How EU Maritime GHG Rules (FuelEU Maritime, ETS, and RED III) Must Comply with the Requirements of UNCLOS
EU’s maritime rules on FuelEU Maritime, the EU Emissions Trading System (ETS) for Shipping, and the Renewable Energy Directive III (RED III) – which are part of the EU’s “Fit For 55” legislative package – aiming towards reducing GHG emissions from shipping, must comply with the jurisdictional limits of the United Nations Convention on the Law of the Sea (UNCLOS), as EU is an independent party to the UNCLOS.
Caselaw from the European Court of Justice (ECJ) has established that all EU’s maritime rules must always comply with the obligations and jurisdictional framework of UNCLOS. This also applies to the newly adopted rules under FuelEU Maritime, ETS and REDIII which will enter into force in coming years.
EU is party to UNCLOS
As further laid out in chapter 5 of my book (“Enforcing International Maritime Legislation on Air Pollution through UNCLOS”, see more here; Book About UNCLOS), the EU is, as a party to UNCLOS, bound by its provisions, including those found in Part XII of the convention which require States to take measures to prevent, reduce, and control pollution of the marine environment from any source, including ships.
For example, coastal States have the right under UNCLOS to enforce laws and regulations in their exclusive economic zones (EEZ) to protect the marine environment (Article 220). However, enforcement actions against foreign vessels in transit through the EEZ must be justified by severe environmental threats.
Case Law: “The Intertanko case” and “The Bosphorus Queen case”
The ECJ has established in the Intertanko-case and the Bosphorus Queen-case that all EU maritime legislation must not conflict with UNCLOS, given the EU’s status as a party to the Convention.
In the mentioned cases, the ECJ refrained from reviewing whether EU legislation (for example the Sulphur Directive) may conflict or go beyond an international convention, such as MARPOL Annex VI, which regulates similar legislative matters, and many EU States are party to) if the EU is not an individual party to that particular (IMO) convention.
The Intertanko Case (C-308/06):
In the Intertanko case (see; https://curia.europa.eu/juris/liste.jsf?language=en&num=C-308/06), the ECJ was asked to assess the compatibility of Directive 2005/35/EC, which required Member States to treat certain violations of MARPOL Annexes I and II as criminal offenses, with UNCLOS. The applicants argued that these provisions of the Directive could infringe on the rights of ships to innocent passage through territorial waters and transit passage through international straits, as guaranteed by UNCLOS (articles 17–19 and Part III, especially article 38).
The ECJ ruled that it had the authority to determine whether EU legislation is compatible with UNCLOS because the EU is an independent party to the Convention. The Court emphasized that UNCLOS seeks to balance the interests of coastal and flag States, which may sometimes conflict. Importantly, the Court noted that while UNCLOS attaches certain rights to ships, these rights are tied to the flag State and do not confer direct rights on individuals that can be invoked against States. The ECJ concluded that it was not within its jurisdiction to assess the validity of the Directive considering MARPOL, as the EU is not a party to MARPOL, but it could assess its compatibility with UNCLOS.
The verdict underlines the importance of ensuring that EU maritime legislation aligns with UNCLOS principles, particularly in relation to jurisdictional rights and the balance between environmental protection and navigational freedoms.
Bosphorus Queen Case (C-15/17):
The Bosphorus Queen case (see: https://curia.europa.eu/juris/liste.jsf?num=C-15/17) further clarified the ECJ’s approach to assessing EU legislation against UNCLOS. The case involved a ship that discharged oil into the sea within Finland’s EEZ, violating MARPOL Annex I. The Finnish authorities stopped the ship on its return voyage through the EEZ and imposed financial security as a condition for the ship’s release. The shipowner argued that Finland’s actions exceeded its jurisdiction under UNCLOS, specifically under Article 220(3) and (5)–(6), which limits a coastal State’s right to enforce laws against foreign ships in transit through the EEZ unless there is evidence of significant pollution or causing major damage to the coastal State’s interests.
The ECJ emphasized that, unlike MARPOL, the EU is a party to UNCLOS, and therefore the Court had the competence to assess whether Finland’s enforcement actions complied with UNCLOS. The Court found that while the ecological sensitivity of the Baltic Sea designated as a Particularly Sensitive Sea Area (PSSA) could influence the assessment of “major damage” under Article 220(6) of UNCLOS, it did not automatically justify enforcement actions. The ECJ also interpreted the term “related interests” in Article 220(6) broadly, indicating that the concept should encompass a wide range of environmental and economic concerns.
The Bosporus Queen case illustrates the ECJ’s increasing willingness to interpret and apply UNCLOS provisions directly when evaluating the legality of EU Member States’ enforcement actions. This case highlights the need for EU maritime GHG rules to be carefully designed to comply with UNCLOS, particularly in terms of enforcement jurisdiction and the protection of sensitive marine environments.
EU GHG regulations in light of ECJ Caselaw
Given the above-described conclusions from ECJ case law, the EU must ensure that its rules on GHG emissions from ships respect the jurisdictional boundaries set by UNCLOS, provide proportionate and effective penalties, and avoid conflicts with international obligations.
For example, the regulations of the FuelEU Maritime apply to all vessels irrespective of flag. However, the right for an EU Member State to stop a vessel in direct, innocent passage through it’s territorial sea must be limited under Articles 17-19 of UNCLOS, especially if it pertains to stopping a vessel transiting in an area of the sea deemed an international strait under Part III of UNCLOS.
However, it should be well within the competence of the EU to impose rules that require EU Member States, in their capacity as ‘port states’ under UNCLOS, to sanction violations of the mentioned EU GHG rules under the current port state control regimes corresponding with articles 224-277 of UNCLOS and the encompassing the principle of no more favourable treatment (for more on this see; What is PSC). This applies to the situation where a foreign vessel voluntary call a port in a EU Member State. Furthermore, the jurisdiction of EU Member (port) States can also cover violations that occur in areas outside the jurisdiction of the State, e.g. on high seas or in waters of another state following article 218 of UNCLOS.
The regulatory landscape could change
While the protection of the right to ‘innocent passage though the territorial sea’ and ‘transit passage through an international strait’ will likely not be affected by the EU rules on GHG, given that these are considered principles deeply anchored within international law (law of the sea), it could possibly be envisioned that the severity of GHG pollution, and the need to minimize this, could impact the assessment of what constitutes ‘significant pollution’ and ‘major damage’ under article 220, 5-6, thus allowing enforcement of foreign vessels in the EEZ (for a description of the the EEZ and territorial waters encompass, plus more, see; What is UNCLOS)
Dispute resolution and the relevance of ECJ caselaw in context of a dispute under UNCLOS
The EU’s unilateral adoption of stringent GHG measures may lead to disputes with non-EU countries, particularly if these measures are perceived as trade barriers or extraterritorial regulations. Such disputes could be brought before international tribunals, including those established under UNCLOS. The EU must therefore ensure that its GHG legislation is defensible under UNCLOS principles.
As stated in the listed cases, the ECJ will determine whether EU legislation and EU Member State enforcements align – or conflicts – with UNCLOS.
However, in the view of this author, ECJ caselaw could also be relevant “the other way around”, i.e. ECJ caselaw could have an impact on interpreting UNCLOS, e.g. whether GHG pollution can be considered “significant pollution” or cause “major damage” pursuant to article 220 (5) and (6).
Article 38 of the ICJ Statute in context of ECJ caselaw
Article 38 of the Statute of the International Court of Justice (ICJ) is a foundational provision in international law, delineating the sources that the ICJ must apply when resolving disputes. These sources are widely recognized as the general sources of international law and include:
- International Conventions (Treaties): Legally binding agreements between states that explicitly outline the rules recognized by the parties involved.
- International Custom: A general practice accepted as law, developed through consistent state behavior accompanied by opinio juris (the belief that such behavior is legally obligatory).
- General Principles of Law: Fundamental legal principles common to major legal systems, used to fill gaps where treaties or customs do not provide clear guidance.
- Judicial Decisions and Scholarly Writings: These serve as subsidiary means for determining the rules of law, aiding in the interpretation and application of treaties, customary law, and general principles.
The fourth source listed in Article 38—Judicial Decisions and Scholarly Writings—plays a critical role in interpreting and clarifying international law as they provide valuable insights and guidance in applying international legal principles. While decisions from national court – or in this case a regional court such as the ECJ – might not be considered an international court such as the ICJ or ITLOs, the verdicts from the ECJ should, at the very least, then be considered to represent “Scholarly Writings” that can help interpret e.g. UNCLOS. This would, for example, mean that ECJ rulings in cases such as Intertanko and Bosphorus Queen – and any future rulings on EU GHG rules – are significant in the context of international maritime law and the application of UNCLOS. These decisions help interpret how EU legislation aligns with international obligations under UNCLOS, offering important precedents that can inform the ICJ’s understanding of similar issues.
Given that the ICJ is one of the principal judicial bodies for settling disputes under UNCLOS, such rulings could be influential if the ICJ were called upon to resolve a maritime dispute involving EU legislation, such as those adopted under the “FitFor55 package”; FuelEU Maritime, the EU Emissions Trading System (ETS) for Shipping, and the Renewable Energy Directive III (RED III). Additionally, other dispute resolution bodies under UNCLOS, such as the International Tribunal for the Law of the Sea (ITLOS) or arbitral tribunals established under Annex VII of UNCLOS, might also consider ECJ rulings like Intertanko and Bosphorus Queen when interpreting relevant international legal principles. This highlights the interconnectedness of various judicial bodies in shaping and applying international maritime law.
Read more about my book here; Book About UNCLOS and where it can be bought here; Bookshop)
