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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)

Outline

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.
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Background

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.
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Threats

A first difficulty with any legal response concerning the


protection of offshore infrastructures relates to the nonhomogenous 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?
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Installations

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.
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Maritime zones

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).
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Safety zones under UNCLOS - 1

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.
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Safety zones under UNCLOS - 2

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.
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SUA Protocol - 1

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.
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SUA Protocol - 2

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.
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SUA Protocol - 3

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.

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EU law 1

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
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EU law 2

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.
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Final remarks

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.
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Thank you

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


Department of Law
University of Genoa
Via Balbi, 22/7b
16126 Genoa Italy
E-mail: lorenzo.schianodipepe@unige.it
Jean Monnet Module and Summer School on European Union and
the Law of the Sea: visit www.eu-los.eu
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