The 1982 United Nations Convention on the Law of the Sea (UNCLOS) has for four decades been considered by many to be one of the most important legislative achievements of international law. It is revered as a “constitution of the oceans”, providing the legal framework for the governance of the oceans. This volume explores how the UNCLOS is functioning in various complex settings, how it adapts to new, emerging developments, as well as how it interacts with other regulations, both within the law of the sea regime and outside. Engaging in themes such as law and order at sea, UNCLOS' interaction with human rights and the role of private actors, the book raises complex questions in the application, understanding, and enforcement of the convention and how it can be envisaged, interpreted, and used in a dynamic world. The volume also raises methodological questions, the answers to which may enhance the predictability and coherence of the law under UNCLOS and thus secure its role as the predominant and relevant system for legal governance at sea for many decades to come. As a contribution to ensuring the future relevance of UNCLOS, the book will be a valuable resource for scholars, diplomats, judges and other practitioners who are working with and interpreting the law of the sea and related issues of maritime law, migration law, human rights law and humanitarian law.
This article discusses the role of private regulators within the international legal framework of Arctic shipping. The role of private actors has been acknowledged both in legal scholarship and policy papers; but it has not yet been placed in the centre of attention. This article does so by analysing the role of private actors under the Polar Code and three types of private regulation — guidelines of classification societies, requirements of insurance industry and private contracting. It concludes that private actors have an essential role both in developing and effectuation of public international law and thus in achieving sustainable Arctic shipping.
In seeking to fulfill its mission, the International Maritime Organization (IMO) is dependent on the capabilities of its Member States. While flag States remain primarily responsible for ensuring compliance of their registered vessels with instruments adopted under that United Nations specialized agency's aegis, coastal States also play a competing but complementary role in the balance of jurisdiction over ships. In particular, the right to regulate the vessel's intent on visiting the port, or its presence therein, is often relied upon to account for the limitations of flag State enforcement. The capacity to act as a port State under international law is the basis for certain implementation mechanisms stemming from treaty provisions on port state control, as well as for innovative practices of port States, either collectively or individually. This chapter provides the reader with an overview of the role of port State jurisdiction in IMO law and practice, and the challenges that can arise in the complex relationship between port States and the IMO.
The capacity to act as a port state in international law is best described by the specific powers exercised over foreign ships, namely inspection, detention, expulsion or request of any type of information prior to the entry into the port. Many of these powers are explicitly attributed to the state in multilateral instruments, whereby the flag state consents to having its ships subject to the jurisdiction of the port state. Notwithstanding the consensus around the complementary nature of port state jurisdiction with respect to certain obligations of the flag state, the port state is not limited to fulfilling a secondary role. This is especially visible in the prevention, reduction and control of ship-source pollution, where some port states have not hesitated in acting regardless of an expressed consent by the flag state to the rule or standard being applied with the support of port powers. Not only do port states use more stringent enforcement powers to ensure that international treaties are effective, but they also prescribe novel rules and standards upon any foreign ship that approaches the port, often as a means of breaking an international negotiation deadlock. This study discusses the international legal basis for such unilateral jurisdiction by analyzing the principles of state jurisdiction under the dichotomy parochial/cosmopolitan. By interpreting the stated and implicit purposes of port state actions under that dichotomy, this study proposes that states are finding a legal ground to act based on certain legal functions they fulfill in the international legal order. This argument puts into perspective the assumed self-sufficiency of territoriality and shows how unilateralism may also serve to seek to set universally applicable norms.
This paper discusses the governance of port classification through the lens of multi-level governance theory, with a particular focus on the Port of Aalborg and the issue of classification of Limfjord waters, in Denmark. The study identifies a conflict in which national governmental decisions regarding the classification of navigable waterways obstruct the port's access to funding opportunities. Despite the port's autonomous operational capacity, national control over waterway classification and port typology shows a nested governance dynamic, thereby highlighting the intricacies of the European Union's subsidiarity principle. This paper argues that the case illustrates how the classification of inland waterways, although ostensibly legal, is intrinsically political and subject to national interests. The Danish government's refusal to designate the Limfjord as a navigable waterway potentially hinders regional development and impedes the EU's policy objectives for intermodality. Methodologically, the research synthesizes desk-based analysis with key-informant interviews to examine the legal, political, and geographical dimensions of this issue. The findings contribute to multi-level governance theory by describing the case as a hybrid model that integrates both nested and polycentric elements, thereby enriching the debate on governance complexities within the European context.
ABSTRACT: Climate change provides for improved conditions for maritime navigation and results in increased activity in the Arctic. Those increased activities influence the safety at sea and risk of accidents. A disaster as the Costa Concordia incident would have far more serious consequences in Greenlandic waters than it had in Italy, therefore the question of prevention and disaster-preparedness is crucial. One approach to avoid risks is to create specific legislation. The legal system guiding safe navigation of cruise ships in/around Greenlandic waters is complex: the legal regime for navigation is set in different general and specific international, regional and national legal acts, partly non-binding, therefore issues of effectiveness arise. Safety is also influenced by practical issues, e.g. the lack of sufficient nautical charts for Greenlandic waters and “preparedness” at land to handle potential disasters, such as the SAR-system and preparedness of different actors, for example hospitals.
In January 2023 the International Seabed Authority (ISA), an intergovernmental organization established under the 1982 UN Convention on the Law of the Sea (UNCLOS) granted already thirty contracts for exploration of Deep Seabed Mining, but exploitation has not started yet because ISA has not finalized its regulations, expected in 2025. This article intends to address to what extent is the current deep Seabed mining regime factoring risks and uncertainties in a just and sustainable manner in the current legal framework on environmental liability embedded in the green energy transition's processes with the EU as case study and inquiry if there are baseline or best practice to learn from. It unravels which type of precautionary approach fits and is just. Deep Seabed Mining is also a social justice, ethical dilemma demanding equitable and shared solutions to the benefit of current and future generations because activities of this kind can destroy ecosystems that can take decades to regenerate, if not causing irreversible damage. Law and technology, but also technology will be crucial as new methods guaranteeing an "environmentally benign Deep Seabed Mining" will determine how liability law will be shaped.
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.
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.