chania 3 june 2015

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Chania 3 June 2015

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  • 6th NMIOTC Conference (Chania - Crete, Greece, 2-4 June 2015)

    Current and Future Challenges to Energy Security in the Maritime Environment

    Protection of Maritime Energy Installations in the Law of the Sea

    Prof. Lorenzo Schiano di Pepe, LL.M., D.R.

    Department of Law University of Genoa

    Co-ordinator, Jean Monnet Module on European Union and the Law of the Sea (http://eu-los.eu)

  • The issue of protection of marine energy installations under the law of the sea can be analysed from many different angles. The following is the (discretionary) approach that will be followed in the context of this presentation:

    background - a topical issue;

    difficulty no. 1 - heterogeneity of actors;

    difficulty no. 2 - heterogeneity of infrastructures;

    the contribution of UNCLOS 1982;

    the contribution of SUA and its Protocol (as amended);

    the (actual and future) role of EU law.

    Outline

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  • Why is the issue of protection of marine energy installations so topical? Many different reasons can be identified for which such installations represent a potential target of criminal attacks, including:

    their role in todays world economy by contributing to the production and distribution of significant amounts of energy;

    they are difficult to protect because of their isolation and distance from tactical capabilities;

    they often handle dangerous substances, thus posing a risk to human health and the environment;

    criminal organizations have been dramatically increasing their offensive capacity in the recent past.

    Background

    3

  • A first difficulty with any legal response concerning the protection of offshore infrastructures relates to the non-homogenous nature of the potential attackers:

    hostile States;

    environmental activists / other protesters;

    insurgents;

    vandals / saboteurs;

    criminal syndicates.

    What role for piracy law according to UNCLOS (art. 101)?

    Catch-all category of terrorists?

    Threats

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  • The installations concerned are also quite heterogeneous, having regard to their conformation, their location, the type of energy they handle, etc.:

    fixed / movable offshore platforms;

    cables (communication data as a form of energy?) and pipelines;

    windmills and grids.

    Not all of the above are explicitly mentioned by UNCLOS which, however, frequently refers to general terms such as installations and structures thus ensuring, in principle, a broad scope of application. See, in addition, art. 56.1.a.

    Installations

    5

  • According to the well-known zonal approach that is typical of UNCLOS, a number of the maritime zones that are provided for therein are subject to security-related norms that are of interest as far as offshore energy installations are concerned. Examples concerning the territorial sea include:

    art. 19.2.k (passage of a foreign ship shall be considered prejudicial to peace, good order and security if it engages in acts aimed at interfering with any system of communication or any other facilities or installations of the coastal State);

    art. 21.1.b (coastal States may adopt laws and regulations relating to innocent passage in respect of the protection of navigational aids and facilities and other facilities or installations).

    Maritime zones

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  • After making clear that in their EEZ coastal States have the exclusive right to construct, authorize and regulate the construction, operation and use of artificial islands / installations / structures, art. 60 UNCLOS stipulates:

    right of coastal States to establish, where necessary, reasonable safety zones around them in which appropriate measures may be taken to ensure the safety of navigation and of the artificial islands / installations / structures;

    breadth is to be determined by coastal States taking into account applicable international standards; it shall not exceed a distance of 500 meters except as authorized by generally accepted international standards or recommended by the competent international organization.

    Safety zones under UNCLOS - 1

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  • In addition:

    all ships must respect these safety zones and comply with generally accepted international standards regarding navigation in the vicinity of artificial islands / installations / structures and safety zones;

    artificial islands / installations / structures and the safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.

    Finally,

    art. 60 applies mutatis mutandis to artificial islands / installations /structures on the continental shelf.

    Safety zones under UNCLOS - 2

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  • The Convention on Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988, has been complemented by a Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, 1988, both amended in 2005.

    To be noted:

    repression- (as opposed to prevention-)based approach;

    the Platforms Protocol extends the principles set out by the Convention also to acts targeting fixed platforms (namely, the one requiring contracting States to extradite or prosecute);

    windmills, cables, pipelines, grids are not covered.

    SUA Protocol - 1

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  • A two-tier jurisdictional system is established:

    compulsory, when the offence is committed against or on board a fixed platform while it is located on the continental shelf of that State or by a national of that State;

    optional, when the offence is committed by a stateless person whose habitual residence is in that State, when during its commission a national of that State is seized, threatened, injured or killed or when the offence is committed in an attempt to compel that State to do or abstain from doing any act.

    Competing jurisdictions issue.

    SUA Protocol - 2

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  • A wide range of offences is covered and recent developments concerning the SUA Convention and Platforms Protocol (as per the 2005 Protocols thereto) have included:

    use against or on a fixed platform or discharge from a fixed platform of explosive, radioactive material or BCN weapon in a manner that causes or is likely to cause death or serious injury or damage;

    discharge, from a fixed platform, of 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.

    SUA Protocol - 3

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  • Safety and environmental protection aspects relating to offshore platforms have been recently dealt with by the EU through the adoption of Directive 2013/30/EU on safety of offshore oil and gas operations:

    preventive approach (authorisations system);

    public participation;

    creation of a network of national competent authorities;

    emergencies preparedness and response;

    anticipation of a possible ad hoc liability regime.

    For various reasons the Directive was met with mixed reception, but still

    EU law 1

    12

  • Some of the concerns at the basis of Directive 2013/30/EU would arguably justify the adoption of a similar piece of legislation dealing with security aspects too.

    One may therefore wonder about the opportunity of an intervention of the EU (linkage with anti terrorism policy):

    EU competence? Apparently not a problem (maritime affairs, energy, environmental protection, justice & home affairs, etc.). See, in particular, art. 83.1 TFEU: minimum standards concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension including terrorism;

    therefore, a political (and subsidiarity) question.

    EU law 2

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  • Looking back at the scope of this presentation (protection of maritime energy installations), after a necessarily brief examination of the relevant legal framework, the following can be concluded:

    to some extent, also thanks to the framework nature of UNCLOS, some of the existing international law provisions are capable of providing solutions to modern-day challenges;

    nonetheless, this is an area of law where there is significant room for improvement (both at the international and EU level) in order to keep pace with the ever-evolving threats that energy installations are faced with.

    Final remarks

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  • Prof. Lorenzo Schiano di Pepe, LL.M., D.R.

    Department of Law

    University of Genoa

    Via Balbi, 22/7b

    16126 Genoa Italy

    E-mail: [email protected]

    Jean Monnet Module and Summer School on European Union and the Law of the Sea: visit www.eu-los.eu

    Thank you

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