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The Daily View: International law is a slippery fish

If a suspicious ship calls in a port it is essentially fair game at the hands of port state control when it comes to deficiencies. But that is not how the Law of the Sea Convention works

Your latest edition of Lloyd’s List’s Daily View — the essential briefing on the stories shaping shipping

IF A suspicious ship calls in a port it is essentially fair game at the hands of port state control when it comes to deficiencies. But that is not how the Law of the Sea Convention works.

Theoretically, if pollution control regulations are not adhered to and this threatens to cause major damage to the marine environment, then a coastal state could take “appropriate enforcement measures”.

But that has never really been tried and tested. And in the context of sanctions and threats of Russian naval escorts being deployed through European waters to stave off suggestions that dark fleet tankers may be blockaded, it’s going to take a brave politician to try using Unclos as justification for a potential naval conflict.

So why are we seeing anonymous officials leaking details to the likes of the FT saying that Denmark will be given the task of inspecting and potentially blocking tankers of Russian oil sailing through its waters under new EU plans?

Well, in international law, the line between diplomacy, state practice and law is blurred and surprisingly elastic.

What Denmark and the Nordic-Baltic states have said this week is that they would take “coordinated steps to disrupt and deter Russia’s shadow fleet”. While the language is deliberately vague, this amounts to politely requesting details of suspect ships’ insurance. If they don’t comply they risk being sanctioned, but so far none of the states are suggesting they will go further than that. For now.

The mere fact that they are doing this, however, has a normative effect on the interpretation of international law and it opens avenues for things to evolve.

Leaked press reports are unlikely to materialise in Danish naval plans to block Russian cargoes; that would be both legally problematic and escalate quickly. But it does send a message.

These statements can be read as political rather than legal for now, but they are also clear attempts to push international law in a particular direction.

Similarly, Russia’s “no comment” on the prospect of deploying naval escorts for dark fleet trades, is sending a very clear response.

Right now, there is a theoretical stand off as everyone sizes up how far each side is prepared to move and where the boundaries lie between law, diplomacy and state practice.

As legally interesting as that might be, it does very little to stem the risk of a major environmental disaster happening because an uninsured dark fleet tanker has spilled its guts across the Danish straits. At that point the nuances of international law will likely not be of much consequence to anyone.

Richard Meade
Editor-in-chief, Lloyd’s List

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