sustainable development”).38 An environmentally and culturally sustainable approach to development is already in the intentions and partly – at least for environmental concerns – in the commitments of the international community. The recent international cooperation practice of the Arctic region could become a leading example in the formulation and implementation of

36 Cf. C.E. Bruch, The New “Public”: The Globalization of Public Participation, Environmental Law Institute, Washington, DC, 2002, at p. 183. One of the examples being cited is particularly relevant in view of the cultural diversity of the Arctic region. The construction of a very big nickel mine at Voisey Bay, in Canada, was held back for a year because of an injunction lodged against the project by Inuit tribespeople. An Impact and Benefit Agreement was then signed on 29 July 2002 between VBNC and the Labrador Inuit Association. The Voisey’s Bay Environmental Management Board (VBEMB) arose from the signing of the Voisey’s Bay Environmental Management Agreement between the Labrador Inuit Association; the governments of Canada and Newfoundland and Labrador; and the Innu Nation. The VBEMB is an advisory board whose purpose is to provide effective, responsible and coordinated environmental management of the Voisey’s Bay Mine and Mill (see the Nunatsiavut Government website at ). On these issues, see also M. Iovane, ‘La participation de la société civile à l’élaboration et à l’application du droit international de l’environnement’, Revue générale de droit international public, Vol. 112, 2008, pp. 465-519. 37 Cf. L. de Silva, ‘Rio+20 Text Offers Hope For Improving Governance’, at . 38 In any case, it should be noted that Art. 2 of the same Convention seems almost to question the positive link with sustainable development by conditioning the definition of intangible heritage on ‘the requirements’ of sustainable development. A Declaration on Bio-cultural Diversity has been adopted in 2010 by the participants of the International Conference on Cultural and Biological Diversity for Development (Montreal, 8-10 June 2010, text at ), which has been recalled by the Conference of Parties of the Convention on Biological Diversity (COP 10 Decision X/20) in these terms: [. . .] 16. Notes the 2010 Declaration on Bio-cultural Diversity and welcomes the joint programme of work between UNESCO and the Secretariat of the Convention on Biological Diversity, [. . .] as useful coordination mechanism to advance the implementation of the Convention and deepen

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Federica Mucci sustainable development policies through structured – though soft law – participatory procedures, guaranteeing the protection and promotion of human rights in a biologically and culturally diverse and really democratic environment.39



global awareness of the inter-linkages between cultural and biological diversity and invites Parties and other relevant stakeholders to contribute to and support the implementation of this joint programme; [. . .].

39 In addition to the cases cited above of the involvement of indigenous peoples in the Arctic Council as permanent participants and of the Draft Nordic Sami Convention, reference should also be made to the establishment and work of the Working Group of Indigenous Peoples, in the framework of the Barents Euro-Arctic Council. The Working Group has adopted an action plan for the period 2009-2012 (cf. Md. Waliul Hasanat, ‘Cooperation in the Barents Euro-Arctic Region in the Light of International Law’, in Alfredsson et al. 2010, at p. 298. The action plan is available at ).

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22

The 2010 Treaty between Norway and the Russian Federation on Maritime Delimitations: Considerations about the Application of the Law of the Sea

Aldo Amirante* 22.1 Global Warming and the Arctic Meltdown: The Changing Face of the High North Because of climate change and the effect of global warming, the ice cap of the Arctic is melting. Worries and doubts about the global environment are discussed all over the world, but, at the same time, the melting ice uncovers new opportunities in the Arctic area. Ice in the Arctic Ocean is melting much more quickly than most people appreciate; the Arctic is the fastest warming region on earth.1 In summer of 2008, the area covered by ice floes shrank by more than one million square miles, reducing the Arctic ice cap to only half the size it was 50 years ago.2 Environmental damage is connected to the loss of permafrost and to the delay in the sea of the biggest fresh water resource in the world. The rising sea level risks thousands of kilometres of the current coastline being covered; and these are only some aspects. The global impact of the Arctic meltdown is still unknown.3 In addition to environmental transformation, the Arctic meltdown opens the way to ­Arctic resources and Arctic sea spaces, enhancing interest in the area and affecting the geopolitics of the region. In the past few years, for the first time in history, Arctic passages around Eurasia and North America have been opened. The sea route between Rotterdam and Yokohama * 1

Assistant Professor of International law at Second University of Naples (Naples). S.G. Borgerson, ‘Arctic Meltdown. The Economic and Security Implications of Global Warming’, Foreign Affairs, Vol. 87, No. 73, 2008, p. 1. 2 S.G. Borgerson, ‘The Global Implications of a Warming Arctic’, statement before the Committee on Foreign Relations, U.S. Senate Washington, DC, 5 May 2009, available at . 3 “[…] from huge ice shelves breaking free to complex environmental dynamics that scientists do not fully understand, the polar ice cap is disappearing […]” Borgerson 2008, p. 1. “The results of global warming in the Arctic are far more dramatic than elsewhere due to the sharper angle at which the sun's rays strike the polar region during summer and because the retreating sea ice is turning into open water, which absorbs far more solar radiation. This dynamic is creating a vicious melting cycle known as the ice-albedo feedback loop” Borgerson 2009, p. 65.

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Aldo Amirante through the Suez Canal is currently 11,200 nautical miles. The same journey through the north is reduced to only 6,500 nautical miles. The journey from Seattle to Rotterdam by the northern route is reduced by 2,000 nautical miles and is much less expensive.4 States and private companies are interested in investigating the Arctic Ocean for fisheries and its subsoil.5 Scientists estimate that the Arctic contains conventional oil and gas resources totalling approximately 90 billion barrels of oil, 1,669 trillion cubic feet of natural gas and 44 billion barrels of natural gas liquids.6 This could amount to “just over a fifth of the world’s undiscovered, recoverable oil and natural-gas resources.”7 The geopolitical situation in the Arctic is characterized by the feature that the Arctic Ocean is the only one in the world that has only five states that surround it: Canada, ­Denmark (through Greenland, which is an autonomous entity), Norway, the Russian Federation and the United States, commonly referred to as the Arctic Five.8 The combination of new shipping routes, oil and gas resources, reserves of fishing and an undefined map of maritime boundaries makes it a potentially unstable situation for the interests at stake. In their reciprocal bilateral relations, the Arctic Five have at least one point of disagreement. In the next few years there will be an urge to define the overlapping claims of the Arctic Five and solve their respective confrontational positions.9 It is also worth noting that the interested governments have issued public commitments to behave peacefully in the Arctic region, and the peaceful way is working with respect for existing international law. However, Russia is showing increasingly assertive behaviour with regard to military and economic expansion in the region and has resumed long-range bomber flights and naval patrols in the Arctic, assuming a more aggressive foreign policy10; the Canadian Prime

4

“Taking into account canal fees, fuel costs, and other variables that determine freight rates, these shortcuts could cut the cost of a single voyage by a large container ship by as much as 20 percent – from approximately $17.5 million to $14 million – saving, the shipping industry billions of dollars a year” Borgerson 2009, p. 65. 5 I. Caracciolo, ‘National Claims in the Arctic Ocean. The Case of the Svalbard Islands Maritime Areas’, La Comunità internazionale, No. 3, 2009, p. 3. Experts also highlight the presence of large amounts of tin, manganese and nickel nodules, along with platinum, gold, silver, diamonds, zinc, copper and lead. See United States Geological Survey, ‘Circum-Arctic Resource Appraisal: Estimates of Undiscovered Oil and Gas North of the Arctic Circle’, USGS Fact Sheet 2008-3049, 2008, available at . 6 United States Geological Survey 2008. The Russian Ministry of Natural Resources calculates that the territory claimed by Moscow could contain as much as 586 billion barrels of oil – although these deposits are unproven. By comparison, all of Saudi Arabia's current proven oil reserves – which admittedly exclude unexplored and speculative resources – amount to only 260 billion barrels: See Borgerson 2009, p. 65. 7 S. Power, ‘Bush Moves to Update U.S. Policy in Arctic Region’, Wall Street Journal, 8 January 2009. 8 T. Neumann, ‘Norway and Russia Agree on Maritime Boundary in the Barents Sea and the Arctic Ocean’, ASIL Insight, Vol. 14, No. 34, 2010, p. 2. 9 See Borgerson 2009, p. 1: “determining whether the Arctic's long-term future will be one of international harmony and the rule of law, or of a Hobbesian free-for-all with dangerous potential for conflict.” 10 Russia has resumed long-range bomber flights and naval patrols in the Arctic. See Borgerson 2008, p. 65.

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22  The 2010 Treaty between Norway and the Russian Federation Minister pledged to defend Canadian Arctic sovereignty when, in 2008, Canada conducted its largest military exercise ever in the region; the European Union has a new A ­ rctic policy and has announced plans for building its own icebreaker; North Atlantic Treaty Organization (NATO) held a conference in Iceland about its future mission in the Arctic.11 Peaceful attempts to settle Arctic governance were roughly divided into two different points of view: States and political doctrines that advocated the necessity of a new Arctic treaty, and the opposite position of those who maintained that all the questions could be resolved within the framework of existing international law conventions and customary rules, above all the UN Convention of the Law of the Sea.12 Despite the feeling of a new gold rush, and the opposing claims, the Arctic Five agreed on the so-called Ilulissat Declaration concerning Arctic governance.13 The declaration sweeps away the intent of those who were interested in a new Arctic treaty, which was noted as futile, and affirms that the Arctic states are able to deal with the potential challenges of the Arctic Ocean. It recognizes the legal framework already applied to the Arctic Ocean, stating that the framework consists of the International Law of the Sea, the rights and obligations it provides, and that the disputes about overlapping claims can be resolved by the existing rules of the Law of the Sea, with the perspective of cooperation between the Arctic Five.14 22.2 The Border Dispute in the Barents Sea In the context described of growing interests in the Arctic, balanced by the need to limit environmental damage, the instances of enlargement of territorial sovereignty over marine areas, according to the predictions of the Montego Bay Convention on the Law of the Sea, have multiplied. Considering the particular geography of the Arctic area, with all the coasts converging, it is obvious that conflicting positions are created with overlapping claims to maritime areas. This has created both bilateral and multilateral conflicts between states with adjacent or facing shores. One example is the quarrel between the USA and Canada regarding the Northwest Route waters, which Canada considers to be internal waters, whereas the International Community, especially the USA, considers them to be only a part of the Canadian exclusive economic zone (EEZ) and continental shelf.15 Norway and Denmark have only established 11 Borgerson 2008, p. 65. 12 For a review of the question, see M.A. Becker, ‘Russia and the Arctic: Opportunities for Engagement Within the Existing Legal Framework’, American University International Law Review, Vol. 25, 2010, p. 225. 13 Ilulissat Declaration has been adopted in 28 May 2008, during the Arctic Ocean Conference. Text of the Declaration is available at . 14 See Caracciolo 2009, p. 3; Ilulissat Declaration 2008 says: “[…] an extensive international legal framework applies to the Arctic Ocean […]” and that “We remain committed to this legal framework and to the orderly settlement of any possible overlapping claims.” 15 L. Sevunts, ‘As Arctic Ice Melts, Canada Reasserts Sovereignty Over Its “Northwest Passage”’, Washington Times, October 2005, available at .

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Aldo Amirante their maritime borders with an International Court of Justice (ICJ) judgment with regard to the sovereignty functionally generated by the island of Jan Mayen. Russia has asked to apply the principle of the sectors for the distribution of Polo, and also claims that the socalled Lomonosov Ridge, an underwater hill crossing the North Pole, is an extension of its continental shelf, while Canada and Denmark are also claiming Lomonosov Ridge as part of their continental shelves. Norway intends to achieve full sovereignty over the EEZ and on the continental shelf that originates from Svalbard, whose regime is governed by the Treaty of Paris of 1920, and which implies an equally shared use (an equitable regime), as well as being interested in exploiting the continental shelf in the so-called Grey Area, an area of 175,000 km2 in the Barents Sea, disputed with Russia.16 This dispute, together with all the issues pertaining to borders in the Barents Sea, was resolved with an agreement signed in Murmansk in September 2010 between the Russian Federation and Norway, and this treaty, ratified by the parliaments of the two countries, came into force on 7 July 2011, ending about 44 years of wrangling. The history of the delimitation of the Barents Sea is rooted in the Cold War, which started in 1957, when the USSR and Norway agreed to a partial maritime boundary in the territorial waters of the Varanger Fjord.17 The negotiations concerned mainly the continental shelf, as both countries were parties to the 1958 Geneva Convention on the Continental Shelf. A few years later, in the late 1960s, the same powers could not agree on the boundary of the continental shelf in the Barents Sea. The dispute seemed unsolvable because it was based on a different way of considering the starting point for negotiations: while Norway requested that the border be defined on the midline rather than the respective baselines, the Soviet Union intended to apply the theory of sectors and then calculate the line following the line of the meridian, which ideally joins the Russian territory to the North Pole, although diverted at Svalbard Box.18 Since the Barents Sea is an important fishing area for both states, in January 1978, the two governments agreed on a temporary fishing arrangement in the ‘Grey Zone’, an area of 19,475 square miles, with 12,070 square miles of overlap, 6,588 square miles of undisputed Norwegian EEZ and 817 square miles of undisputed

16 Treaty concerning Spitsbergen signed in Paris on 9 February 1920. 17 The Agreement concerning the sea frontier between Norway and the USSR in the Varangerfjord of 15 ­February 1957. A new Agreement of 11 July 2007 tracing the delimitation line between the Russian Federation and the Kingdom of Norway in the Varangerfjord area, including EEZ, continental shelf and other maritime zone established in accordance with the international legislation. see Ø. Jensen, ‘Current Legal Developments, The Barents Sea: Treaty Between Norway and the Russian Federation Concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean’, International Journal of Marine and Coastal Law, Vol. 26, No. 1, 2011, p. 152, and notes. The new agreement updates and clarifies certain points established in the 1957 agreement. It also determines a delimitation line for the territorial sea, in the Varangerfjord. 18 Jensen 2011, p. 152.

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22  The 2010 Treaty between Norway and the Russian Federation Soviet Union EEZ. Inside the Grey Zone, Norway and Russia each had jurisdiction over their own vessels. In 1977, the negotiations became more difficult with the establishment of a 200-­nautical-mile Norwegian EEZ and a 200-nautical-mile Soviet Fishery Zone.19 The geographical scope of these zones is not completely identical to the states’ continental shelf claims in the Barents Sea. The so-called ‘Loop Hole’ in the middle of the Barents Sea covers an area of some 62,400 km2 of high seas that is completely surrounded by the states’ 200-nautical-mile zones. The parties regulated foreign fishing activities with a provisional fishing arrangement in 1978, called the Grey Zone Agreement, which is still in force.20 Once the Convention of Montego Bay, which introduced the institution of the exclusive economic zone, came into force, the objective of the negotiations became to establish a single boundary for the EEZ and for continental shelf areas.21 In April 2010 Russia and Norway announced that they had reached an agreement for the determination of the border in the Barents Sea, an agreement that was signed on 16 ­September 2010, and, following its ratifications, came into force in July 2011. The Norwegian Prime Minister has sought to emphasize that the parties have reached a solution that is based on modern principles of international law, and in particular on the Montego Bay Convention, hence rejecting the idea of a specific treaty for the Arctic Ocean.22 The Russian Prime Minister declared that the treaty “fully complies with the norms and principles of international law.”23 In addition, despite those who see the Arctic as a place of potential tensions, the treaty addressed the issue of sharing sea borders from a perspective of cooperation in the ­exploitation of resources across the borders. The parties had an all-inclusive attitude during the negotiations, during which other issues such as fishing and oil exploitation were also discussed, in addition to issues relating to the boundary line. 22.3 The Boundary Drawn The treaty consists of seven articles and two annexes, one for fishing and one for the exploitation of trans-boundary deposits, and provides a map of the delimitation of 19 Royal Decree of 23 May 1977. 20 Neumann 2010, p. 2. 21 Jensen 2011, p. 154: “The overriding aim of the Parties might have been to settle on a multi-functional boundary harmonizing the exercise of jurisdiction over the water column and the seabed areas on both sides.” 22 Press release of 15 September 2010, ‘Treaty on Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean Signed Today’, available at . 23 MFA Information and Press Department ‘Comment in Relation to the Signing of a Russian Norwegian Treaty on Maritime Delimitation’, available at .

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Aldo Amirante the border, connecting the geodetic points set out in Article 1, which states that the boundary is defined by geodetic line connections. The border is multifunctional; it applies to the EEZ and the continental shelf.24 The southernmost point of the boundary corresponds to the northernmost point of the agreement between Norway and Russia on the demarcation of the maritime area Varangerfjord, on the demarcation of the territorial waters of the two States in the Fjord.25 The terminal point of the delimitation line is the easternmost point of the outer limit of the continental shelf of Norway and the westernmost point of the outer limit of the continental shelf of the Russian Federation (Map 1).26 The parties declare that the line respects the provision of Article 76 and Annex II of the UN Convention on the Law of the Sea (UNCLOS). The line drawn connecting geodetic points establishes a rough partition of the disputed area, but the treaty’s text does not show how the result was arrived at, and consequently it poses the question of whether the borderline drawn is a modification of a median line (as the Norwegian government states), or a sector line modified (according to the Russian authorities).27 The Joint Statement, released in April 2010 after the agreement was reached, states that the delimitation line was derived on the basis of “international law in order to achieve an equitable solution.”28 From Map 2, it is possible to notice that the borderline drawn seems to be a median line of Norway claim and the sector line claimed by USSR, with no consideration for 200-­nautical-mile limits of EEZ. 22.4 Determination of the Boundary Line The rules on the determination of sea boundaries are contained in the Montego Bay Convention (Arts. 74 and 83), and international courts have developed specific ways of approaching issues of maritime boundaries.29 See Map 1. Jensen 2011, p. 152. Art. 1 Barents Treaty. T. Henriksen & G. Ulfstein, ‘Maritime Delimitation in the Arctic: The Barents Sea Treaty’, Ocean Development & International Law, Vol. 42, No. 1, 2011, p. 7. 28 ‘Joint Statement on Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean’, 27 April 2010, available at . 29 Y. Tanaka, ‘Reflections on Arctic Maritime Delimitations: A Comparative Analysis Between the Case Law and State Practice’, Nordic Journal of International Law, Vol. 80, 2011, pp. 470 et seq. Rules are defined in Arts. 74 and 75 for the EEZ delimitation, in Arts. 83 and 84 for continental shelf. 24 25 26 27

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22  The 2010 Treaty between Norway and the Russian Federation Map 1.

Solid red line: delimitation line between the coordinates in the 2010 treaty.30



30 Norway Government site, at .

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Aldo Amirante Map 2.

Chart showing all the possible delimitations in Barents Sea.31

In the 2006 case Barbados v. Trinidad and Tobago, the Arbitration Court, choosing the applicable rules, stated: in a matter that has so significantly evolved over the last 60 years, customary law also has a particular role that, together with judicial and arbitral decisions, helps to shape the considerations that apply to any process of delimitation.32 31 Source: Jensen 2011, p. 153. 32 Arbitration Between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf Between Them, 11 April 2006, Reports of International Arbitral Awards, Vol. 27, 2006, pp. 147-251, para. 223, available at (Accessed June 2010).

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22  The 2010 Treaty between Norway and the Russian Federation It is possible to divide the methodologies and proceedings used to determine sea boundaries into three phases.33 The first one involves the identification of a line of equidistance, calculated starting from the baselines of the coasts concerned, followed by the determination of “relevant circumstances,” according to which adjustments shall be made to the equidistance line. The concept of relevant circumstances, provided for by customary law, and special circumstances, provided for by the Law of Treaties, the UNCLOS and the Convention on the Continental Shelf, have progressively intertwined.34 The expansion of the consideration given to relevant circumstances is to avoid the equidistance line being unfair, unjust or outside the reality of the actual conditions of application of the rule.35 In the case cited, Barbados v. Trinidad and Tobago, it was noted that the relevant circumstances are increasingly linked to geographical considerations and not to the exploitation of resources. Resources have been a relevant circumstance in few other legal cases.36 The third phase was used in the Romania v. Ukraine case, and imposes an equitable judgment on the effects of the demarcation obtained with the first phase, wherever the boundary line previously obtained brings a “marked disproportion between the ratio of the respective lengths and the coastal relationship between the relevant maritime areas of each state” in order to correct distorting effects.37 The relevant circumstances can be split into geographical and non-geographical circumstances. The presence of islands can be a significant factor in the geographical areas where small islands shall not be taken into account or do not have full effect, because it would have a ‘disproportionate effect on the boundary line’. Relevant geographic circumstances may not include economic factors. The International Court rejected the disparity of wealth among the states as relevant circumstance. Courts and arbitration tribunals have been loath to consider the existence and location of natural resources in areas as exceptional circumstances. However, there are precedents, such as the island of Jan Mayen, in which the International Court has considered access to the fisheries of Capelin as a relevant circumstance.38 33 Tanaka 2011, p. 462. 34 Henriksen & Ulfstein 2011, n. 33. See also Barbados v. Trinidad and Tobago case, cpv. 265; and Judgment of 16 March 2001, Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, 2001 ICJ Rep.111, cpv. 231. 35 “[T]o verify that the provisional equidistance line, is not, in light of the particular circumstances of the case, perceived as inequitable.” Judgment of the 3 February 2009, Case Concerning Maritime Delimitation in The Black Sea (Romania v. Ukraine), 2009 ICJ, para. 155, available at (Accessed June 2010). 36 Barbados v. Trinidad and Tobago, cpv. 228. See Tanaka 2011, p. 472. 37 Henriksen & Ulfstein 2011, p. 6. 38 Maritime Delimitation in the Area Between Greenland and Jan Mayen, ICJ Judgment, 1993 ICJ Rep., paras. 72-76.

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Aldo Amirante Another circumstance that is not strictly geographical but may be relevant is safety, but this is unlikely to be significant when the areas of contention are considerably distant from the coasts of the parties. Although the Joint Declaration of April 2010 includes some references to specific standards or normative statements that have been developed by international arbitral courts, the only relevant factor mentioned is “the effect of major disparities in respective coastal lengths.”39 Neither the median line nor the lines of equidistance or area are mentioned in the treaty or in the communications that accompanied the agreement. Both sides claim to have taken into account the progress made during the long negotiations between the parties as well as international law.40 The use of the term ‘relevant factors’ rather than the known concepts of ‘relevant or special circumstances’ may suggest that the demarcation process was different from that used in the past by the courts. Map 2 shows the bounding coordinates referred to in Article 1, paragraph 3, of the treaty. On examination of the map and the calculation of divided areas it appears that the guideline of the delimitation was a “line that divides the overall disputed area in two parts of approximately the same size,”41 as recommended by the negotiating delegations, so the disputed area (between the median line and the sector line) is now divided into two parts of approximately the same size. Neither in the treaty nor in the following declarations is any of the information provided that would be necessary to identify what are the further relevant circumstances used. Access to natural resources does not seem to be a relevant circumstance. In the preamble of the treaty, as well as in the Joint Statement, there is a reference to the economic importance of marine biological resources for Norway and Russia and their coastal communities, as well as their historical exploitation by fishermen of both countries. It is nevertheless true that a rapid division of natural resources may have been the one and only relevant circumstance considered. It is a compromise solution. 22.5 Cooperation in Fisheries and for the Exploitation of Mineral Resources Articles 4 and 5 and the two annexes address economic cooperation between Norway and the Russian Federation, for fisheries and subsoil exploitation in the Barents Sea.

39 “They recommend a line that divides the overall disputed area in two parts of approximately the same size,” Joint Statement 2010, p. 2. 40 Joint Statement 2010, p. 2. 41 Joint Statement 2010, p. 2.

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22  The 2010 Treaty between Norway and the Russian Federation The first effect of the treaty is that the Grey Zone determined in the Agreement of 1978 is now divided into two parts, almost equally. In the Grey Zone each state had jurisdiction of its own vessels. Now the area to the left or right of the boundary is under the jurisdiction of one state. Article 1 of Annex I states that the 1975 Agreement between Norway and the Soviet Union on cooperation in the fisheries sector and the 1976 Agreement between Norway and the USSR concerning the mutual relations in the field of fisheries will remain in place for fifteen years after the Treaty comes into effect. At the end of 152 years, the agreements may be extended for periods of 6 years at a time. The total allowable catch, quotas and other measures of reciprocal regulation of fishing activities continue to be negotiated by the Joint Russian–Norwegian Commission for Fisheries. As stated in point 8 of the preamble of the Treaty, Norway and Russia substantially agreed to continue the traditional collaboration in fishing in the Barents Sea. Provisions on cooperation in Annex 2 also address the exploitation of possible oil and gas deposits straddling the maritime border. If these deposits are located on the continental shelf of one of the parties, and the other party believes that the deposit extends into its continental shelf, it can inform the first party with the reasons for its opinion on the basis of geophysical and/or geological data.42 The amount of the deposits and whether the discovery can be used as a unit are to be established in consultations and negotiations. Both parties shall take measures to ensure that all relevant information is available for negotiation. Furthermore, if it can be shown that the deposits on the continental shelf extend into both sides, and deposits can be exploited from the deck of one of the parties – or could affect the ability of the other party to take advantage of deposits on its own shelf – the treaty provides that Annex II, which governs a model “Unitisation Agreement” that the parties should conclude. It is an agreement regulating the exploitation of oil and gas reserves as a unit, with the distribution of deposits between the parties. Thus, the exploitation of deposits in question can only start as expected from a “Unitisation Agreement” (see Art. 5 of the treaty). Annex II includes provisions to resolve disputes between the parties too. Such provisions are not a new practice, and are present in the other boundary agreements signed by Norway, such as the Agreement of 1965 between Norway and the United Kingdom on delimitation of the continental shelf.43

42 Jensen 2011, p. 156. 43 Agreement Between the United Kingdom and Norway Relating to the Delimitation of the Continental Shelf Between the Two Countries, signed at London on 10 March 1965, in D. Freestone & T. Ijlstra, The North Sea: Basic Legal Documents on Regional Environmental Co-Operation, Kluwer Academic, Dordrecht, 1991, p. 368.

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Aldo Amirante 22.6 Critical Elements of the Treaty: The Delimitation of the Shelf over 200 Miles Russia and Norway have provided for the boundary within 200 nautical miles from the continental coasts and islands, Svalbard for Norway, Novaya Zemlya and Franz Joseph Island for Russia. These limits apply to both the EEZ and the continental shelf. However, the boundary between the Norwegian continental shelf and the Russian one resulting from the agreement extends beyond 200 nautical miles from their coasts to the north. Pursuant to Article 76 of UNCLOS, the continental shelf beyond 200 miles must be subject to review by the United Nations Commission on the Limits of the Continental Shelf (UNCLCS), which assesses the effectiveness of the continuity of the platform beyond 200 miles on the basis of the evidence submitted by the states involved. Where the Commission makes reliefs or recommendations, states must comply before submitting new evidence to the Commission, or may, complying with the Commission request, declare the extent of the continental shelf. In the case of the northern border of the Barents Sea, the Commission examining the request of Norway concluded that the seabed beyond 200 miles in the Barents Sea is, for Norway, within the outer limits of the continental shelf, in accordance with Article 76 of UNCLOS.44 However, the northern boundary drawn by the treaty stops beyond 200 miles to the north, as Russia had not yet defined its continental shelf beyond 200 miles, because its submission to the UNCLCS in 2002 received a series of recommendations that did not allow the adoption.45 Therefore, the Russian border is actually purely hypothetical, although in the images broadcast by Norway, attached to the request for an extension of the continental shelf, the continental shelf seems to go beyond deeply to the north, beyond the Norwegian continental shelf limit. However, the boundary stops at the northern limit of the Norwegian continental shelf, beyond 200 miles from the Russian coast. The delimitation between Norway and Russia is added to the small number of bilateral agreements regarding the continental shelf beyond 200 miles. However, even from that point of view, the treaty does not reveal any information about the relevant circumstances that influenced the determination of the boundary, not even for the boundary beyond

44 See UN Commission on the Limits of the Continental Shelf, ‘Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Norway in Respect of Areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea on 27 November 2006’, adopted by the Commission on 27 March 2009, with amendments, pp. 15-16, available at (Accessed June 2010), p. 11. 45 Henriksen & Ulfstein 2011, p. 6.

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22  The 2010 Treaty between Norway and the Russian Federation Map 3.

Norway’s original submission. Map shows the locations of the Foot of Slope (FOS) points (red and yellow spheres; yellow represents critical FOS points) and Article 76 formulae points.46

200 miles. These circumstances may be relevant to other processes about the continental shelf in the Arctic and elsewhere. 22.7 Treaty’s Consequences Related to the Status of Marine Areas of the Svalbard Islands A maritime delimitation agreement is binding only on the parties, but the effects can also extend to third states, especially with regard to jurisdiction. The Barents treaty raises a number of issues related to sovereignty arising from the islands of Svalbard. With regard to the Svalbard Box, it is known that Norwegian sovereignty over the Svalbard archipelago comes from the Treaty of Paris of 1920, which grants full sovereignty to Norway with the restriction that all states that are parties to the Treaty are entitled to use, in conditions of equality, the resources of the islands and their territorial waters.47 46 Source: Continental Shelf Submission of Norway – Executive Summary (2006). 47 Caracciolo 2009, pp. 3-4; D.H. Anderson, ‘The Status Under International Law of the Maritime Areas Around Svalbard’, Ocean Development & International Law, Vol. 40, 2009, pp. 373-374.

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Aldo Amirante Norway is still claiming full sovereignty over the maritime areas, arguing that the restrictions of the Paris Treaty are limited only to land and territorial waters.48 However, widespread and authoritative doctrine has refuted this theory, which is not supported by any other state party to the agreement, demonstrating that the correct application of international law provides that limitations on sovereignty should be extended to the EEZ and the continental shelf.49 The issue is far from resolved, but this treaty, if not challenged, might be an element favourable to the position of Norway. The delimitation treaty does not provide any reference to the archipelago of Svalbard; however, with regard to the delimitation of the EEZ and of the continental shelf deriving from the coast of Svalbard, the boundary is drawn within 200 nautical miles from the Svalbard baselines.50 Such demarcation therefore influences, in some way, the rights of third countries under the Treaty of Paris of 1920. While it is true that under the Spitsbergen Treaty, Norway enjoys full sovereignty, it is guaranteed to ensure an “equitable regime” that grants exploitation of resource to all states that are parties. Norway had sovereignty to define the limits and boundaries of the continental shelf and to define the boundaries of disputed areas within 200 miles from coasts, but the opposite coast is over 400 nautical miles away.51 The boundary sacrifices part of the Svalbard Fisheries Zone for the benefit of Russia. Acting unilaterally, without prior discussion of the states that were parties to the treaty, Norway stated its exclusive competence. “The equitable regime” considered in the Spitsbergen Treaty extends to the exploitation of fishery resources and those of the subsoil. For the purposes of the Spitsbergen Treaty, a reduction of the EEZ and the continental shelf around Svalbards subtracts marine areas subject to the special regime in the benefit of Russia only, with an agreement between only Norway and the Russian Federation, and does not respect the rights of the other states parties. The 2010 Agreement might represent a milestone in the dispute about the applicability of the Svalbard equitable regime to the continental shelf and EEZ.52 In fact, the agreement allows Norway to establish and manage the Svalbard maritime boundaries. Equally, the 2006 Norwegian–Danish Agreement on the delimitation of 48 See the official position of Foreign Affairs Minister on its website at . 49 Caracciolo 2009, pp. 15 et seq.; Anderson 2009, pp. 380-381. 50 See Map 2. 51 Vylegjanin and Zilanov argued that the Spitsbergen Treaty does not provide grounds for the establishment by Norway of a territorial sea or fisheries protection zone around Svalbard and that Norway is not entitled to change the boundaries in the Treaty. A.N. Vylegjanin & V.K. Zilanov, Spitsbergen: Legal Regime of Adjacent Marine Areas (trans. W.E. Butler), Eleven International Publishing, The Hague, 2007, p. 83. 52 R. Churchill & G. Ulfstein, ‘The Disputed Maritime Zones Around Svalbard’, in M.H. Nordquist, J.N. Moore & T.M. Heidar (Eds.), Changes in the Arctic Environment and the Law of the Sea, Martinus Nijhoff, Boston, 2010, pp. 551–593; T. Pedersen & T. Henriksen, ‘Svalbard's Maritime Zones: The End of Legal Uncertainty?’, International Journal of Marine and Coastal Law, Vol. 24, 2009, p. 141.

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22  The 2010 Treaty between Norway and the Russian Federation the Svalbard–Greenland maritime boundary authorizes Norway to define the EEZ and continental shelf boundaries originating from Svalbard’s coasts. With the conclusion of the 2010 Agreement, Norway and Russia have demonstrated their intention to resolve the outstanding issues that may be an obstacle to the economic development of the region. However, Russia is not the only state in disagreement with the interpretation of the treaty on Norwegian Svalbard, but at the end of 1980 the moratorium on the exploitation of hydrocarbons ended the urgency of the matter.53 With regard to the EEZ, the provision that Norway is authorized to protect the environment and fishery resources might offer more chances to Norway’s position (not coincidentally, Norway, in place of the EEZ, established a Fishery Protection Zone). With regard to the continental shelf and the exploitation of the subsoil, Norway’s position has been to consider the platform of Svalbard as an extension of its continental shelf, though the Commission on the Limits of the Continental Shelf considers that the continental shelf in the Barents Sea constitutes a submerged prolongation of the masses of the mainland of Norway and Svalbard and supported the “legal entitlement of Norway to delineate continental shelf beyond its 200 M limit in this area.”54 Norway, contracting Svalbard’s borders, and the cooperation in fisheries and exploitation of natural resources with neighbouring states (albeit also parties to the agreement in Paris), is applying the principle of full sovereignty acknowledged by the Treaty of Paris, but without entering into the management of marine areas beyond territorial waters. So it is imposing, de facto, its own position, rather than what the correct application and interpretation of the rules of international law require. The sea boundary with Russia could probably contribute to the consolidation of requests or be established by Norway on the basis of Svalbard. However, the two parties have formally reserved their rights by inserting a clause in the treaty (Art. 6) to ensure that their rights and obligations under the multilateral treaties are not affected by the agreement. This ambiguous formula does not address or solve the problem of the application of the equitable regime in the EEZ or the continental shelf of Svalbard. 22.8 The Special Area The treaty contains a specific provision for the area east of the line of sea boundary and within 200 nautical miles from the baselines of Norway, but beyond 200 nautical miles from the baseline of the Russian Federation.

53 Neumann 2010, p. 3. 54 UN Commission on the Limits of the Continental Shelf, Summary, para. 26, available at .

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Aldo Amirante According to Article 3, the maritime border of the Russian EEZ would extend, in some sections highlighted by Map 2, more than 200 miles from the coast in an area called the “Special Area”. In this area, Norway is excluded from the exercise of jurisdiction, because this Special Area is located beyond the sea border. Is it legitimate to exercise jurisdiction of Russia, which would apply to an area beyond 200 miles from the baselines, in contrast to and outside the provisions of UNCLOS? Russia should be excluded from the right to exercise the powers normally associated with the EEZ because this Special Area is more than 200 nautical miles from its coast. Instead, Article 3 of the treaty provides that Norway consents to Russia enjoying sovereign rights and jurisdiction over the Special Area, a part of the maritime area that only Norway would be entitled to declare as EEZ and exercise the related jurisdiction. The parties have agreed to transfer the jurisdiction of the state entitled to exercise it, to the state that, according to UNCLOS, is not entitled to exercise it. The exercise of jurisdiction in the Special Area arises from an agreement between the parties, and it is expressly stated that this does not imply any formal extension of the economic zone of Russia. Again, Russia has the obligation to take the necessary measures to ensure that any exercise of sovereign rights or jurisdiction in the Special Area must be characterized in its laws, regulations and statutes. Although the treaty states that “such exercise of sovereign rights or jurisdiction derives from the agreement of the Parties and does not constitute an extension of (Russian) exclusive economic zone,” with a view to the principle of effectiveness, this assignment is, to all intents and purposes, a transfer of a part of the Norwegian EEZ to Russia, a transfer of sovereignty for valuable consideration of a marine area subjected to functional sovereignty of the coastal state (according to Art. 58 UNCLOS). The designation of this Special Area raised legal issues concerning the relationship between the rights to the continental shelf and the EEZ and the rules applicable to the delimitation of maritime areas within and beyond 200 nautical miles. UNCLOS recognizes the right of coastal states to declare their EEZ and to exercise their rights, but if a state, as a result of an agreement, renounces a part of its EEZ, can it transfer it to another state?55 Without doubt, it is possible to transfer entire land territories over which sovereignty is traditionally exercised, and the sale can take place either as a purchase or as compensation for damages, or for other reasons, such as the choice of

55 For an overview on EEZ and continental shelf: A. Del Vecchio, Zona economica esclusiva e Stati costieri, Le Monnier, Firenze, 1984; D. Pharand & U. Leanza, Plateau Continental Et la Zone Économique Exclusive, Martinus Nijhoff, Boston, 1993; R.R. Churchill & A. Vaughan Lowe, The Law of the Sea, Manchester University Press, Manchester, 1988, pp. 133-152.

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22  The 2010 Treaty between Norway and the Russian Federation the citizens. There are many historical precedents, such as the purchases of Alaska and Louisiana, the cession of Nice and Savoy, etc.56 However, functional sovereignty over the EEZ and on the continental shelf is a relatively new institution, and comes from a legal convention that defines the constituent elements, leaving no room for doubt of interpretation of customary law. So to provide an answer we need to ask, what are the characteristics of the exercise of jurisdiction in an EEZ? Sovereignty over marine functional areas is not derived from a recognized effective exercise of sovereignty itself, but two legal requirements are considered essential, established by UNCLOS: sovereignty over the coast and the declaration of an extension of the EEZ by the coastal state. The EEZ cannot be considered effective in the absence of sovereignty on the coast that faces the EEZ. This is also confirmed by the relevant rights of landlocked states on coastal fishing quantities in excess of the needs of the coastal state and by the process of negotiation in which such requirements are arrived at.57 It seems, therefore, that sovereign rights are directly linked to the coast, and not an independent right of the state. Article 59 of the Convention of Montego Bay, as well as establishing the requirements for a declaration of the EEZ, also rules the conflicts of interest concerning the EEZ can only arise between the coastal state and another one, not between the state having jurisdiction and others. Clearly, within the terms of UNCLOS, the idea of a grant of parts of EEZs to anyone other than the coastal state does not apply. Customary rules, in order to exercise the rights in an EEZ, require a formal declaration of the coastal state. This statement is not supported by UNCLOS, but it was made contrary to the rule excluding the statement about the continental shelf, and has thus been used by international jurisprudence, as early as the case of the North Sea.58 The transfer of sovereignty allows the overlaying of the continental shelf and the EEZ. However, there is no requirement to match the EEZ and the continental shelf, even if the hypothesis is believed to be the normal practice.59 The difference in the exercise of sovereignty between territorial and internal waters and the marine functional areas is limited only to certain rights and assets. The continuous and constant reference to the coastal state as a subject entitled to exercise the rights of exploitation of resources in the water and punish conduct prejudicial to the ecosystem makes

56 See Louisiana Purchase Treaty, signed on 30 April 1803, available at ; Purchase of Alaska Treaty, 30 March 1867, available at ; Secret Treaty of March 1860, for Nice and Savoy; territorial transfer disposed in various Peace Treaties, etc. 57 F. Caffio, Glossario di diritto del mare, III ed., 2007, p. 199, annex to Rivista Marittima, n. 5, May 2007. Negotiation process of Arts. 69 and 70 of UNCLOS in U. Leanza, Le nouveau droit de la mer Méditerranée, Editoriale Scientifica, Napoli, 1994, pp. 406-427. 58 Judgment of 20 February1969, North Sea Continental Shelf Case (Federal Republic of Germany v. ­Netherlands), 1969 ICJ Rep. 59 Caffio 2007, p. 199. See U. Leanza & I. Caracciolo, Il diritto internazionale; parte speciale, Vol II, ­Giappichelli, Torino, 2010, Chapter 3.

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Aldo Amirante a move towards illegality, against that transfer of sovereignty to third states, because, beyond the wording of the article, in fact, Russia is to have an EEZ beyond 200 miles, a hypothesis excluded from the Montego Bay Convention. However, the new institution, the sophisticated formulation of the article, the minimum size of the Special Area and the condition that Russia is the neighbouring coastal state do not exclude the possibility and permitted the sale of shares of EEZs by one coastal state to another, which can then effectively and independently impose respect for the rights and sovereignty, albeit within functional limits. A consideration arises if we investigate the birth of the institution of the EEZ: the institution was created to protect the poorest and least developed coastal states, so that they could reserve the fishing areas facing their coasts for their fishermen.60 To assume the possibility of a transfer to third parties of the sovereignty and rights to relevant EEZ areas would reverse the scope of the institution, because it would put on the market, in a definitive way, the pertinent exploitation rights, and the states that could hypothetically be interested in a sale of their EEZ would be precisely the poorest countries, those which the EEZ institution was designed to protect. It is certainly a consideration with ideological reflections, but if the purchase of part of an EEZ is possible, it would result in the possibility of developed countries buying EEZ parts from poorer coastal states (or those affected by corruption), giving way to a new form of colonialism. 22.9 What Rights Is Norway Entitled to Transfer? Another moot point arises from rights affirmed by Norway over the Special Area. A part of the Special Area is part of the area that is more than 200 miles from the baselines of the Svalbard islands. The area 200 miles from the baselines of Svalbard was declared a Fishery Protection Zone, not an EEZ. The choice of Norway was most probably dictated by the obligation, under the Treaty of Paris, of environmental protection of Svalbard. So Norway, in fact, has never declared the EEZ arising from Svalbard. Thus, the rights to which Norway is entitled over the Special Area are those of fishery protection, within the limits set in the Royal Decree that defined the Zone of Ecological Protection (ZEP).61 These rights are limited with respect to rights under an EEZ. While considering the lawful transfer of functional areas under the (limited) sovereignty of Norway to the Russian Federation, we need to ask, what actually has been transmitted, limited to the part included within 200 miles from the Svalbard coastline, the rights those provided by an EEZ or the more limited ones of a ZEP?

60 Leanza 1994, pp. 426 et seq. 61 Supra note 19.

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22  The 2010 Treaty between Norway and the Russian Federation No one can transfer what they do not have. Therefore, the definition of Article 3 of the treaty of delimitation, which explicitly refers to the EEZ, and the ecological protection, is excessive compared with what Norway could really transfer, and Russia should be required to respect the rights transferred. Article 3 ambiguously states that the Russian Federation may exercise “such sovereign rights and jurisdiction derived from exclusive economic zone jurisdiction that Norway would be otherwise entitled to exercise under international law.” Russia will not be able to exercise all the rights arising from an EEZ, but only those that Norway could exercise. This means that the Russian Federation, taking “the necessary steps to ensure that any exercise on its part of such sovereign rights or jurisdiction in the Special Area shall be so characterized in its relevant laws, regulations and charts”, will respect the equal rights of exploitation of the Member States of the Agreement on Svalbard. It is no coincidence that the two parties have formally reserved the rights of third states entering Article 6, which guarantees that the rights and obligations of third states resulting from multilateral treaties are not affected by the agreement. The reference to the Treaty of Paris of 1920 is quite explicit. 22.10 Conclusions The agreement between Norway and Russia on a maritime border in the Barents Sea marks the end of a long negotiation process, and it is not by chance that the agreement has been reached in a period of significant international attention to the Arctic. The prospect of melting ice, the region’s openness to maritime transport, the possibility of establishing more certain rules for fishing, conservation of the environment, access to natural resources, particularly oil deposits, have certainly influenced the parties to arrive at a solution.62 The resolution of the dispute was necessary in order to ensure the consolidation of the parties’ sovereign rights over natural resources and the jurisdiction of maritime transport in the area. Indeed, the removal of the overlapping areas also clarifies the rights and obligations of third states in the area, even with the doubts outlined above. Norway and Russia have pointed out, in particular, that the treaty confirms and applies the principles contained in the Declaration of Ilulissat, stating that the overall legal framework for the Arctic Ocean is international law, in particular the UNCLOS.63 Arctic governance is thus characterized by deepening cooperation, sometimes accompanied with strong statements, detention of illegal fishing ships or demonstrations of

62 Neumann 2010, p. 2. 63 Press release of 15 September 2010, No. 118/10. See Ilulissat Declaration 2008; Borgerson 2009; Joint Statement 2010.

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Aldo Amirante military power.64 The Barents Agreement leads to another step on the way to cooperation and averts the prospect of a Race to the Pole or a New Cold War. The sea boundary with Russia could probably contribute to the consolidation of requests established by Norway on the basis of Svalbard. The focus in the coming years will be on the question of the application of the Treaty of Svalbard within these areas. The impact of the Norwegian–Russian treaty on the maritime delimitation of the Arctic is uncertain, but it certainly adds an element to the management of the Arctic. However, the border dispute, although resolved, is likely to trigger further problems with third countries and will also pose questions about some of the points of UNCLOS.

64 Pedersen & Ulfstein 2009, p. 10.

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23

Environmental Liability in Antarctica: The 2005 Annex VI to the Madrid Protocol and the Italian Legal System

Giulia Nicchia* 23.1 Introductory Remarks Antarctica is a large continent of vital importance to humanity. Its vast landmass and surrounding seas exert a great influence on the world’s oceans and weather systems. Its wilderness offers unique opportunities for the study of the earth and the evolution of past climate, which is considered essential knowledge to assess the impact of anthropogenic forcing on the current climate change. All the while, given its high degree of dependence on Antarctica, the whole earth may be affected by any disturbance of its ecosystem. Therefore, international community have started questioning how to preserve the immeasurable value of this continent against environmental challenges posed by contemporary society. If the environment is increasingly perceived as a core component of the common heritage of mankind, Antarctica – and its preservation – is a global concern as well as an exceptional laboratory for the testing of the international cooperation in the field of environmental protection. Allegedly, the 2005 Liability Annex to the Protocol on environmental protection in Antarctica is the most relevant experiment. In the light of such preliminary considerations, this chapter is intended to provide an analysis of the provisions arranged by the 2005 Annex in the context of the international environmental liability regime, further addressing the issues concerning its implementation and the role of Italy in the achievement of a successful environmental protection system in Antarctica. 23.2 Environmental Liability in International Law Every international wrongful act, defined as any action or omission of a state in breach of an international obligation, entails the international responsibility of that state. At the current stage of development of international law, an international right does not exist with *

Research fellow of International Law, Luiss-Guido Carli (Rome).

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Giulia Nicchia regard to the environment per se, and a state can be liable only for actions or omissions that cause environmental harm outside its territory, the so-called ‘cross-border pollution’. The transboundary pollution is often referred to as a specific type of environmental damage that is caused by (or originated in) one state and affects the territory of another.1 As stated by the United States–Canada Arbitral Tribunal in the Trail Smelter decision: under the principles of international law [. . .] no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the property of persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.2 Moreover, the general duty to avoid transboundary injury was asserted in the Corfu ­Channel case, when the International Court of Justice acknowledged: “[. . .] every State’s obligation to prevent its territory to be used knowingly for acts contrary to the rights of other States.”3 International jurisprudence has substantially addressed the issue mainly in reference to the phenomenon of air and water pollution.4 Through the UN General Assembly resolutions, the obligation to prevent and fight serious cross-border environmental interference assumes a wider scope.5 Principle 21 of the 1972 Stockholm Declaration on the Human Environment recognizes, indeed, that: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.6

1 2 3 4 5 6

X. Hanquin, Transboundary Damage in International Law, Cambridge University Press, Cambridge, 2003, p. 1. See also A. Rosas, ‘Issues of Art Liability for Transboundary Environmental Damage’, Nordic Journal of International Law, Vol. 60, No. 29, 1991, pp. 29-48. Arbitral Judgment of 11 March 1941, Trail Smelter case (United States v. Canada), 3 UNRIAA 1938 (1949), p. 1965. Corfu Channel Case (United Kingdom v. Albania), Merits, International Court of Justice (ICJ), 9 April 1949, 1949 ICJ Rep. 22. In addition to the above-mentioned Trail Smelter case, see also Lake Lanoux decision of 16 November 1957 (France v. Spain), 24 ILR 101 (1957) as well as the ICJ advisory opinion concerning the Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, 1996 ICJ Rep. 226. L. Pineschi, La Protezione dell’Ambiente in Antartide, CEDAM, Padova, 1993, p. 21. 1972, Declaration of the United Nations Conference on the Human Environment, Principle 21. The same ­approach has been adopted by the 1992 The Rio Declaration on Environment and Development at Principle 2.

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23  Environmental Liability in Antarctica The spatial element, the maximum expression of territorial sovereignty, thus, has been greatly softened and the general rule relating to the prohibition of transboundary pollution applies not only to the territory of other states but, rather, to the whole environment of other states as well as of global commons.7 The prohibition to cause serious, cross-border environmental harm, which is imposed directly on organs of the state in the case of public harmful activities, results in a general obligation of supervision and control by the state over the activities carried out by individuals. In this connection, the 1982 UN Convention on the Law of the Sea provides an interesting framework. The latter affirms that even if states have the sovereign right to exploit their natural resources, it has to be in accordance with their duty to protect and preserve the marine environment and that: States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention [. . .].8 Therefore, considering that most contemporary pollutant activities are committed by ­private operators, states can be only considered responsible for violations of international obligations of prevention, precaution and due diligence, arising from the above-­ mentioned consolidated general rule.9 According to the prevention principle, states have to adopt all necessary measures in order to avoid, at their source, injuries that could result from land uses.10 As far as the environment is concerned, major emphasis is given to preventive measures: environmental harms   7 The ‘global commons’ are defined as “resource domains or areas that lie outside of the political reach of any one nation State.” Geographically, global commons refers to four areas: high seas, atmosphere, outer space and, according to some scholars, polar regions. See the analysis of the UNEP Division of Environmental Law and Conventions (DELC), . Cf. Hanquin 2003, pp. 191-235.   8 1982 United Nations Convention on the Law of the Sea (UNCLOS), 1833 UNTS 634, Arts. 193 and 194,2.   9 For a critical analysis of the legal status of these principles, see D. Bodansky, ‘Customary (and Not so ­Customary) International Environmental Law’, Indiana Journal of Global Legal Studies, Vol. 3, No. 1, 1995, pp. 105-119. 10 See Principle 7 of the Stockholm Declaration, which states that “States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities [. . .]”; Art. 194,1 of the United Nations Convention on the Law of the Sea establishes that “States shall take [. . .] all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment”; moreover, Principles 11 and 17 of the Rio Declaration foresee that “States shall enact effective environmental legislation [. . .]” and “Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.”

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Giulia Nicchia cannot be integrally compensated, it is often difficult to fully restore the quo ante situation. As stated by the ICJ in the 1997 judgment on the Gabcikovo-Nagymaros case: [. . .]in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage.11 Similarly, the 2005 Arbitral decision on the Iron Rhine Railway case underlines the legal nature of the same principle, therein consecrated as a principle of general international law.12 The duty of prevention is part of the wider concept of ‘due diligence’.13 Several international conventions14 as well as resolutions and reports of international conferences and organizations15 deal with the obligation of due diligence as the standard basis for the protection of the environment from harm. A state fulfils its obligation of due diligence when it issues laws and administrative regulations as well as implements, through various enforcement mechanisms, policies to prevent and minimize the risk of transboundary damage. Ultimately, the due diligence obligation can be satisfied when a government has a legal system and sufficient resources to maintain an adequate administrative apparatus to control and monitor the activities.16 Lastly, the precautionary principle states that when there is a threat of serious or irreversible damage, lack of full scientific certainty over the harmful effect on the environment shall not be used as a reason for postponing action.17 The core purpose of the 11 Gabcikovo-Nagymaros (Hungary v. Slovak Republic), Judgement of 25 September 1997, 1997 ICJ Rep. 7, para. 140. 12 The Tribunal states: “where development may cause significant harm to the environment there is a duty to prevent, or at least mitigate, such harm [. . .]. This duty, in the opinion of the Tribunal, has now become a principle of general international law.” Iron Rhine (“Ijzeren Rijn”) Railway Arbitral Award of 24 May 2005 (Belgium v. the Netherlands), 27 UNRIAA 35-125, para. 59. 13 See International Law Commission, ‘Draft Articles on Prevention of Transboundary Harm From Hazardous Activities, With Commentaries’, Yearbook of the International Law Commission, Vol. II, Part Two, 2001, p. 154. The draft articles establishes a basic obligation of prevention and reduction of transboundary damages providing a series of operational measures, including the environmental impact assessment, the notification of environmental risk to states potentially involved, consultations with the states on prevention measures and the development of emergency plans at national level. See U. Leanza & I. Caracciolo, Il diritto internazionale: diritto per gli Stati e diritto per gli individui, 3rd edn, Giappichelli Editore, Torino, 2012, p. 330. 14 See, e.g., Art. 194, para. 1, of the United Nations Convention on the Law of the Sea; Arts. I and II and Art. VII, para. 2, of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter; Art. 2 of the Vienna Convention for the Protection of the Ozone Layer; Art. 7, para. 5, of the Convention on the Regulation of Antarctic Mineral Resource Activities; Art. 2, para. 1, of the Convention on Environmental Impact Assessment in a Transboundary Context; and Art. 2, para. 1, of the Convention on the Protection and Use of Transboundary Watercourses and International Lakes. 15 See Principle 21 of the World Charter for Nature UNAG Res. 37/7, 28 October 1982. 16 International Law Commission 2001, p. 155. 17 See 1992 The Rio Declaration on Environment and Development, Principle 15.

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23  Environmental Liability in Antarctica precautionary principle is that of taking action to tackle an environmental threat before the disaster occurs.18 Even if the legal status of the precautionary principle is a controversial issue,19 its inclusion in the Rio Declaration as well as in other relevant soft law instruments20 paved the way to its general acceptance as a principle of international environmental law. In addition, since 1991 the principle has been endorsed, explicitly or implicitly, in many multilateral environmental agreements at both the international and regional levels.21 Nevertheless, whereas preventive, precautionary and due diligence measures prove to be insufficient, states are required to take all necessary measures to ensure that prompt and adequate compensation is available for victims of transboundary damage originated “within its territory or otherwise under its jurisdiction or control.”22 The environmental liability regime, meant as the set of legal consequences stemming from environmental damage, is thus based on some fundamental assumptions.23 The first assumption is the existence of a measurable damage. The damage, physically correlated with the harmful activity, has to reach a certain degree of severity to be legally relevant: it has to be ‘significant’, leading to a real detrimental effect susceptible of being measured by factual and objective standards.24 The second assumption is the existence of an injured party and, thus, of a dyadic relation between the pollutant state and the injured state. Lastly, 18 See S.V. Scott, ‘How Cautious Is Precautious? Antarctic Tourism and the Precautionary Principle’, International and Comparative Law Quarterly, Vol. 50, 2001, pp. 963-971, at p. 964. 19 Some scholars have argued that the principle has become part of customary international law, see, e.g., J. Cameron & J. Abouchar, ‘The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment’, Boston College International Law and Comparative Law Review, Vol. 14, 1991, pp. 20-21. Others are skeptical over this interpretation, see D.M. Bodansky, ‘Scientific Uncertainty and the Precautionary Principle’, Environment, Vol. 33, 1991, pp. 4-5 and pp. 43-44. Lastly, some other scholars underline the purely academic nature of the debate and that the precautionary principle has predominantly become relevant “through its refinements in treaty law,” in this regard, it can be applied in a meaningful way without being codified. See R. Wolfrum, ‘Precautionary Principle’, in J.-P. Beurier, A. Kiss & S. Mahmoudi (Eds.), New Technologies and Law of the Marine Environment, Kluwer, The Hague, 2000, p. 207. 20 See, e.g., the 1990 Pan-European Ministerial Declaration on sustainable development of the UN Economic Commission for Europe, Report of the Economic Commission for Europe on the Bergen Conference, 8-16 May 1990, A/CONF.151/PC/10, Ann. I, para. 7 and the 1989 UNEP Council decision on promoting the prevention and elimination of marine pollution, Governing Council Decision 15/27, 1989. 21 See, at the regional level, Art. 4 of the 1991 Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa; Art. 174 of the 1999 Treaty of Amsterdam, today Art. 191 TFEU. At the international level: Art. 3 of the 1992 UN Framework Convention on Climate Change; Art. 2 of the 2001 Vienna Convention on the Protection of the Ozone Layer. 22 International Law Commission, ‘Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities’, Yearbook of the International Law Commission, Vol. II, Part Two, 2006, Principle 4 ‘Prompt and Adequate Compensation’. 23 See T. Scovazzi, ‘Maritime Accidents with Particular Emphasis on Liability and Compensation for Damage From Exploitation of Mineral Resources of the Seabed’, in A. De Guttry et al. (Eds.), International Disaster Response Law, Asser Press, The Hague, 2012, pp. 287-320. 24 International Law Commission 2006, p. 123.

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Giulia Nicchia the obligation to compensate the latter, according to the ‘polluter pays’ principle, defined in treaty practice as a general principle of international environmental law.25 23.3 The Antarctic Peculiarities When it comes to Antarctica, the traditional scheme of environmental liability presents relevant defections. What happens, in fact, when a state has fulfilled all its international obligations but an environmental accident occurs unintentionally during the course of activities not expressly prohibited by international law, causing inestimable damage to the environment of a region characterized by an uncertain legal status? This scenario is much more than a mere possibility. Similar incidents have already ­occurred, for instance in 1989, when the ship Bahia Paraiso, the main supply vessel used for the Argentine Antarctic Program, grounded a rock in the northern part of the Antarctic Peninsula and spilled the diesel fuel stored on board.26 As it has been underlined: With the grounding of the Bahia Paraiso, no State territory or property or that of its nationals has suffered a particular injury, the continent of Antarctica is considered by most States to be outside of the sovereignty of any State. If no State or a national of a State has suffered a particular injury as a result of the spill, may no State possess standing to seek a remedy? If the injury ­requirement is a firm one, from which no derogation is permitted, the injury to ­Antarctica might go unremedied.27 The following three main problems emerge: who is liable for the environmental harm? How can the damage be quantified? Who is the injured party entitled to claim a loss? As for the first problem (who is liable?), as it has been previously stated, most of the environmental damages are today caused by activities conducted by private operators. 25 As found by the International Law Commission, consolidated in the 1992 Rio Declaration of Development and Environment at Principle 16, the ‘polluter pays’ principle has been endorsed in a wide range of international legal instruments and in different national jurisdictions. See, e.g., the 1990 International Convention on Oil Pollution Preparedness and Response, 30 ILM 735 (1990); the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), 32 ILM 1069 (1993); the 1992 Convention on the Protection of the Marine Environment of the Black Sea Against Pollution, 32 ILM 1110 (1993); the 2003 Kiev Protocol on Pollutant Release and Transfer Registers; the EU Directive 2004/35/ CE on environmental liability. As for national jurisdictions: Epoux Vullion v. Société Immobilière VernetChritophe, JCP 1971.2.16781, France’s Cour de Cassation and the 1998 Swedish Environmental Code. 26 S. Voneky, ‘The Liability Annex to the Protocol on Environmental Protection to the Antarctic Treaty’, in D. Konig et al. (Eds.), International Law Today: New Challenges and the Need for Reform?, Springer, New York, 2008, pp. 165-193, at p. 174. 27 J.I. Charney, ‘Third State Remedies for Environmental Damage to the World’s Common Spaces’, in F. ­Francioni & T. Scovazzi (Eds.), International Responsibility for Environmental Harm, Graham and Trotman, London, 1991, p. 149.

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23  Environmental Liability in Antarctica A state’s respect for international obligations such as prevention, precaution and due diligence does not prevent fragile ecosystems from unexpected environmental harms that do not comprise a fault-based liability regime. The general practice shows that states usually elaborate conventional regimes based on the civil responsibility of private operators who are then liable for the damages caused. Thus, there is a transfer of responsibility from the international to the domestic level. A state strict environmental liability is not envisaged in any customary rule of international law, and conventional provisions are defectives. Many environmental treaties do not provide references to liability, and some of them explicitly admit the lack of such provisions, e.g. the 1979 Geneva Convention on Long-Range Transboundary Air Pollution, which states that the Convention “does not contain a rule on state liability as to damage.”28 An interesting exception is represented by the 1972 Convention on International Liability for Damage Caused by Space Objects, which envisages, at Article II, different kinds of liabilities: fault-based and strict.29 In addition, in international practice only two cases seem to support the strict liability theory: ‘Fukuryu Maru’ (1954) and ‘Cosmos’ (1978). In the first case, The United States agreed to pay 2 million dollars in compensation to Japan for having threatened the life and health of a fishing vessel’s crew by conducting nuclear experiments in the nearby Marshall Islands. In the second case, the Soviet Union agreed to compensate Canada for the harmful effects arising from the disintegration of a soviet satellite on ­Canadian territory. Neither the United States nor the Soviet Union officially admitted their responsibility for acts not prohibited by international law.30 The same compensation was meant by the United States and the USSR as not due but rather a ‘granted effort’.31 The International Law Commission seems to follow a similar orientation. The 2006 Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities acknowledge civil responsibility of private operators, while the state is required to “take all necessary measures to ensure that prompt and adequate compensation 28 1979 Geneva Convention on Long-Range Transboundary Air Pollution, 1302 UNTS 217, footnote to Art. 8, f. Moreover, other multilateral environmental agreements provide for “non-compliance” procedures rather than for liability clauses. Cf. 1987 Montreal Protocol on Substances That Deplete the Ozone Layer, 1522 UNTS 3; 1997 Kyoto Protocol to the UN Framework Convention on Climate Change, 2303 UNTS 148. See also P. Birnie & A. Boyle, International Law and the Environment, 2nd edn, Oxford University Press, Oxford, 2002; P. Sands, Principles of International Environmental Law, 2nd edn, Cambridge University Press, Cambridge, 2003; T. Treves (Ed.), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements, Asser Press, The Hague, 2009. 29 Art. II of the 1972 Convention on International Liability for Damage Caused by Space Objects states: “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight,” where “launching State,” according to Art. I, has to be intended as both the State that launches or procures the launching of a space object and the State from whose territory or facility a space object is launched. 1972 Convention on the International Liability for Damage Caused by Space Objects, 13810 UNTS 961. 30 A. Cassese, Diritto Internazionale II. I problemi della comunità internazionale, il Mulino, Bologna, 2004, p. 236. 31 B. Conforti, Diritto internazionale, 8th edn, Editoriale Scientifica, Napoli, 2010, p. 221.

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Giulia Nicchia is available for victims”.32 Primary liability is thus placed on the operator while the state is not obliged to pay the compensation, but only expected to put in place adequate enforcement mechanisms. In recent decades, some accidents have drawn the attention of the international community to the severity of the pollution damage. The 1984 explosion of the disposed chemical pesticides plant in Bhopal (India), the 1986 explosion of a nuclear power plant in Chernobyl (Ukraine) and the 2010 outbreak of the British Petroleum platform off the coast of the Gulf of Mexico are just three of the wide range of cases sensitive to change society’s perception of the contemporary environmental issue. Therefore, given the lack of clear provisions, it could be necessary to accept a strict state liability in order to strengthen the environmental protection. In this connection, the elements of fault and damage would not be essential to configure a responsibility regime.33 Nevertheless, the international practice confirms that a strict liability for environmental damages is an exception, while the general rule is one of the civil liability of private operators.34 Treaty practice shows that states usually foresee compensation ceilings and compulsory insurance mechanisms, contemplating their direct intervention only when damages exceed the established ceilings.35 Moreover, ICJ cases are generally characterized not only by the reluctance of states to accept restorative measures and compensation but also by the reticence of judges in quantifying them.36 The problem of environmental damage quantification is, in fact, rather angular. The environmental damage is often used as a ‘property concept’, where a market value is attributed to the loss or the damage. At the same time, environmental deterioration does not necessarily have a market or a measurable economic value: it is hard to estimate the intangible aspects of the environment such as loss of biodiversity, impoverishment of ecosystems or ozone layer depletion.37 In Antarctica’s uniquely fragile ecosystem, it is even more difficult 32 International Law Commission 2006, Art. 4,1. 33 In this regard, see Cassese 2004, p. 238 and M. Alberton, ‘Il Danno Ambientale in un’Ottica Multilivello: Spunti di Riflessione’, IANUS, Vol. 2, 2010, pp. 1-24. 34 For an analysis of contemporary liability regimes, see Rosas 1991, pp. 33 and 38. Furthermore, as it has been stated, civil liability plugs the gap of the actual international environmental law, which has a public nature. Cf. L. Bergkamp, ‘Liability and Environment: Private and Public Law Aspects of Civil Liability for Environmental Harm in an International Context’, Journal of Environmental Law, Vol. 15, No. 3, 2003, pp. 427-431. 35 Leanza & Caracciolo 2012, p. 329. 36 It is particularly evident in the International Law Commission 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, Vol. II (Part Two); in the 2006 ILC Draft principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, Yearbook of the International Law Commission, 2006, Vol. II, Part Two, Art. 4,1; in the international jurisprudence: Trail smelter arbitration (1941), Lake Lanoux arbitration (1957), Nuclear tests (1973), Gabcikovo-Nagymaros Project (1997), as well as in the most recent Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010 ICJ Rep. 14, para. IV. 37 A. Kiss & D. Shelton, ‘Strict Liability in International Environmental Law’, The George Washington University Law School Public Law and Legal Theory Working Paper, No. 345, 2007.

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23  Environmental Liability in Antarctica to determine the economic loss. Its deterioration, in fact, is sensitive to produce a harmful impact on dependent ecosystems, on climate change and, thus, on all of mankind. Particularly interesting for the future development of the issue is the experience of the UN Compensation Commission for damages caused by the First Gulf War, which took into account a broad range and detailed categories of environmental refundable damages.38 The Commission reckoned the necessity to compensate environmental damages to the maximum possible extent, adopting innovative calculation methods such as the ‘Habitat Equivalency Analysis’.39 In international practice, this is a pioneer and isolated experience because environmental harm does not always entail damage or economic loss for another state. Lastly, the third problem – who is entitled to claim a loss in case of environmental harm – is challenging in the Antarctic system. Neither is Antarctica a common space outside domestic jurisdiction nor is it under the sovereignty of a state. This uncertain legal status makes the identification of the claimant difficult since no state enjoys a sovereign control over Antarctica.40 To sum up, global environmental damages, produced by typical activities of contemporary technological society carried out by states but more often by private operators, may be excluded from the international liability regime currently in force. This situation is particularly evident in the case of environmental deterioration in Antarctica. Annex VI on Environmental Liability addresses all these concerns, enriching the Antarctic system of a sophisticated enforcement mechanism, which, in spite of its weaknesses and limits, is the first significant step towards the establishment of real environmental protection in the region.

38 The United Nations Compensation Commission, established in 1991 as a subsidiary body of the UN Security Council, is in charge of collecting compensation claims for loss and damages caused directly by the Iraq’s invasion of Kuwait. The Commission concluded its inquiries in 2005 and compensation procedures in 2007. Environmental claims are included in the ‘F4 claims’ category. Report and Recommendations Made by the Panel of Commissioners Concerning the Fifth Instalment of ‘F4’ claims, UN Security Council, S/AC.26/2005/10, 30 June 2005. 39 The Habitat Equivalency Analysis (HEA) is an accounting and financial instrument used in the United States to estimate the appropriate level of compensation for injuries to natural resources. This method is based on the determination of costs and conditions of the restoration of environment injured, and it is particularly interesting because it separates, in terms of costs, the restoration and the compensation phases. In this regard, see US Department of Commerce, ‘Habitat Equivalency Analysis: An Overview Damage Assessment and Restoration Program National Oceanic and Atmospheric Administration’, 21 March 1995 (and following revisions of 4 October 2000 and 23 May 2006). Full text available at: (accessed January 2013). 40 There are seven claimant States: United Kingdom, Norway, Australia, France, New Zealand, Chile and Argentina. The 39 non-claimant States do not recognize the legal validity of the claims. See J. Frakes, ‘The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach a Compromise?’, Wisconsin International Law Journal, Vol. 21, 2003, pp. 409-434; E. Guntrip, ‘The Common Heritage of Mankind: An Adequate Regime for Managing the Deep Seabed?’, Melbourne Journal of International Law, Vol. 4, 2003, pp. 375-405.

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Giulia Nicchia 23.4 From Washington to Wellington, from Madrid to Stockholm, the Increasing Need for a Liability Regime The 1959 Treaty of Washington does not include specific provisions on the environmental protection in Antarctica. Its main objective is to ‘freeze’ territorial ambitions of certain states claiming sovereignty over the continent as well as to provide a framework for a cooperative management and use of the area covered by the agreement. Nevertheless, it is undeniable that one of the pillar principles of the Washington Treaty is the preservation of the Antarctic ecosystem. Article 5 prohibits nuclear explosion and disposal of radioactive waste, and Article 9 establishes that state parties are obliged to formulate measures regarding the preservation of living resources in Antarctica.41 However, it does not include any liability clause, and the same is true for other conventions of the Antarctic Treaty system: the 1972 Convention for the Conservation of Antarctic Seals and the 1980 Convention for the Conservation of Antarctic Marine and Living Resources. The only convention that sets rules of liability is the Convention on the Regulation of Antarctic Mineral Resources Activities of 1988 (CRAMRA or Wellington Convention), which has never entered – and will never come – into force.42 The Wellington Convention offered the possibility to conduct mining activities in Antarctica providing, at the same time, for some restrictive provisions and conditions in order to enhance environmental protection in Antarctica in spite of mineral exploitation. In fact, the Convention reports a rigorous procedure for the assessment of environmental impact, based essentially on three main points: (1) mineral exploitation has to be approved by consensus by the Antarctic Treaty Consultative Meeting (ATCM), (2) operators must demonstrate that they have the technological capabilities to respect the environment and to react promptly in case of accidents and (3) mining activities are not permitted unless such activities are able to demonstrate zero harmful impact on Antarctic environment and dependent ecosystems. As for liability rules, the Wellington Convention introduced innovative elements, including the provision of the operators’ strict liability regime for environmental damage in Antarctica.43 For the first time, an international treaty contemplated a liability regime for the environmental damage per se, despite its limited scope.44 It was intended to cover, in 41 The other two pillar principles are expressed in Arts. 1 and 2: “Antarctica is to be used for peaceful purposes” (Art. 1) and “International cooperation in scientific research in Antarctica is to be promoted” (Art. 2). 1959 Antarctic Treaty, 402 UNTS 71, Arts. 1-2. 42 For a critical assessment of the Wellington Convention see D. Cook Waller, ‘Death of a Treaty: The Decline and Fall of the Antarctic Minerals Convention’, Vanderbilt Journal of Transnational Law, Vol. 22, 1989, pp. 631-668. 43 See H.C. Burmester, ‘Liability for Damage From Antarctic Mineral Resources Activities’, Virginia Journal of International Law, Vol. 29, 1989, pp. 621-660; Z. Keyuan, ‘Environmental Liability and the Antarctic Treaty System’, Singapore Journal of International & Comparative Law, Vol. 1, 1998, pp. 596-628. 44 C. Dommen, ‘La protection des régions polaires: l’Arctique et l’Antarctique’, in C. Dommen & P. Cullet (Eds.), Droit International de l’environnement, Kluwer Law International, The Hague, 1998, pp. 405-456.

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23  Environmental Liability in Antarctica fact, only damages entailed by mining activities, excluding its unintentional impacts on the Antarctic ecosystem. Operators in Antarctica had to prevent, contain and clean up in case of environmental damage, while states were invested with a subsidiary responsibility in case the operator was unwilling or unable to put in place responsive actions. The latter included all reintegration measures for the injured environment.45 In spite of its strict environmental regulations, the Convention, finally adopted after six years of negotiation, was overwhelmed by criticism. Public opinion, NGOs as well as the UN General Assembly contested the possibility, even if remote, to open the continent to mineral exploitation.46 Lastly, the decision of France and Australia not to ratify the instrument marked the end of the Wellington Convention but, simultaneously, marked the starting point of negotiations on a comprehensive, global, environmental protocol. Consultative parties agreed on the necessity of elaborating a specific document on the environmental protection of ­Antarctica because of the uniqueness of its ecosystem. Thus, a protocol on the environmental protection in Antarctica (Madrid Protocol) was finally adopted in 1991, and it entered into force in 1998.47 Most of the provisions in the Madrid Protocol reproduce material and procedural principles contained in the 1992 Rio Declaration on Environment and Development, which are consolidated in international practice, including the obligation of prevention and environmental impact assessment as well as the principle of cooperation. According to the Madrid Protocol, any activity in Antarctica has to be planned and conducted limiting its negative impact on the environment, including effects on dependent or associated ecosystems.48 Prior to the ratification of the Protocol, activities in Antarctica were regulated by separated non-compulsory recommendation rather than by a comprehensive regime. In this regard, Annexes to the Protocol are considered supplementary to the global environmental protection regime therein settled.49 The Protocol, which recognizes, at Article 2, 45 For the international debate over the Wellington Convention: M.D. Lemonick, ‘Antarctica: Is Any Place Safe From Mankind?’, TIME, 15 January 1990, available at (accessed January 2013). 46 Among others, the UNGA Res. A/RES/44/124 n B, 15 December 1989. 47 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), 24 April 1991, 30 ILM 1455. For a critical assessment of the Protocol at issue see E.F. Foreman, ‘Protecting the Antarctic Environment: Will a Protocol Be Enough?’, American University Journal of International Law and Policy, Vol. 7, 1991-1992, pp. 843-879; F. Francioni, ‘The Madrid Protocol on the Protection of the Antarctic Environment’, Texas International Law Journal, Vol. 28, 1993, pp. 47-72. 48 S. Marchisio, ‘L’attuazione del Protocollo di Madrid nell’ordinamento italiano’, in S. Marchisio & G. Tamburelli (Eds.), L’evoluzione del sistema antartico, Giuffré, Milano, 2001, pp. 33-50. 49 Currently the Madrid Protocol is enriched by five Annexes. Ann. I, on the environmental impact assessment, States that conduct activities in Antarctica are assessed on whether they have a minor or transitory impact on the environment. Ann. II, on the conservation of Antarctic fauna and flora updates the existing rules relating to protection of animals and plants. Ann. III, on waste disposal and waste management,

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Giulia Nicchia the importance of Antarctica “as a natural reserve devoted to peace and science,” prohibits mineral exploitation activities, requires an environmental impact assessment prior to any activities as well as contingency plans in case of environmental emergency and, lastly, establishes a Commission for Environmental Protection. In particular, the Commission is responsible for presenting a report of all its sessions and for issuing a qualified advisory opinion to the ATCM as well as being in charge of providing advice and formulating recommendations to the parties. The Madrid Protocol is often acknowledged as an excellent example of environmental policy since it establishes a working administrative body within the Antarctic Treaty system and provides for an obligatory mechanism of dispute settlement.50 On the contrary, focusing essentially on prevention rather than on compensation of damages, no liability rules – identifying the range of reparable damages, the subjects or institutions against whom to proceed, the beneficiaries of prospective claims – were there arranged, weakening the scope of the environmental protection regime.51 Nevertheless, Article 16 encouraged state parties to “undertake to elaborate rules and procedures relating to liability for damage arising from activities taking place in the Antarctic Treaty area and covered by this Protocol.” The same article, in addition, suggested the shape “Those rules and procedures shall be included in one or more Annexes to be adopted in accordance with Article 9 (2).” Article 9 provides that “The Annexes to this Protocol shall form an integral part thereof ” and specifies at paragraph 2 that “Annexes, additional to Annexes I-IV, may be adopted and become effective in accordance with Article IX of the Antarctic Treaty.”52 In addition, the Final Act of the XI Special Consultative Meeting, which adopted the Protocol of Madrid, confirmed the willingness of the consultative meeting to rapidly elaborate rules and procedures relating to liability



specifies wastes that may be disposed of within Antarctica and wastes that must be removed. Ann. IV, on the prevention of marine pollution regulates the discharge of substances from ships, including oily mixtures and garbage. Ann. V, on the management of protected areas, establishes a revised protected area system that integrates the previous categories of protected areas into Antarctic Specially Protected Areas and Antarctic Specially Managed Areas. Ann. I, II, III and IV came into force with the Protocol of Madrid in 1998 while Ann. V in 2002 . 50 According to Art. 18 of the Protocol, negotiation, inquiry, mediation, conciliation, arbitration and judicial settlement have to be promptly promoted by parties involved in a dispute arising from the application or interpretation of the Protocol. Moreover, at Art. 19, the Protocol states that each Party, when signing, ratifying, accepting, approving or acceding to this Protocol, may choose by written declaration as dispute settlement procedure the International Court of Justice or the Arbitral Tribunal. 51 Francioni 1993, p. 71. 52 Art. IX of the Washington Treaty establishes that “Representatives of the Contracting Parties [. . .] shall meet [. . .] at suitable intervals and places, for the purpose of exchanging information, consulting together on matters of common interest pertaining to Antarctica, and formulating and considering, and recommending to their Governments, measures in furtherance of the principles and objectives of the treaty, including measures regarding: [. . .] (f) preservation and conservation of living resources in Antarctica”. Furthermore, at para. 4, it states that “The measures referred to in paragraph 1 of this Article shall become effective when approved by all the Contracting Parties whose representatives were entitled to participate in the meetings held to consider those measures.” The Antarctic Treaty 1959.

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23  Environmental Liability in Antarctica for environmental damages arising from activities developed in areas covered by the Antarctic Treaty.53 Article 16 and the Meeting’s Final Act provided for the legal framework to launch negotiations for a complete liability Annex as well as to approve it, as a compulsory measure of the Antarctic system. A group of experts was immediately appointed in 1993, but it suspended its activities in 1998 when it appeared clear that negotiations had come to a standstill. The approach of the legal experts was exceptionally innovative and broad in scope. First of all, the category of environmental damage, defined as the negative impact on the environment ‘major rather than minor or transitory’, was broad, including the aesthetic value as well as damages considered acceptable according to the environmental impact assessment procedures. The liability regime was strict and incumbent on governmental or non-governmental operators and foresaw, in addition, the obligation for the operator to adopt preventative measures as well as prompt responsive actions. Because of opposition from the United States, it was impossible to reach the consensus required to adopt the Annex. It was then proposed that a more limited and ‘step-by-step’ approach be adopted, aimed at addressing unexpected environmental emergencies.54 This is the orientation adopted in the second round of negotiations, started in 1999 in the framework of Consultative Meetings of Antarctic Treaty and that culminated in 2005 with the adoption of Annex VI, which has not yet come into force.55 Annex VI on liability arising from environmental emergencies was adopted as a measure – Measure 1 (2005) – and not in the form of a recommendation as it was for the 1991 Annex V. As it has been stated, the different nature of their legal ground is due to the fact that in the time elapsed between the adoption of the two Annexes, the Antarctic system has improved and ameliorated its instruments. In 1995, in fact, at the Seoul Consultative Meeting, it was decided to distinguish three instruments: (1) measures with compulsory effects after the adoption by consultative parties, (2) decisions concerning organizational aspects of the ­Antarctic Treaty system and, lastly, (3) resolutions that are not compulsory and have a

53 The Final Act states as follows: “The Meeting underlined the commitment of the Parties to the Protocol in its Art. 16 to elaborate rules and procedures relating to liability for damage arising from activities taking place in the Antarctic Treaty area and covered by the Protocol, with a view to their inclusion in one or more Annexes and expressed the wish that work on their elaboration could begin at an early stage. In this context, it was understood that liability for damage to the Antarctic environment should be included in such an elaboration.” 1991 Final Act of the Eleventh Antarctic Treaty Special Consultative Meeting. Full text available at (accessed January 2013). 54 D. MacKay, ‘The Proposed Antarctic Treaty on Environmental Damage’, ILSA International and Comparative Law, Vol. 6, 1999-2000, pp. 473-484. 55 Annex on Liability Arising from Environmental Emergencies (Annex VI) to the Protocol on Environmental Protection to the Antarctic Treaty, Measure 1 (2005), cf. Final Report of the Twenty-Eighth Antarctic Treaty Consultative Meeting, Antarctic Treaty Secretariat (Ed.), Stockholm, 6-17 June 2005, 63. Full text available at (accessed January 2013).

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Giulia Nicchia merely exhortative nature. The first instrument was finally chosen for the adoption of Annex VI, which was intended as a fundamental tool for the improvement of environmental protection in Antarctica. 23.5 An Analysis of Annex VI Provisions Unlike earlier measures, Annex VI contains a preamble that contextualizes the issue of environmental liability in the Antarctic region. The preamble makes an express reference to the already-mentioned Article 16 of the Protocol as well as to Article 15 concerning the responsive actions and contingency plans that have to be made in case of environmental emergencies.56 Moreover, it underlines that the Annex does not satisfy the commitment foreseen under Article 16 of the Protocol, but it represents a first step towards the establishment of a comprehensive environmental liability regime in Antarctica. Analysing the content of the Annex, there is a notably cautious orientation: several limitations affect the liability regime adopted in 2005. Although Annex VI was originally intended to take a comprehensive approach, including all aspects of environmental liability in Antarctica in a single document, the idea of undertaking a gradual path, which would entail different Annexes on specific issues related, was a pragmatic choice. It served to overcome the impasse of negotiations and to set the first stone of the liability regime. Nevertheless, the preamble demonstrates a collective commitment towards the establishment of the environmental liability regime. 23.5.1

Scope of Annex VI: the Adoption of a Narrow Approach

According to Article 1, the Annex applies to [e]nvironmental emergencies in the Antarctic Treaty area which relate to scientific research programmes, tourism and all other governmental and

56 Art. 15 of the Madrid Protocol states as follow: “In order to respond to environmental emergencies in the Antarctic Treaty area, each Party agrees to: (a) provide for prompt and effective response action to such emergencies which might arise in the performance of scientific research programmes, tourism and all other governmental and non-governmental activities in the Antarctic Treaty area for which advance notice is required under Article VII (5) of the Antarctic Treaty, including associated logistic support activities; and (b) establish contingency plans for response to incidents with potential adverse effects on the Antarctic environment or dependent and associated ecosystems”. At para. 2, the same article sets parties’ duties: “2. To this end, the Parties shall: (a) co-operate in the formulation and implementation of such contingency plans; and (b) establish procedures for immediate notification of, and co-operative response to, environmental emergencies. 3. In the implementation of this Article, the Parties shall draw upon the advice of the appropriate international organisations.” The Madrid Protocol 1991.

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23  Environmental Liability in Antarctica non-governmental activities in the Antarctic Treaty area for which advance notice is required under Article VII(5) of the Antarctic Treaty [. . .]. It shall apply to all tourist vessels that enter the Antarctic Treaty area.57 Thus, the Annex covers only critical situations resulting from a limited range of activities affecting only the Antarctic ecosystem. Three thresholds emerge: the narrow definition of environmental damage, the restricted range of activities included and territorial limitations. First of all, ‘environmental emergencies’ are defined in Article 2,b as Any accidental event that has occurred after the entry into force of this Annex, and results in, or imminently threatens to result in, any significant and harmful impact on the Antarctic environment.58 Even if the term ‘damage’ is not used, it is clear that the reference to ‘any significant and harmful impact’ presumes the existence of damage, more precisely any unintentional and unexpected accident that could have a harmful impact on the Antarctic environment not foreseen in the activity planning. The term ‘accident’ excludes the harmful impact consciously produced by the operator from the scope of damages covered by the Annex, but it supports and gives major emphasis to the environmental impact assessment procedure under Article 8 and Annex I of the Madrid Protocol. Moreover, some pragmatic reasons justify the threshold set by the reference to a ‘significant and harmful impact’. As it has been stated, every human activity in Antarctica has some impact on the fragile ecosystem of the region. If every human activity resulted in liability, the obligation to pay would constitute a kind of “fee or tax rather than a compensation.”59 Secondly, Article 1 of the Liability Annex covers de facto environmental impacts resulting from scientific research programmes and tourist activities, in particular tourist vessels entering the Antarctic Treaty area. The Annex is not extended to fishing and related activities. Even if fishing activities are already covered by the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR), Annex VI excludes any impact

57 Ann. VI, 2005, Art. 1. The Washington Treaty states at Art. VII, 5 that advance notice is required for the following activities: “a. all expeditions to and within Antarctica, on the part of its ships or nationals, and all expeditions to Antarctica organized in or proceeding from its territory; b. all stations in Antarctica occupied by its nationals; and c. any military personnel or equipment intended to be introduced by it into Antarctica subject to the conditions prescribed in paragraph 2 of Article I of the present Treaty.” The Antarctic Treaty 1959, Art. VII, 5. 58 Ann. VI, 2005, Art. 2, b. 59 R. Wolfrum & S. Wolf, ‘The Antarctic Liability Regime’ in G. Tamburelli (Ed.), The Antarctic Legal System, the Protection of the Environment of the Polar Regions, Giuffré, Milano, 2008, pp. 161-183, at p. 164.

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Giulia Nicchia resulting from fishing vessels even if the latter are the third potential major source of environmental pollution by accidental events.60 It is hard to accept, in fact, that a collision of a tourist vessel with an iceberg would be covered by the Annex whereas such collision by a fishing vessel would not be covered as both are comparable in terms of ship safety, navigation and marine pollution.61 The last limitation has a geographical nature. According to the content of Article 1, the liability regime only covers harmful impacts on the Antarctic environment, excluding from its applicability damages to dependent and associated ecosystems. The only element considered by the article, indeed, is the direct impact in the area covered by the Treaty, and not the impact affecting ecosystems out of its geographic borders. In spite of the above-mentioned limitations, provisions by Article 1 offer the opportunity to broaden the Annex subjective scope of application. Article 1 states, indeed, that all tourist vessels, regardless of the state of origin, are required to respect the Annex. This provision seems to demonstrate the willingness of state parties to submit to the Annex also vessels from third states. Arguably, the Antarctic Treaty system itself is intended to be directed at third states.62 This may be inferred from Article X, which recalls the commitment of the Contracting Parties to make any effort directed towards ensuring that “no one engages in any activity in Antarctica contrary to the principles or purposes of the present Treaty.”63 It may even be assumed that the core principles of the Antarctic system are aimed at affecting third states, for instance Article I, which consecrate Antarctica to peaceful purposes, Article IV, relating to the prohibition of new territorial claims as well as Article 6 of the Madrid Protocol expressing the duty of all states to cooperate in the protection of the Antarctic environment. According to some scholars, the Antarctic Treaty, on the basis of specific elements, falls within the range of treaties establishing regimes that have an ‘erga omnes’ effect.64 60 Three are the main sources of direct environmental impact that should be covered by a comprehensive liability regime in Antarctica: scientific research, tourism and fishing. As for the scientific research activity, about forty permanent scientific stations are in the region with 4,000 researchers and staff. As technology improves, maritime transport and the capacity of vessels improve, the number of tourists rises, making tourism Antarctica’s growth industry. Lastly, commercial fishing activities are largely conducted in the Antarctica, threatening the area’s fauna. In this regard see Voneky 2008, pp. 169-170. 61 F. Francioni, ‘Liability for Damage to the Common Environment, the Case of Antarctica’, Review of ­European Community and International Environmental Law, Vol. 3, No. 4, 1994, pp. 223-230, at p. 226. 62 M. Fitzmaurice, ‘Third Parties and the Law of Treaties’, in J.A. Frowein & R.Wolfrum (Eds.), Max Planck Yearbook of United Nations Law, Vol. 6, 2002, pp. 37-137, at p. 123. 63 The Antarctic Treaty 1959, Art. X. 64 In fact, it has been stated that the Antarctic Treaty establishes in a permanent manner a joint management system of the area for both parties to the treaty and third states; the manner of the use of the territory does

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23  Environmental Liability in Antarctica However, the ‘objective régime’ theory has been neglected by both the Vienna Convention of the Law of the Treaties and the International Law Commission, which substantially stress the consent nature of international public law.65 In addition, it is controversial if the lack of opposition towards the Treaty and its main principles in general states’ practice has resulted in transforming them into norms of general customary law.66 It is rather likely that, on the one hand, some principles – such as non-militarization, preservation of the environment and freedom of scientific research – have a law-making character and have entered the body of international customary law. On the other hand, the special status of the consultative parties and thus the exclusivity of the Antarctic Treaty system, which does not consider the interests and rights of all states, precludes the consolidation of the necessary ‘opinio juris’.67 Therefore, treaty-related obligations are incumbent only upon states that are part of the Antarctic Treaty. Nevertheless, the effectiveness of its provisions would be seriously endangered if third states refused to comply with them. This is evident in the case of environmental provisions, where the application of the ‘pacta tertiis’ principle is even more questionable because of the supposed universality of their efficacy. In this regard, particularly relevant are provisions of the 1982 UN Convention on the Law of the Sea and the 1995 Agreement on the implementation of the provisions of the 1982 Convention relating to the conservation and management of straddling fish stocks and highly migratory fish stocks. These instruments provide contracting and non-contracting states for obligations relating to the rational exploitation of biological marine living resources of the high seas, there considered as the common heritage of mankind.68 It has been argued that, supported by the treaty practice at both universal and regional levels, a customary international rule, imposing a rational management of resources as well as the duty to cooperate, is emerging in order to protect the collective interest of the international community as a whole.69 The promotion

65 66

67

68 69

not breach any rights accorded to third States on the basis of a general international law; the parties to the treaty consist of all the interested States in the establishment of the régime together with the States that have territorial claims. Cf. Fitzmaurice 2002, p. 123. Cf. 1969 Vienna Convention of the Law of the Treaties, 1155 UNTS 331, Arts. 34-38. For the International Law Commission approach see Fitzmaurice 2002, p. 72. Among supporters of the erga omnes effect of the Antarctic Treaty see P. Birnie, ‘The Antarctic régime and Third States’, in R. Wolfrum (Ed.), Antarctic Challenge II, Duncker & Humblot, Berlin, 1986, pp. 255 et seq. On the contrary, for a critical analysis of this theory see B. Simma, ‘The Antarctic Treaty As a Treaty Providing for an Objective Régime’, Cornell International Law Journal, Vol. 19, 1986, pp. 189 et seq. In this regard Fitzmaurice underlines Malaysia’s disappointment on the Treaty exclusivity, considering that a “handful of states takes decisions which have a bearing on the whole of the international community,” expressed in the 1985 draft resolution at the annual session of the UN General Assembly. Cf. Fitzmaurice 2002, p. 128. See, e.g., Arts. 118 “Cooperation of States in the conservation and management of living resources” and 119 “Conservation of the living resources of the high seas” of the 1982 UN Convention on the Law of the Sea; from the 1995 Agreement on the implementation of the 1982 UNCLOS Part XI: Arts. 8, 17, 21, 23 and 33. A. Del Vecchio, ‘Verso un superamento del diritto del mare dei principi di sovranità territoriale e di inefficacia dei trattati verso i terzi?’, Raccolta “Comunicazioni e studi” dell’Istituto di Diritto Internazionale e straniero dell’Università di Milano, Vol. XXII, 2002, pp. 205-237, at pp. 224-225. See also C. Tomuschat,

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Giulia Nicchia of a rational use of marine biological resources in areas beyond states’ jurisdiction is thus producing erga omnes obligations concerning a well-defined, monitored exploitation of the marine environment.70 If the protection of the (marine) environment is a common interest of mankind, the preservation of the fragile Antarctic ecosystem, whose deterioration is likely to result in harmful effects on the rest of the planet, is supposed to be an overriding global concern, leading to a generally applicable regulation. The liability Annex, providing for a real involvement of third states in the protection of the Antarctic environment, is in line with the current trends of international maritime law. From a practical point of view, because of the specific content of the obligations on the operators’ activities as well as the related burden on operators and states therein foreseen, the implementation of the Antarctic Liability Annex towards third states requires the exploitation of the full potentiality of the “jurisdictional arsenal” arranged in the Antarctic Treaty system.71 23.5.2

Preventative Measures and Response Actions: Who Is Obliged?

Following a quite traditional approach to international law, the Annex addresses its provisions to states, but foresees obligations mainly for operators, defined in Article 2(b) as “any natural or juridical person, whether governmental or non-governmental, which organizes activities to be carried out in the Antarctic Treaty area.”72 States are obligated to require their operators to undertake “Reasonable preventative measures designed to reduce the risk of environmental emergencies and their potential adverse impact”73 as well as to a) establish contingency plans for responses to incidents with potential adverse impacts on the Antarctic environment or dependent and associated ecosystems; and b) co-operate in the formulation and implementation of such contingency plans.74

70 71 72 73 74

‘Obligations Arising for States Without or Against Their Will’, Récueil des cours – The Hague Academy of International Law, Vol. 241, 1993, pp. 195-374. G. Handle, ‘Regional Arrangements and Third States Vessels: Is the Pacta Tertiis Principle Being Modified?’, in H. Ringbom (Ed.), Competing Norms in the Law of Marine Environmental Protection, Kluwer Law International, London, 1997. M. Firzmaurice, ‘Modification to the Principle of Consent in Relation to Certain Treaty Obligations’, Austrian Review of International European Law, Vol. 2, No. 3, 1997, pp. 275-317. A. Del Vecchio, ‘Mare (diritto internazionale del)’, Enciclopedia del Diritto, Vol. II, Aggiornamenti, 1998, pp. 509-525, at p. 522. P. Gautier, ‘L’Annexe VI au protocole de Madrid relative à la protection de l’environnement de l’Antarctique: responsabilité découlant de situations critiques pour l’environnement’, Annuaire Français de droit international, Vol. 52, 2006, pp. 418-431, at p. 424. Ann. VI, 2005, Art. 2, b. Ibid., Art. 3. Ibid., Art. 4.

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23  Environmental Liability in Antarctica Articles 3 and 4 detail the purpose of prevention and what may be considered a ‘preventative measure’, specifying the degree to which states must require operators to take preventative measures. Originally it was fixed at the ‘maximum extent practicable’, but the chosen wording opts for ‘reasonable preventative measures’, reversing the burden of proof from the operator to claimant parties.75 An interesting element is the reference to ‘dependent and associated ecosystems’, which differs from the limited territorial scope of the Annex described in Article 1.76 Furthermore, Annex VI specifies that states are obliged to require their operators to “[t] ake prompt and effective response action to environmental emergencies arising from the activities of that operator,”77 which are defined as “reasonable measures to avoid, minimize or contain the impact of that environmental emergency, which to that end may include clean-up in appropriate circumstances.”78 First, by the definition of response action, it is clear that the provision does not entail an obligation of restoration or restitution; it just refers to remedial measures. The article makes express reference to clean-up operations, there considered as a remedial measure rather than a veritable reparation, raising doubts among scholars. The question has been partially overcome by the UN Compensation Committee for damages caused by the First Gulf War, which included clean-up measures in both categories: prevention and restoration.79 Secondly, as for preventative measures, response action is defined as ‘reasonable’. According to Article 2(e), ‘reasonable’ is a measure: appropriate, practicable, proportionate and based on the availability of objective criteria and information, including: i) risk to the Antarctic environment and the rate of its natural recovery; ii) risks to human life and safety and iii) technological and economic feasibility. Although the reference to ‘technological and economic feasibility’ is a very doubtful criterion, it seems necessary to adopt the interpretation according to which the operator is obliged to take measures “which are at its disposal, are proportionate to the magnitude and the seriousness of the damage.”80 In case of the operator’s failure to take prompt and effective response action, Article 5 encourages, but does not oblige, the party of the failing operator as well as other parties to take such action.81 Other parties are required to notify their intention to the party of 75 D. Bederman & S. Keskar, ‘Antarctic Environmental Liability: The Stockholm Annex and Beyond’, Emroy International Law Review, Vol. 19, 2005, pp. 1383-1406, at p. 1392. 76 Wolfrum & Wolf 2008, p. 171. 77 Ann. VI, 2005, Art. 5. 78 Ibid., Art. 2(f). Cf. Wolfrum & Wolf 2008, p. 171. 79 Gautier 2006, p. 426. 80 Wolfrum & Wolf 2008, p. 172. 81 Ann. VI, 2005, Art. 5,2.

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Giulia Nicchia the operator as well as to the Secretariat of the Antarctic Treaty except in case of imminent harmful impact to the environment where an immediate response is needed to preserve the environment.82 23.5.3

Liability Regime: Mixing Strict and Fault-Based Models

The liability regime elaborated by Annex VI is mixed, including elements of strict (operators’ liability) and fault-based (state responsibility) models. The operator that fails to carry out prompt and effective response action to environmental emergencies is subject to a strict liability regime. Different hypotheses are elaborated in the case that the failing operator is governmental or non-governmental, and whether or not a response action was undertaken. Provisions in this connection are rather clear. As for a private operator, it is liable to “pay the costs of response action taken by parties pursuant to Article 5(2) to such Parties.”83 Operators are thus obliged to compensate states that undertook response action, which can be assimilated as injured parties. Disputes concerning reimbursement will be decided by national courts. The party that undertook the response action can bring an action before the court of the party of origin (where the operator is incorporated, where it has its principal place of business, where it organizes its activities) of the failing operator.84 Each party is required to “ensure that its courts possess the necessary jurisdiction” to entertain these kinds of actions.85 Similarly, state operators that fail to take response actions are liable to pay the costs of the actions to the parties that carried them out. According to Article 7,4, disputes arising between state parties have to be arranged by the dispute settlement procedure of the Protocol on Environmental Protection, which includes negotiations, inquiry, mediation, conciliation and, lastly, arbitration.86 A much more problematic scenario occurs when no response action is undertaken, and thus questions emerge on how to deal with unrepaired environmental damage. Even in this case it is necessary to distinguish between state and private operators. In the event that no response action is undertaken, the private operator is liable to pay “an amount of money that reflects as much as possible the cost of the response action that should have been taken.”87 Private operators must compensate for environmental damage if response action was not taken, transferring the amount into the special fund established by Article 12 and to the party entitled to the payment enforcement. The latter has to “make 82 83 84 85 86 87

Ibid., Art. 5,3(a). Ibid., Art. 6,1. Ibid., Art. 7,1. Ibid., Art. 7,2. Supra, note 50. Ann. VI, 2005, Art. 6,2(b).

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23  Environmental Liability in Antarctica best efforts to make a contribution to the fund referred to in Article 12 which at least equals the money received from the operator.”88 The state of origin is required to “ensure that there is a mechanism in place under its domestic law for the enforcement of Article 6(2)(b).”89 On the contrary, when the operator is governmental, in the event that no response action was undertaken, it is liable to pay the costs of the response action that should have been undertaken into the fund established at Article 12. The reimbursement is decided by consensus in the framework of the ATCMs. Considering that the failing state participates in the decision-making process and the procedure is rather ineffective, the failing state can easily veto the amount that it is supposed to pay. Annex VI also provides, at Article 8, for a list of five exemptions from liability. There is no liability if the environmental emergency was caused by an act or omission necessary to protect human life or safety; by an event, which could not have been reasonably foreseen, constituting a natural disaster of exceptional character; by an act of terrorism; by an act of belligerency against the activities of the operator or, lastly, from reasonable response action taken by an operator pursuant to the rules of the Annex. The article provides, then, for typical exemptions from liability. However, the exemption for an act of terrorism is rather new and refers to a broad notion of ‘terrorism’, which has no specific definition in the Annex itself. The liability Annex elaborated a very sophisticated system for deciding who is obliged to take response action. Under such provisions, the operator is obliged to take such actions as well as preventative measures. Nevertheless, the state of origin has the commitment to oblige its operator to fulfil requirements under Articles 3, 4 and 5.90 While the failure to take prompt and effective response action entails a strict liability regime for the operator, the state is internationally responsible only if it fails in requiring its operators to undertake reasonable preventative measures (Art. 3), establishes contingency plans (Art. 4) and takes over prompt and effective response (Art. 5). It means that a state is responsible in the event of breach of international obligations descending from the ­Madrid Protocol ex Article 13,1 (prevention, precaution and due diligence); specifically, it has the duty to undertake all the steps necessary to prevent environmental harm. 88 Ibid., Art. 12 details functioning of the Fund established by the Annex. Consistent with Art. 2(1), the Fund has to be administrated by the Secretariat of 1959 Antarctic Treaty, but all material decisions concerning payments are made by the Antarctic Treaty Consultative Meetings, after consultation with Commission on Environmental Protection. Payments to the fund are made of penalties ex Art. 6(2) as well as voluntary contributions (Art. 12,4). Reimbursement is subject to ATCM approval and is foreseen in specific cases listed in Art. 12,3. 89 Ibid., Art. 7,3. 90 In Art. 2(d), it is specified that the state of origin of an operator can be the Party where it has its legal address or the State in charge of authorizing its activities in the Antarctic region. In other words, since the State submits to its control activities carried on in Antarctica, it is subject to the obligations of the Annex. This introduces a relativism based on national legislation.

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Giulia Nicchia The failure of a state in these terms entails a fault-based responsibility regime, and state responsibility is expressly excluded when, following the failure of an operator to take response action, the party “took appropriate measures within its competence to ensure the adoption of laws and regulations, administrative actions and enforcement measure, to ensure compliance with the Annex.”91 To conclude, Annex VI on environmental liability presents innovative elements. It specifies obligations for operators and implementation as well as enforcement procedures. All parties may take responsive actions to environmental emergencies and ask for reimbursement. The provisions underline the common interests of state parties to the preservation of the Antarctic environment: any state party can invoke liability regime for the state operator that fails to undertake response actions and thus act in the interest of all beneficiaries of the violated obligation.92 23.6 The Implementation Challenge and the Italian Legal System The final test of the Annex effectiveness lies, arguably, in its implementation, meant as the process of putting international commitments into practice by means of passage of legislation, creation of institutions (both domestic and international) and enforcement of rules.93 Implementation is a critical step towards states’ compliance; nevertheless, it has been stressed that compliance can even occur without implementation. If an international commitment, for instance, responds to current practice, compliance can be automatic.94 This is not the case with Annex VI, which introduces innovative elements in the context of current international liability regime and provides states for not self-executing obligations. Thus, for most countries several efforts will be required to implement the Annex and to comply with the international law. On the one hand, the way in which international norms are integrated in the domestic legal order is regulated by the law of each state. On the other, the outcome of the ratification process affects the state’s position in international law: once the international norm is part of the national legal system, states are required to fulfil the obligations therein settled, and they will be responsible if they do not.95 According to Articles 26 and 27 of the 1969 Vienna Convention on the Law of the Treaties, a state must indeed observe in good faith 91 Ann. VI, Art. 10. 92 Gautier 2006, p. 431, n. 33. 93 E. Geddis, ‘Liability for Environmental Emergencies in Antarctica’, New Zealand Yearbook of International Law, Vol. 3, 2006, pp. 201-206, at p. 204. 94 In this regard, see K. Raustiala & A. Slaughter, ‘International Law, International Relations and Compliance’, in W. Carlnaes, T. Risse & B. Simmons (Eds.), The Handbook of International Relations, Sage, London, 2002, pp. 539-584. 95 See S. Marchisio, ‘The Implementation of the Madrid Protocol in the Italian Legal System’, in G. Tamburelli (Eds.), The Antarctic Legal System and Environmental Issues, Giuffré, Milano, 2006, pp. 147-163, at p. 148.

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23  Environmental Liability in Antarctica treaties in force binding upon them and they “may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”96 Moreover, from the perspective of strengthening the environmental protection in ­Antarctica, implementation of Annex VI is of the utmost importance. In the absence of an international organization that can ensure the correct application of the rules under the Madrid Protocol and its Annexes, and, therefore, in the absence of an international institutional mechanism in situ to monitor compliance, the effective guarantee of descending obligations relies on the ATCMs, on the Commission for Environmental Protection and, above all, on the diligent implementation work of the contracting parties.97 At the domestic level, it will be necessary to elaborate specific procedures and guidelines for assessing environmental emergencies, to enforce provisions concerning insurance and other financial security as well as to create a mechanism to enable governments to collect the costs of failed response action and then to transfer them into the compensation fund. It is thus difficult to predict how many years this process will last as well as when the Annex will effectively come into force. The Annex, in fact, will enter into force when all consultative parties will have adopted the instrument according to their national rules and procedures on ratification of international treaties. It is rather ironic that ratification of Annex VI, aimed at enhancing the environmental protection in Antarctica, is still pending in those countries that challenged and shelved the Wellington Convention because it failed to address environmental concerns, permitting mining activities in the covered region. Among those consultative parties, Italy plays a prominent role. A full member of the Antarctic Treaty system, contracting party of the Washington Treaty since 1981,98 of the Canberra Convention on the conservation of Antarctic living resources,99 of the Convention for conservation of Antarctic seals,100 Italy is among promoters and supporters of the establishment of an environmental protection regime in Antarctica. During the contestation of CRAMRA, the Italian Parliament issued a resolution recommending a responsible use of Antarctica’s natural resources as well as prohibiting mineral exploitation activities. Similarly, Italy participated in the negotiations of the Madrid Protocol welcoming the insertion of Article 16 dedicated to the future establishment of the setting up of a liability regime for environmental emergencies in Antarctica. Within this general framework, the Italian Parliament authorized the ratification of the Madrid Protocol in 1995.101 Consistent with provisions pursuant to Articles 87 and 80 of 96 1969 Vienna Convention on the Law of the Treaties, 1155 UNTS 331, Art. 27. 97 See F. Francioni, ‘L’attuazione internazionale del Protocollo di Madrid’, in S. Marchisio & G. Tamburelli (Eds.), L’evoluzione del sistema Antartico, Giuffré, Milano, 2001, pp. 17-32. 98 Legge n. 963/ 1980, Official Journal of the Italian Republic No. 17, 19 January 1982, Supplemento Ordinario. 99 Legge n.17/1989, Official Journal of the Italian Republic No. 23, 28 January 1989, Supplemento Ordinario n. 6. 100 Legge n. 149/1991, Official Journal of the Italia Republic No. 108, 10 May 1991, Supplemento Ordinario n. 32. 101 Legge n.54/1995, Official Journal of the Italian Republic No. 48, 27 February 1995, Supplemento Ordinario n.27.

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Giulia Nicchia the Italian Constitution, the procedure involving legislature was necessary since the Protocol has a political nature and entails the possibility of international arbitrations as well as extraordinary financial burden. Simultaneously, the Parliament issued the ‘executive order’ – according to Article 2 of the authorization law – which expressed the political willingness to give ‘full and complete execution’ to the Protocol since its entry into force, ordering all concerned subjects to complete implementation of the treaty into the Italian legal system. As far as the Italian implementation is concerned, further legislation has been considered unnecessary: the technical report to the draft bill for the ratification and the implementation of the Protocol on Environmental Protection in Antarctica stated that the national legal system was already consistent with the obligations deriving from the Protocol. They were, in fact, already satisfied within national programmes for scientific and technical research in Antarctica.102 Moreover, the report on the implementation of the Protocol on Environmental Protection to the Antarctic Treaty, presented by Italy to the XXIII Meeting of the Consultative Parties, stressed that major steps were the institution of the National Research Programme in Antarctica (PNRA)103 as well as the establishment of the ENEA-Antar, the Antarctic unit of the Italian National Agency for new Technologies, Energy and sustainable economic development in charge of the implementation of national research programmes in Antarctica. By means of ENEA-ANTAR work, Italy put the Protocol into provisional application before its entry into force. The same report underlines that, especially for the future implementation of legislation, Italy established an Antarctic Unit at the Italian Ministry of Foreign Affairs. The latter, including representatives from the Ministry for the Environment, the Ministry for Instruction and University and ENEA, is in charge of monitoring the implementation of the Protocol into domestic law, and of formulating draft law to ensure the adequate implementation of the Protocol in sectors where national legislation is poor. As it has been stated, further implementation is a necessary step to solve potential conflict between the Madrid Protocol (and its Annexes) and other international agreements contracted by the Italian Government. Considering that the Antarctic system is not the only international instrument governing in detail specific issues such as the conservation of living resources, marine protection and waste management, the Washington Treaty provides that members have to find the most effective measures to implement the provisions consistent with other international agreements.104

102 Legge n. 380/1991, Official Journl of the Italian Republic No. 282, 2 December 1991. 103 Legge n.284/11985, Official Jounal of the Italia Republic No. 145, 21 June 1985. 104 In this regard, see P. Vigni, ‘L’attuazione del Protocollo di Madrid da parte dell’Italia ed il rispetto di altri obblighi internazionali convenzionali’, in S. Marchisio & G. Tamburelli (Eds.), L’evoluzione del sistema antartico, Giuffré, Milano, 2001.

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23  Environmental Liability in Antarctica In this general context, Annex VI on liability arising from environmental emergencies, arguably, will deeply challenge the Italian Antarctic Unit. An executive order will not be sufficient, and the implementation of Annex VI will need specific legislation in order to ensure full compliance with the Italian legal system. 23.7 Concluding Remarks Despite its several limitations, Annex VI on liability for environmental emergencies in Antarctica responds to the questions posed at the beginning of the present discussion: who is liable? How to quantify the damage? How to identify a claimant? As we have noted, the text approved at the XXVIII ATCM, falls short of the initial thrust of the consultative parties geared essentially to the establishment of a comprehensive liability regime for environmental damage. It rather opts for a narrow approach and provides for ‘soft commitments’.105 However, upon careful examination of the text, it is clear that liability applies to any operator, governmental or non-governmental, which fails in undertaking prompt and effective response actions, while states are responsible for violating their international obligations of prevention, precaution and due diligence. States are also specifically responsible if they do not require their operators to adopt measures for the prevention and contingency plans in case of environmental emergency in the Antarctic area. Moreover, the problem of quantification of damage is solved by fixing the amount of compensation due to the cost of response actions undertaken by state parties or which should have been taken, in case no action is implemented. Lastly, only parties that take response actions are eligible to claim a loss or, more specifically, are entitled to apply for reimbursement of costs incurred. If no response action is undertaken, the operator must compensate for environmental damage, paying the fund an amount equivalent to the cost of the response action not implemented. As mentioned above, the Annex is just the first step, and consultative parties decided to postpone further shaping of a comprehensive liability regime. Ten years since the adoption of the Annex, in fact, negotiations will be resumed in order to “to elaborate additional rules and procedures as may be necessary relating to liability for damage arising from activities taking place in the Antarctic Treaty area and covered by the Protocol.”106 All the while, consultative parties agreed in monitoring annually the efforts made in order to make effective the Annex and evaluate “what action may be necessary and appropriate to encourage Parties to approve Annex VI in a timely fashion.”107

105 Bederman & Keskar 2005, p. 1404. 106 Decision 4 (2010) – ATCM XXXIII – CEP XIII, Punta del Este, 15 May 2010. 107 Ibid.

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Giulia Nicchia To conclude, considering the importance of the Antarctic ecosystem for the whole planet and the irreversible character of most kinds of environmental damage, the value of the liability regime settled in Annex VI lies in the ability not only to fix compensation mechanisms but also rather to prevent accidents that have a detrimental impact. In this regard, Annex provisions concerning contingency planning and preventative measures are supposed to play a significant role in further protecting the Antarctic environment.

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Index A

Achille Lauro, 104, 110, 112 Action Plans for sub-Saharan Africa, 64 African Union Mission in Somalia (AMISOM), 143, 149 Amoco Cadiz (accident), 213, 251 Antarctic Treaty Consultative Meeting (ATCM), 414 Antarctic Treaty System (ATS), 356, 380, 414, 416, 417, 420, 421, 422, 427 Arctic Council, 352, 358, 359, 364, 365, 366, 382

B

Biological, Chemical and Nuclear (BCN) Weapons, 114 Biological damage, 253, 257 Biomass (for energy purposes), 275, 276, 277, 278, 279

C

Canary Islands, 29, 40, 41, 42, 45, 46, 47, 49, 50, 59, 60, 63, 64, 65, 67, 68, 70, 74 Civil liability, 237, 239, 240, 241, 244, 245, 248, 250, 251, 252, 256, 259, 263, 270, 412 Commission on the Limits of the Continental Shelf, 285, 359, 365, 396, 399 Common deposits (of mineral/natural resources), 282, 294, 295, 296, 299, 300, 305, 309, 311 Contiguous Zone, 62, 65, 66, 67, 70, 72, 73, 74, 80, 88, 119, 120, 286 Continental shelf, 65, 104, 281, 282, 283, 284, 285, 286, 293, 296, 297, 301, 303, 304, 310, 311, 313, 346, 348, 359, 360,

365, 387, 388, 389, 390, 395, 396, 397, 398, 399, 400, 401 Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 89 Convention for the Conservation of Antarctic Seals (CCAS), 361, 414 Convention on Biological Diversity (CBD), 366, 381 Convention on Facilitation of International Maritime Traffic (FAL), 23 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), 361, 381 Convention on the International Regulations for Preventing Collisions at Sea (COLREG), 238 Convention on the Limitation of Liability for Maritime Claims the amending protocol, 240 Convention on the Regulation of Antarctic Mineral Resources Activities (CRAMRA), 361, 414 Council Directive 95/21/EC, 214, 215, 336 Council Directive 1999/63/EC, 336, 337, 338 Cultural and Biological Diversity, 371

D

Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State, 215, 336 Directive 2009/21/EC of the European Parliament and of the Council of 23 April 2009 on compliance with flag state requirements, 215

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Index Freedom of navigation (principle of), 17, 80, 86, 120, 123, 125, 170, 206, 207 Frontex Agency, 9

Disputed areas, 281, 283, 297, 309, 312, 313, 314, 315, 316, 398

E

Environmental damage, 254, 255, 259, 263, 385, 387, 406, 409, 410, 412, 413, 414, 415, 417, 419, 424, 429, 430 Environmental emergencies, 417, 418, 419, 422, 423, 424, 426, 427, 429 Environmental liability, 263, 405, 409, 410, 411, 413, 418, 426 Environmental protection, 211, 214, 256, 339, 348, 349, 351, 361, 364, 367, 373, 381, 382, 383, 402, 405, 412, 413, 414, 415, 416, 418, 427 Equivalent protection (principle of), 333 Erika (accident), 207, 239, 251, 266, 268 European Committee for the prevention of torture and other inhuman or degrading treatments (CPT), 31 European Court of Human Rights (ECtHR), 31, 78, 333 European Maritime Safety Agency (EMSA), 216 European Naval Force Somalia – Operation ATALANTA (EU NAVFOR – ATALANTA), 193 EU-Turkey Readmission Agreement, 35 Exclusive Economic Zone, 65, 120, 121, 194, 206, 241, 242, 281, 320, 334, 348, 359, 374, 387, 389, 400, 403 Exploitation of mineral/natural resources, 297, 298, 312, 394

F

Fishing activities, 195, 389, 395, 419 Food and Agriculture Organization (FAO), 319

G

General Assembly Resolution 3129, 291, 310 Geneva Convention of 7 February 1986 on Conditions for Registration of Ships, 208 Geneva Convention of 9 December 1923 on the International Regime of Maritime Ports, 210 Global warming, 343, 345, 346, 347, 356, 360, 385 Good faith, 292, 295

I

Ice-covered areas, 380 Ilulissat Declaration, 348, 351, 353, 365, 387 Indigenous peoples (Rights of), 343, 364, 366, 367, 373, 376 International Convention for the Prevention of Pollution from Ships (MARPOL), 238 International Convention for the Safety of Life at Sea (MARPOL), 238, 366 International Convention for the Safety of Life at Sea (SOLAS), 111 International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunker Convention), 240 International Convention on Civil Liability for Oil Pollution Damage (CLC) or Brussels Convention on Civil Liability for Oil Pollution Damage, 239, 260, 261 International Convention on Search and Rescue at Sea (SAR), 12

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Index International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention), 239, 261 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 260 International Covenant on Civil and Political Rights, 17, 89 International Labour Organization (ILO), 319, 329 International Maritime Bureau, 147, 168 International Maritime Organization (IMO), 11, 62, 83, 103, 112, 168, 198, 200, 212, 238, 260, 319, 366 International Organization for Migration (IOM), 39, 96 International Tribunal for the Law of the Sea (ITLOS), 177, 284, 334 Irregular Migration by Sea, 9, 10, 18, 27, 29, 44, 55, 57, 59, 69 Italian Maritime Rescue Coordination Centre, 52

M

Marine Safety Committee (MSC), 368 Maritime labour, 319, 329, 330, 333, 334, 336, 337, 338, 339 Maritime Labour Convention (MLC), 322, 329, 338 Maritime Safety Committee (MSC), 104, 216 Maritime Security, 104, 105, 109, 111, 118 Microalgae, 275, 276, 277, 278, 279 Mineral deposit clause, 299, 304

N

New Inspection Regime, 214, 216

Non-Refoulement (principle of), 9, 18, 43, 55, 56, 86, 87, 88, 95, 96, 98 North Atlantic Treaty Organization (NATO), 52, 126, 387 North Sea continental shelf (ICJ judgment), 297, 310, 312, 313

O

Oil industry, 241, 244, 245, 248, 251, 257, 268, 270, 271 Oil pollution, 238, 252, 256 Oil Pollution Act (OPA), 241, 262

P

Palermo Protocol on Migrant Smuggling, 81 Polar Code, 360, 368, 370 Polluter pays principle, 245, 262, 263, 264 Port State Control, 205, 210, 212, 324, 328, 336, 338 Prestige (accident), 251 privately contracted armed security personnel (PCASP), 196 Privately Contracted Armed Security Personnel (PCASP), 191 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol/ PEPAT), 381 Protocol to the Bunker Convention establishing an International Oil Pollution Compensation Supplementary Fund, 240 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 110

R

Registrations of convenience (ships’), 209 Rule of capture, 294, 295

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Index

S

Safety of Navigation, 103, 104, 112, 113, 115, 172, 209 Schengen Borders Code, 13, 14, 25, 93, 94, 95, 96, 97, 98 Search and Rescue Areas, 83, 106 Ship-Boarding Procedures, 124 Shipping industry, 142, 196, 252, 253, 257 Small Tanker Oil Pollution Indemnification Agreement (STOPIA), 253, 270 Soft law, 310, 351, 353, 359, 384 Sovereignty (claims of, problems of, 314 Sovereignty (claims of, problems of), 283, 284, 288, 356, 358, 360, 361, 363, 367, 381 strict liability, 264, 265, 267 Strict liability, 244, 245, 248, 250, 252, 257, 262, 412

T

Tanker Oil Pollution Indemnification Agreement (TOPIA), 253, 270 Torrey Canyon (accident; oil tanker), 207, 260, 270

Transboundary/shared natural resources, 289, 290, 291 Treaty of Non-proliferation of Nuclear Weapons (NPT), 115

U

UN Charter of Economic Rights and Duties of States, 292, 310, 316 UN Convention on the Suppression of Unlawful Acts Against Maritime Navigation (SUA), 110 United Nations Conference on the Human Environment, 291 United Nations High Commissioner for Refugees (UNHCR), 18, 32, 87 UN Office on Drugs and Crime (UNODC), 138

V

Vessel Protection Detachment (VPD), 131, 191, 197 Vienna Convention on the Law of the Treaties, 426

W

Washington Treaty, 358, 414, 427, 428

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