The 2023 IMO Assembly Resolution enables States to challenge the ‘Dark Fleet’ that threatens the marine environment
By Robert Beckman, Trung Nguyen and Joel Ong Jie Hao
Published on 18 March 2024
Disclaimer: This blog post is supported by the MPA-CIL Oceans Governance Research Programme funded by the Singapore Maritime Institute (SMI-2023-MA-03).
At its thirty-third biennial meeting on 6 December 2023, the Assembly of the International Maritime Organization (‘IMO’) adopted Resolution A.1192(33) urging Member States and all relevant stakeholders to promote actions to prevent illegal operations in the maritime sector by the ‘dark fleet’ or ‘shadow fleet’ (‘the 2023 Resolution’). This 2023 Resolution is in response to the proliferation of more than a thousand vintage tankers that engage in illegal operations in order to circumvent international sanctions on the export of oil from Russia and Venezuela. The tankers in the dark fleet pose a serious risk of oil pollution when they engage in the ship-to-ship transfer of oil at sea (‘STS operations’) contrary to regulations of the IMO. The STS operations are carried out in a manner that avoids oversight or regulation by flag States, port States or coastal States. This blog post will discuss how the 2023 Resolution could be an important tool for coastal States to address the illegal operations of the dark fleet in waters off their coasts.
The IMO 2023 Resolution and Concerns about the Dark Fleet
The 2023 Resolution defined ‘dark fleet’ or ‘shadow fleet’ as ships that are engaged in illegal operations (‘dark ships’) for the purposes of circumventing sanctions by turning off their automatic identification systems (‘AIS’) signals, evading compliance with safety or environmental regulations, failing to obtain adequate maritime insurance, and engaging in other illegal activities.
The 2023 Resolution noted with ‘grave concern’ that dark ships pose a ‘real and high risk of incidents, particularly when engaging in STS operations in a manner that avoids oversight or regulation by port States or coastal States. Dark ships do not enter ports where they would be subject to port State control inspections or the territorial seas of coastal States where coastal States have the right to regulate ships engaged in STS operations. To avoid regulation by coastal States, dark ships carry out STS operations in the exclusive economic zone (‘EEZ’) of coastal States, outside of the 12 nm territorial sea. What adds to the problem is that the owners of these vintage oil tankers, who often cannot be traced, usually do not have liability insurance for damage caused by oil pollution to coastal States, even though such insurance is required by the 1992 Civil Liability Convention (‘CLC’).
The issues raised by the ‘dark fleet’ are of importance to Southeast Asia because dark ships have been engaging in STS operations in the EEZ of Malaysia off the east coast of Johor. One example of the environmental and safety risks posed by such ship activities is the Pablo incident, where an oil tanker exploded off the coast of Johor in May, 2023, killing several crew members. As reported, the owner of the Pablo could not be identified.
The 2023 Resolution on Possible Actions by Flag, Port and Coastal States
The 2023 Resolution calls upon flag States to ensure that ships flying their flag adhere to the applicable IMO regulations on STS operations to minimize the risk of pollution. It also urges flag States to ‘consider’ requiring ships flying their flag to notify their administration when and where they are engaged in STS operations, especially when they are engaged in a mid-ocean transfer, and to issue a document to such ships acknowledging receipt of the notification, which should be kept onboard the ships.
The 2023 Resolution contains paragraphs encouraging port States to subject ships suspected of belonging to the ‘dark fleet’ to ‘enhanced inspections’, followed by an investigation to verify whether the ships turn off their AIS signals for legitimate reasons, such as device malfunction or to avoid pirates and armed robbery at sea. However, these recommendations are likely to have little impact on dark ships because they fly the flag of a State that maintains little to no oversight over ships flying its flag and they do not enter any port where they might be subject to inspection.
The most important paragraphs in the 2023 Resolution concern coastal States since the IMO’s orthodox practice has been focused almost exclusively on flag States and port States. The resolution calls upon coastal States to monitor STS operations in their territorial sea and EEZ, including monitoring the provision of notifications required pursuant to Regulation 42 of Annex I of MARPOL. Further, it calls upon coastal States to monitor and take ‘appropriate actions’ with respect to dark ships that are engaging in non-IMO-compliant STS operations in their territorial sea and EEZ.
Possible Actions for Coastal States under the UNCLOS and the 2023 Resolution
The IMO is the ‘competent international organization’ for the development of technical regulations for commercial shipping, including the safety and environmental standards set out in relevant annexes of the International Convention for the Safety of Life at Sea (‘SOLAS 74’) and the International Convention for the Prevention of Pollution from Ships (‘MARPOL 73/78’). However, the powers of coastal States to regulate foreign ships at sea are set out in the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’). Consequently, to understand the ambit of the ‘appropriate actions’ that coastal States can take to address dark ships in their EEZ, the 2023 Resolution must be read in conjunction with the relevant provisions of the UNCLOS.
The EEZ is not subject to the sovereignty of the coastal State and it is not part of the high seas. It is a ‘specific legal regime’ in which the rights and jurisdiction of coastal States, and the rights and freedoms of other States, are set out in UNCLOS. Article 58 of UNCLOS provides that ships of all States enjoy the freedom of navigation in the EEZ. The general principle is that ships in the EEZ are subject to the exclusive jurisdiction of the flag State. However, coastal States have some rights to regulate foreign ships in their EEZ. Article 56(2) of UNCLOS states that in the EEZ, coastal States have jurisdiction as provided for in the relevant provisions of UNCLOS with regard to ‘the protection and preservation of the marine environment’. In addition, Article 220 of UNCLOS provides that coastal States have some powers of enforcement over foreign ships in their EEZ that fail to comply with the laws and regulations of the IMO Conventions governing ship-source pollution of the marine environment.
Regulation 42 of Annex I of MARPOL states that oil tankers of 150 gross tonnage and above that plan STS operations within the territorial sea or EEZ of a State Party to MARPOL shall notify that State not less than 48 hours in advance of the scheduled or impending STS operations, even if it does not have all the required information regarding the STS operations as required by MARPOL. The failure of dark ships to provide notifications pursuant to MARPOL provides the coastal State with ‘clear grounds’ for believing a violation of ‘applicable international rules and standards for the prevention, reduction and control of pollution from vessels’ (which refers to the MARPOL) has occurred (Article 220(3) of UNCLOS).
If an oil tanker that is suspected of being a dark ship is loitering or anchored in the EEZ of a coastal State, the coastal State’s authorities can attempt to verify the name of the ship and its registered owner through its IMO Number by checking the ‘Ship and Company Particulars’ section of the IMO’s Global Integrated Shipping Information System. In addition, the authorities of the coastal State can check the website of the International Group of P&I Clubs (IGP&I) to determine if the ship is insured by one of the IGP&I members.
The coastal State’s authorities can then request the flag State’s authorities and its registered owner to provide a copy of the CLC insurance certificate (or its equivalent) and the STS operations Plan. If neither the flag State nor the registered owner can be contacted, or if they are unable to provide the requested information within a reasonable time, there would be clear grounds for believing that the ship is in violation of the applicable international rules and standards for the prevention of pollution from ships. Consequently, the authorities of the coastal State could then exercise their powers under Article 220(3) of UNCLOS to approach the tanker and require it to give information required to be carried onboard the ship regarding its identity and port of registry, last and next port of call, and other relevant information, including the name of the owner, the CLC insurance certificate (or its equivalent), as well as other documents stating that it is in compliance with all relevant IMO Conventions. The authorities of the coastal State can also advise the Master of the tanker that if the tanker intends to engage in STS operations, he is required to notify the coastal State at least 48 hours prior to the start of the STS operation in accordance with MARPOL.
If the Master of the tanker in question is unable to provide the requested information, and there are clear grounds for believing that the violations of the applicable IMO rules threaten ‘significant pollution of the marine environment’, the authorities of the coastal State are authorized under Article 220(5) of UNCLOS to undertake a physical inspection of the tanker for matters relating to the violations. A physical inspection may also be justified if the master cannot provide a maritime insurance certificate or a STS operations Plan. What additional actions the authorities of the coastal State might decide to take would depend upon whether the authorities of the flag State and the owner can be located, and if so, what measures they are willing to take to mitigate the threat posed by the ship’s STS operation to the marine environment of the coastal State.
Conclusion
By adopting the 2023 Resolution, the IMO Assembly has taken a major step to provide coastal States, in whose EEZs the dark ships have been undertaking STS operations, with a political and legal basis for taking action against dark ships which threaten their marine environment. The 2023 Resolution provides a strong signal for coastal States to exercise their powers under UNCLOS to address the threats to their marine environment from dark ships.