Bunkering In The EEZ: An Aspect Of The High-Seas Freedom Of Navigation?

• Published date: 15 October 2020
• Subject Matter: Environment, Transport, Environmental Law, Marine/ Shipping
• Law Firm: A. Karitzis & Associates L.L.C
• Author: Yiouli Stylianidou

Coastal State regulation of bunkering (the supplying of fuel for use by ships) in the Exclusive Economic Zone (EEZ) is a contentious matter. The United Nations Convention on the Law of the Sea (UNCLOS) does not establish a clear allocation of jurisdiction as between coastal and flag States. Bunkering by its very nature is a way to avoid customs duties applied by the coastal State. Inevitably, bunkering in the EEZ entails more dangers, especially environmental hazards, than bunkering within a port. Several coastal States regulate bunkering of fishing vessels in the EEZ in their fisheries laws, but State practice is not uniform.

Part V, Articles 55-75 of UNCLOS establishes the legal regime that governs the EEZ. The EEZ is a maritime zone sui generis which combines fundamental freedoms of the High Seas with certain sovereign rights of coastal States, thereby creating considerable tension between the two interests. The Coastal State enjoys broad-ranging legislative jurisdiction within its EEZ (Article 56). At the same time, the rights, and obligations of other States in EEZ are set out in Article 58 of UNCLOS. While Articles 56 and 58 of UNCLOS have undoubtedly an important role to play, it is not straightforward how they should be applied. Offshore bunkering is not contemplated by Article 58. Where the coastal State has no jurisdiction, any legislative or enforcement measures will constitute an infringement of the flag State's freedom of navigation in the EEZ pursuant to Article 58 (1) UNCLOS.

Bunkering in the EEZ can be considered as falling under the freedom of navigation or as being "related to the freedom of navigation. However, if interpreted too liberally, this provision (Article 58) would arguably frustrate the will of the drafters by infringing upon the field of operation that they chose to reserve for Article 59 which deals with the resolution of conflicts regarding the attribution of rights and jurisdiction in the EEZ.

1. The M/V SAIGA and the M/V Virginia G cases

The possible inclusion of bunkering among the domains on which the coastal State may lawfully legislate was questioned for the first time in the "SAIGA" Cases. In the "SAIGA" (No.1) Case as an obiter dicta comment, the International Tribunal for the Law of the Sea (ITLOS) considered that it was possible to argue that "refuelling is by nature an activity ancillary to that of the refuelled ship" and thus an activity the regulation of which can be assimilated to the exercise by the coastal...