Panagiotis Sergis

* The Protection of Offshore Energy Installations under the Law of the Sea and the SUA Protocol

*Introduction

*Significant increase in the numbers of installations at sea to exploit resources of continental shelf or EEZ

*Legal regime for installations relatively resent (after WW2)

*Milestones in the legal development: ILC draft articles, 1958 Geneva Convention, LOSC

*Installations in the LOSC

*Exclusive right of coastal states to construct, authorize and regulate installations in their EEZ or Cont. Shelf (60(1) & 80 LOSC)

*Installations in EEZ or Cont. Shelf under the exclusive jurisdiction of coastal states, including customs, fiscal, health, safety and immigration laws (60(2) & 80 LOSC)

*Installations can be constructed to conduct activities in the Area (147 LOSC)

*Construction of installations included in the freedoms of High Seas (87(1) LOSC)

*Installations do not possess the status of islands (60(8) LOSC)

*Protection under LOSC

*Allowance for reasonable safety zones iot ensure safety of navigation and of the installations (delicate balance of interests: freedom of navigation and jurisdiction of coastal states)

*Maximum breadth of 500m (room for bigger radius if recommended by IMO or authorized by international standards)

*All ships must respect the safety zones

*“Controversy over the exact powers of coastal states over foreign vessels within the zones”

*Jurisdiction in Safety Zones (1)

*Embryonic Codification of safety zones in LOSC

*IMO Resolution A.671(16): emphasis on the enforcement powers of the flag state of the ship that violates the zone, but coastal state can take action iaw international law

*SUA Protocol 1988 and Protocol 2005 apply to the installations themselves, not to their safety zones (contra Arbitral Tribunal Artic Sunrise case)

*But we are not helpless…Resort to state practice

*Jurisdiction in Safety Zones (2)

*More restrictive regime inside the zones, than the Cont. Shelf or EEZ regimes

*But no exclusive jurisdiction of coastal states over the safety zones (only over the installations themselves)

*Prescriptive jurisdiction: presupposed (because safety zones do not

exist without declaration)Determined by enforcement jurisdiction (60(4)

LOSC: the coastal state may take appropriate measures to ensure safety of navigation and installations)

Predominantly total ban of navigation in the zones (e.g. US, German, French laws)

*Jurisdiction in Safety Zones (3)

But some states extend to the zones the application of their internal legislation (e.g. Canada, UK) (beyond the scope of the zones)

Enclaves of Contiguous Zones based on 60(2) LOSC (e.g. Australia) (stretching the concept too far)

*Enforcement jurisdiction: 60(4) LOSC: … may take appropriate measuresIMO Resolution A.671(16): enforcement iaw

international lawNecessity, proportionality of enforcement action

to the infringementGap between prescriptive and enforcement

jurisdiction in case of minor violations

*Enforcement of laws in EEZ iaw LOSC*Express provision only regarding living

resources (73 LOSC)

*No express extension of enforcement powers to non – living resources, but undeniably such a right exists (77 LOSC about the rights of coastal state over the Cont. Shelf) – the contour not clearly delineated

*Right of hot pursuit

*The right first time extended to cover violations in the safety zones (111(2) LOSC)

*Almost impossible to have real life application…

*LOSC and environme-ntal jurisdiction*LOSC regulates pollution from different distinct

sources (e.g. seabed activities, ships etc.) and does not stipulate the case installations being attacked by ships (208, 211 LOSC prescriptive jurisdiction – 214, 220 enforcement jurisdiction)

*Enforcement by coastal states against ships in EEZ very limited (when voluntarily in port or in case of clear evidence of substantial discharge that threatens significant pollution-220(1), 220(5))

*Maritime casualty provision (221 LOSC): Can it cover attacks against installations? Maritime casualty is… any occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo (not the installation)

*Protection under 1988 SUA Protocol

*1988 SUA Protocol offences: seizure of a platform by force, threat, or intimidation; acts of violence against a person aboard a platform; destruction or damage threatening the safety of a platform

*Wide jurisdictional bases and obligation to prosecute or extradite

*No boarding provision (exclusive coastal state jurisdiction - 4 Protocol)

*Protection under 2005 SUA Protocol

*New offences: where an individual uses explosive or radioactive material or a BCN weapon to cause damage to an installation, death, or serious injury, or releases oil or gas from an installation in a manner calculated to cause death, serious injury, or damage

*Again no boarding provision

*But 2005 Protocol to the SUA Convention makes an offence to use a ship in a manner that causes death or serious injury or damage(3bis(1)(a)(iii))

*Then the boarding provisions of SUA Convention are applicable (8)

*Concluding Remarks

*EEZ and Cont. Shelf regimes afford the same protection to installations

*Creeping jurisdiction in the safety zones

*Inadequacy of the breadth of safety zones

*Environmental provisions of LOSC of little practical utility in the protection

*3bis(1)(a)(iii) SUA Convention offers solution to the protection of installations