This study examines how the work of the International Law Commission (ILC) has contributed to the ‘progressive development’ of general international law relevant to regulating rescue and disembarkation of refugees and migrants found at sea. It explores the ILC’s texts on interpretation and implementation of international obligations, state responsibility, fragmentation and harmonization of international law, and the status of certain principles of general international law, including jus cogens general principles of law and the principle of good faith, which present legal parameters for regulation of maritime search and rescue operations. In conducting doctrinal examinations of international law and gathering evidence of the practice of States and other relevant actors, the ILC contributes by analysing, clarifying, and systemising important topics of general international law. However, state implementation frequently falls short of the legal interpretations of the ILC, particularly as they relate to respect for and protection of human rights at sea. Therefore, while the ILC needs new strategies to directly connect with States and international organisations, it remains reliant on the mutual following of national and international courts and tribunals, and its mutual contribution in scholarship.
This study examines how the work of the International Law Commission (ILC) has contributed to the ‘progressive development’ of general international law relevant to regulating rescue and disembarkation of refugees and migrants found at sea. It explores the ILC’s texts on interpretation and implementation of international obligations, state responsibility, fragmentation and harmonization of international law, and the status of certain principles of general international law, including jus cogens general principles of law and the principle of good faith, which present legal parameters for regulation of maritime search and rescue operations. In conducting doctrinal examinations of international law and gathering evidence of the practice of States and other relevant actors, the ILC contributes by analysing, clarifying, and systemising important topics of general international law. However, state implementation frequently falls short of the legal interpretations of the ILC, particularly as they relate to respect for and protection of human rights at sea. Therefore, while the ILC needs new strategies to directly connect with States and international organisations, it remains reliant on the mutual following of national and international courts and tribunals, and its mutual contribution in scholarship.
Purpose— The article presents a commentary on the case Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), aiming to deliver a comprehensive summary of the case and general commentary on the most relevant claims and the procedural history. Design, Methodology, Approach— The article comments on the case following a procedural structure, explaining the principal factual and jurisdictional issues, the application presented by Nicaragua, the preliminary exceptions, and the counterclaims presented by Colombia during the jurisdictional phase of the case leading to the judgment on jurisdiction in 2016, and the decision on the merits rendered by the Court in 2022. Findings— The commentary highlights the difficulties raised before the ICJ when entertaining the admissibility of counterclaims, and studies the factual pattern that led to Nicaragua’s application as a manifestation of a conduct of resistance to international courts and tribunals. Practical Implications— The article may provide readers with in-depth knowledge of recent litigation that is relevant to the law of the sea but also the authority of the ICJ and the effectiveness of its judgments. Originality, Value— The article is one of the few case commentaries on the procedural history and legal claims before the ICJ in this very recent case that was decided by the Court in 2022.
Highly reliable situation awareness is a main driver to enhance safety via autonomous technology in the marine industry. Groundings, ship collisions and collisions with bridges illustrate the need for enhanced safety. Authority for a computer to suggest actions or to take command, would be able to avoid some accidents where human misjudgement was a core reason. Autonomous situation awareness need be conducted with extreme confidence to let a computer algorithm take command. The anticipation of how a situation can develop is by far the most difficult step in situation awareness, and anticipation is the subject of this article. The IMO International Regulations for Preventing Collisions
at Sea (COLREGS), describe the regulatory behaviours of marine vessels relative to each other, and correct interpretation of situations is instrumental to safe navigation. Based on a breakdown of COLREGS rules, this article presents a framework to represent manoeuvring behaviours that are expected when all vessels obey the rules. The article shows how nested finite automata can segregate situation assessment from decision making and provide a testable and repeatable algorithm. The suggested method makes it possible to anticipate own ship and other vessels’ manoeuvring in a multi-vessel scenario. The framework is validated using scenarios from a full-mission simulator.
Given the move toward automation, an increased focus on the liability for technical defects must be anticipated. This brings into play liability regimes that have traditionally been less used in the maritime area. One of these liability regimes is product liability. It is the purpose of this contribution to examine the implications of product liability rules in the maritime area, seen in light of the automation of ships.
The EU Green Deal calls for a rapid and efficient green transition. On-going climate change and an increasing need for secure and sustainable energy means ambitious projects and goals are accelerated. To expand and exchange offshore wind energy across North Sea neighbouring countries, the Danish government presented in 2020 the Danish North Sea Energy Island (NSEI) project. This pilot project illustrates the shift from ‘nationally individualistic’ modes of connecting offshore wind energy projects, to supplying a multi-lateral renewable offshore energy grid. The Energy Island project builds on the Hub-and-Spoke (H&S) approach, which introduces a new level of complexity to governing the next generation of offshore wind energy projects. This paper analyses the political motivations for the Danish project and the planning and implementation of the Energy Islands, integrating a combination of collaborative and transboundary governance perspectives. The qualitative analysis is based on a document analysis and a literature review. Findings show how planning for the Danish Energy Island has faced delays and challenges, causing uncertainties about the Island’s capability to support Green Deal goals, as well as a mismatch between political ambitions and practical implementation. The artificial offshore island is currently under reconsideration due to costs and is, as of March 2024, still in its planning phase. This case study on the Danish NSEI serves as an introduction to the general functionalities and development of the Island and defines a Danish Energy Island. Results indicate that the combination of transboundary and collaborative governance structures are necessary as part of a successful implementation of Energy Islands.
The existence of a sense of common or community interests is a prerequisite to establishing an order in a society, national or international. In this connection, it is notable that the protection of community interests is increasingly important in international law and the law of the sea is no exception. The increasing need for protecting community interests necessitates a new paradigm in the law of the sea. The legal issues regarding the marine Arctic should also be considered in the context of changing paradigms in the law of the sea. Thus this article seeks to overview principal issues of the international law governing the marine Arctic from the viewpoints of a dual paradigm, that is, the law of divided oceans (paradigm I) and the law of our common ocean (paradigm II).
This edited volume examines the continued viability of international human rights law in the context of growing transnational law enforcement. With states increasingly making use of global governance modes, core exercises of public authority such as migration control, surveillance, detention and policing, are increasingly conducted extraterritorially, outsourced to foreign governments or delegated to non-state actors.
New forms of cooperation raise difficult questions about divided, shared and joint responsibility under international human rights law. At the same time, some governments engage in transnational law enforcement exactly to avoid such responsibilities, creatively seeking to navigate the complex, overlapping and sometimes unclear bodies of international law. As such, this volume argues that this area represents a particular dark side of globalisation, requiring both scholars and practitioners to revisit basic assumptions and legal strategies.
The volume will be of great interest to students, scholars and practitioners of international relations, human rights and public international law.
The costs of buying tonnage – whether new built or second hand – are so high that most Owners will need the assistance of Financers in order to be able to make the purchase. This raises several legal questions regarding ship’s finance. This article will provide a discussion of certain aspects of ships’ finance under Danish Law relevant to the charterparty trade.
The factual starting point for the paper is that a vessel is working in or intended to work in the charterparty trade, most particularly under long term time charterparties or Contracts of Affreightment. In such a situation, we find a tri-party relationship between the Financers, the Owners and the Charterers. When things are well, the interests of these three parties are on a par. The Charterers wish to use the vessel in order to make a profit, enabling them to pay the Owners. The Owners, receiving the hire or freight, are able to pay the crew, maintain the vessel and pay the Financers. However, the moment the financial stability of the Owner or the Charterer is threatened, the three parties will tend to have conflicting interests. The Financers, if unpaid, may wish to sell the vessel in order to cover at least some of their losses. The Charterers may wish to continue the use of the vessel, which may be inconsistent with a (forced) sale. Alternatively, the Charterers may wish to be freed of their obligations under the charterparty if the Owner enters into receivership or other types of insolvency proceedings. They may not be comfortable with e.g. having the Owners estate in bankruptcy running the vessel. And ultimately the Owners estate may wish to reconstruct the company in order to stay in business, for which end keeping the vessel as an asset and the income flowing from a (continued) charterparty may be a precondition.
The paper will discuss the problem with the starting point in Danish law on the subject, and investigate whether Danish law is apt to protect the conflicting interests of the three parties. However, the paper will make comparisons to other laws, mainly English law and Norwegian law. Also, the paper will discuss the general problems with the definitions of how a working vessel should generally be considered in the eyes of the law (is it simply any piece of chattels or is it more akin to a whole production facility?) and as well as whether the service provided by both owners and charterers under a charterparty should be considered personal or generic. Thus, although the paper uses Danish law as a starting point, it provides points of discussion of more general interest.
The paper ultimately concludes that Danish law does provide an adequate protection and balancing of the interest of the parties, but that uncertainties and the general inaccessibility of the law must be considered to restrict its use to the full – to the detriment of market interests.
Irregular migration by sea leads states such as Italy and Australia to conduct maritime rescue operations involving refugees and other migrants. During these operations, states must deal with the question of where to disembark survivors. The law of the sea regime obliges states to ensure survivors are delivered to a 'place of safety', arguably requiring maritime officers to merely consider the physical safety of survivors immediately on disembarkation. Non-binding International Maritime Organization guidelines state that the need to avoid disembarking refugees and asylum-seekers in the states of departure or origin is also a consideration. The guidelines refer to other 'relevant' international law, including treaties dealing with 'refugee refoulement' or refoulement in connection with a risk of torture. Under the international human rights law regime, including international refugee law, states' obligations in relation to non-refoulement are broader and prohibit the return of refugees and migrants to states where they directly or indirectly face persecution, torture or other serious harm. In interpreting 'place of safety', this work argues that there is insufficient consensus to integrate the two legal regimes. Nevertheless, states can be under co-existing human rights obligations that place limits on the disembarkation of rescued refugees and migrants.