To follow up on my post yesterday on the same topic, the executive summary of the paper discussed was released, and as promised, here it is.
Once the paper itself is out, I’ll update this post.
No one’s ocean?
Imagine a future where the first Marine Protected Area (MPA) on the High Seas has been established under the Agreement on Marine Biodiversity Beyond National Jurisdiction (BBNJ). A number of related protective measures have been adopted. The M/V FF, a vessel flagged to A, a State not party to the BBNJ, discharges large amounts of toxic waste while crossing the MPA in breach of the protective measures. The master of the FF is a national of B, a BBNJ State-party, and its operator is a corporation registered in a Member State of the CU, a Regional Economic Integration Organisation. The CU is itself a party to BBNJ. The FF’s Automatic Identification System (AIS) has been turned off – the vessel has gone dark just before crossing into the MPA. But a Synthetic Aperture Radar satellite belonging to D-Space, a private corporation registered in E, a BBNJ State-party, has detected the vessel’s activity.
In dealing with such a complicated scenario, and with other similar scenarios that may unfold in High Seas MPAs, several questions arise: Which States can request and receive information regarding the vessel’s suspicious or dark activity? How can these States react to enforce the measures associated with the MPA? Most importantly, can it be argued that some of these States may be required to do so under international law, including through the exercise of criminal jurisdiction?
This UNODC Issue Paper tackles precisely these – and related – questions. First, the Issue Paper maps out available means and technology on Maritime Domain Awareness (MDA). Essentially, this means – with respect to High Seas MPAs – how information and data regarding activity in and around such MPAs may be collected, analysed, compiled, shared, and used to allow States to prevent, risk-assess, and suppress such activity. MDA is based on the use of “co-operative” tools (such as AIS, Vessel Monitoring Systems – VMS, and Long Range Identification Systems – LRIT) and “non-co-operative” tools (including drones, satellites, and other earth observation systems), enhanced through Artificial Intelligence systems for the compilation and analysis of data.
Second, this UNODC Issue Paper introduces the concept of State jurisdiction at sea. Understanding the jurisdictional competence of States in the different maritime zones is crucial for determining their powers both to regulate conduct in these zones, and to enforce the regulations that they have made. These are the concepts of prescriptive and enforcement jurisdiction. Notably, the rules of both prescriptive and enforcement jurisdiction under international law are in principle permissive – they permit, rather than require, the assertion and exercise of jurisdiction. Notably, also, prescriptive and enforcement jurisdiction are not necessarily co-extensive, especially in the maritime domain.
Third, given that the Issue Paper discusses High Seas MPAs, the obvious first “port of call” is not a port at all. It is rather the State of nationality of the vessel (the flag State), which enjoys “exclusive” jurisdiction on the High Seas. This part of the Issue Paper sets out the jurisdictional powers and obligations of the flag State with regard to its vessels and their conduct in High Seas MPAs. It describes a complex of obligations stemming from the UN Convention on the Law of the Sea and other sources, which it compiles to establish a matrix of conduct (including intermediate steps for the attainment of results) that is required by the flag State for the enforcement of High Seas MPAs. These include obligations to monitor activities of its vessels, obligations to take measures to regulate their conduct appropriately, obligations to exercise vigilance, obligations to report and share information, and obligations to suppress unlawful activity, including through criminal sanctions.
Fourth, ships cannot roam the High Seas in perpetuity. Eventually they must put into port. This brings into the equation the jurisdictional powers of States other than the flag State. This part of the Issue Paper deals with the jurisdictional powers of those States over foreign-flagged vessels on the High Seas, through Territorial Seas, and into ports. It argues that non-flag States can assert jurisdiction over foreign flagged vessels, based at least on connecting links such as those of nationality of the master or crew or operator, and potentially also on the protective principle. It also puts forward an argument regarding how these permissions to exercise jurisdiction might be converted into obligations through internationally accepted standards emerging from the practice of States asserting jurisdiction in appropriate circumstances and the associated work of competent international organisations.
Fifth, the Issue Paper explores how the UN Convention against Transnational Organised Crime might affect the generally permissive jurisdictional rules of international law by converting permissions into obligations. This can be crucial in demanding that States exercise their competences to enforce measures related to MPAs in the High Seas, including through the imposition of criminal sanctions, and to cooperate to these ends.
The Issue Paper concludes by playing out the scenario described above, and other scenarios introduced at the outset, on the basis of the relevant rules of international law as described and discussed in its various parts. The Issue Paper will help States, including competent maritime, environmental, and law-enforcement agencies, understand the legal framework and employ their powers and all available technological means to conduct effective surveillance and enforcement of High Seas MPAs.