As we straddle the 40th Anniversary of the United Nations Convention on the Law of the Sea (UNCLOS) and the 50th Anniversary of the International Convention for the Prevention of Pollution from Ships (MARPOL), State and academic attention re-focuses on tackling marine pollution. Indeed, an ITLOS Advisory Opinion concerning Part XII will likely address MARPOL’s incorporation through the UNCLOS ‘rules of reference’. Time is thus ripe to explore the less trodden and more fluid provisions in Part XII of UNCLOS. This post reflects on Article 228(1) of UNCLOS, which preserves the primacy of flag State enforcement concerning extraterritorial vessel-source pollution. Flag States are granted a right to pre-empt certain infringement proceedings brought by port States or coastal States against their vessels if conditions are met and neither of two limitations applies. Let us focus on the second limitation, namely the loss of flag State pre-emption when the flag State “has repeatedly disregarded its obligation to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels”. How do we assess and…
UNCLOS
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The Competence of the International Tribunal for the Law of the Sea in its New Advisory Proceedings on Climate Change
On the sidelines of last year’s COP26, Antigua and Barbuda and Tuvalu concluded the Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law (‘the Agreement’ establishing ‘the Commission’). The Agreement is open to signature by all 39 members of the Alliance of Small Island States, and currently also includes…
Violations of Sovereign Rights at a Foreign EEZ: Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia)
On 21 April 2022, the International Court of Justice (ICJ) delivered judgment in the Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) case. Nicaragua instituted proceedings against Colombia regarding, among others, (1) Colombia’s interference with fishing and marine scientific research (MSR) activities of Nicaraguan-flagged or Nicaraguan-licensed vessels in Nicaragua’s EEZ…
China as a Maritime Power and the Interpretation of Innocent Passage
Maritime powers have been instrumental in shaping the development of the Law of the Sea (LoS). While not uncontested, their inclusion and interpretation of key concepts into the LoS become dominant over time. As a result, expectations increase for other states to accept these or risk being cast as counter-normative actors. Nevertheless, the dominant interpretation of…
UK UNCLOS Inquiry: Is UNCLOS Fit for Protecting Human Rights at Sea? A Comment
One of the most contemporary challenges international law is facing today is protecting, monitoring, and enforcing human rights at sea. A recently launched House of Lords Inquiry in the United Kingdom examining the UNCLOS applicability in the 21st century is asking amongst other questions, how to address the contemporary challenge of monitoring and enforcing human rights law…
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