Sea Control - Sea Control 397 - Judicial Responses to the Silences of UNCLOS with Chiara Pavesi

Episode Date: December 15, 2022

Links1. "Protecting Non-State Actors’ Interests at Sea: Judicial Responses to the Silence of UNCLOS," by Marianthi Pappa and Chiara Pavesi, ASCOMARE Yearbook on the Law of the Sea, Volume 1, pg. 95-128, Luglio Editore, 2022.

Hey folks, it's Jared. Today I'm joined by Askamare's Chiara Pavisi, and we'll be discussing her contribution to the 2021 yearbook on the Law of the Sea on Judicial Response to the Silence of Unclaws. This episode was edited and produced by Alexia Boulaghi. SimSec, we believe victory in the maritime domain starts with great ideas communicated compellingly. Write, fight, win. Please help us continue to fulfill our mission by donating and making SimSec your preferred nonprofit on Amazon Smile. I'd like to pause here to highlight our local chapters whether you're in South Korea, Egypt, Singapore France, New York, India or the Caribbean chances are there's a SimSec local

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podcasts, and with that, Kimbersman You're listening to Sea Control, hosted by the Center for International Maritime Security. Aloha, shipmates, and welcome aboard Sea Control. My guest today is Chiara Pavese, and we're going to be discussing her contribution to Oscar Mari's 2021 yearbook on the Law of the Sea, Volume 1, entitled Protecting Non-State Actors' Interests at Sea, Judicial Responses to the silence of UNCLOS. So Chiara, thank you for joining us and welcome to Sea Control. Could you tell the listeners a little bit about your background as well as if you don't mind telling us a little bit more about ASCOMARE, please? Of course. Good morning. Thank you for

this great opportunity. I am Chiara. I'm currently a research assistant and project coordinator for ASCOMARE. ASCOMARE is a law of the sea think tank established in 2018 to promote the study and uniform application of the law of the sea. We have different projects, among them we have the Ascomare yearbook on the law of the sea, where my first article with Maria Antipapa was published. For what concerns my background, in 2019 I took my first degree in law at Università Cattolica del Sacro Cuore di Milano. Subsequently, in 2020 I graduated at the University of Nottingham with LLM in international law. In 2021, I was an intern for the legal office of the International Tribunal of the Law of the Sea in Hamburg, and since my LLM in Nottingham, I have to admit that

I've developed a deep interest in international law of the sea, with a particular focus on the protection of the human rights at sea, the use of force, and maritime security. Well, thank you, and as a reminder to the listeners, all opinions are our own and not reflective of any of the institutions with which we might be otherwise associated. So you were very careful to lay out in your introduction that UNCLOS dealt with matters critical for the law of the sea at the time of its making. But what major changes have we observed in the 40 years since UNCLOS was ratified? Of course, the starting point of the analysis of the international law of the sea is always UNCLOS. UNCLOS generally identifies the constitution of

the sea. The convention is considered the most relevant legal instrument and the comprehensive treaty which regulates the sea and its activities we must say that the convention was born following change to the international order in society alongside technological developments regarding the use of the sea the change of international community alongside interest of say to control offshore natural resources have strongly influenced the formulation of the convention as you asserted anklos dealt with matters which were critical for the law of the sea at the time of its making and concern mainly the acts and interests of states for example coastal states land rock state geographical and disadvantaged states fishing state archipelago states in the

ocean however a series of different aspects have arisen since then which are not addressed in UNCROSS one of them is the presence of non-state actors at the sea and the challenge that they face from the states act as discussed in our article which is actually the main point of our investigation is the presence of non-state access to the sea, which has increased to unprecedented levels in the last years. Private actors now use the ocean for advanced economic activity, but also we must say that the sea has been the scenario for an important phenomenon of migration,

for example, irregular migration, as well as acts of piracy. And in the light of this matter, our actor actually aimed to consider the efficacy of UNCLOS in relation to non-state actors and to actually understand how the convention protects their interests at sea. How are you defining non-state actors for the purposes of this paper? Me and Dr. Papa identify non-state actors as non-safarian entities. It is clear that the category of non-state actors, I must say, is vast. When we talk about non-state actors, we refer to, for example individuals which can be migrants can be virus terrorist group which has been an

object of a great investigation in the last years but also when we talk about non-state actors is also private actors we just think about private corporation which are involved as i said before in the use of ocean for economic activities we can deny the prominent role played by, for example, by private shipping companies, private companies in the context of the user they see as the international trade. When we talk about non-set actors, we must say that they have been facing

different kinds of challenges, which actually range from physical to economical and legal challenges. In our article, we have considered three different types of categories, which are, for example, migrants, pirates, and the private corporation. We just think about, for example,

the phenomenon of migration. Consider the Mediterranean area, Mediterranean region, where hundreds of thousands of migrants have used the sea to move from the Middle East of North Africa to the coast of European countries. In several occasions, these trips have seen the deaths of hundreds of thousands of people,

which were the result of, for example, incident on board or the lack of rescue operation at sea or also, unfortunately, the deliberative decision of the coastal state to deny the access of migrants to national ports. As well as, we can also think, for example, of piracy. Piracy is considered one of the main threats to maritime security. Piracy has affected the international trade and also the transport of people in basically all the world. Several ships have been attacked by pirates through the use of force. Pirates have been, on several occasions, heavily armoured and were organised.

And of course, disasters have affected, for example, the security and safety of the seafarers, as well as the commerce, which of course determined the necessity to ensure the security of the seafarers and cargo ships, through, for example, the action of states, private organisations and associations, which actually also determined an increased law enforcement operation. However, in some occasion, the use of force against piracy has been also characterized by an excessive use of force, which determines also an important violation of human rights. And in the end, another category that I think that is particularly important to consider is, of course, the one of private companies. Private companies have been employed in or conducted operations all over the world and employed thousands of people. and despite it they are characterized by several risks which is actually range from physical risk

for example caused by the characteristic of the sea so the marine involvement to economy caused for example by this uncertainty of the oil discoveries or fish in the area that will be object of operation or political and legal aspect for example the possible treat of attacks against private actors by states. So I must say that the importance of non-state actors is clear. They actually play a prominent role in the use of the sea, but they also have been facing several kinds of treaties. So how are the non-state actors dealt with in accordance with UNCLOS today? And if you don't mind bringing it down by the, you refer to migration, piracy, and private companies, but if there's anything else you want to throw in there, please go ahead. I must say that regarding to

this question as my mentor Dr. Paffa with the other author of the article has discussed on her former articles non-state access seems to be kind of invisible to UNCLOS in terms of as we introduce it in our article article one of the convention which define the terms used in the convention does not identify any kind of definition of non-state actors. Non-state actors are not formally defined in ANCLOS and despite the lack of definition non-state actors are actually mentioned in certain provision of ANCLOS but the element that we actually underline is that despite they are mentioned there is nothing in terms of there is no particular reference to the status of these actors. I found particularly interesting for example article 105 which is

actually of course refers to the fact that the state may size a pirate ship or aircraft and arrest a person who commit piracy acts but there is no reference to the person who commit actually the pirates act in terms of there is no reference to their rights their duties the procedural capacity of these non-state actors and also another aspect that i found particularly interesting is that, to some extent, it seems that the non-state actors are just an extension of the flexed states. We found particularly interesting to see how there is a recognition of the non-state actors in terms that are mentioned,

but is silent on their rights, on their duties, on their procedural capacity, which is the main object of our investigation. And this is the main problem in terms of the conclusion that we arise that the non-state actors are not effectively regulated in UNCLOS. They are invisible in the eyes of UNCLOS and or are just treated as an extension of the flagged state. So if the non-state actors aren't addressed via UNCLOS, what case logs is regarding non-state actors? For what concerns the case law, me and Dr. Papa, we have analyzed different cases of

international jurisprudence Dr. Papp actually analyzed cases involving private rights and I decided to analyze cases concerning forcible access towards non-state actors and in relation to this this letter the status of these causes these cases brought to light important information important aspect that underlined the position of non-state actors in the context of international of the sea first of all the fact that a claim can actually be initiated by states so in case we have a violation or unlawful use of force is also is just the state which actually can start the claim in front of an international tribunal and it's clear that in this case to some extent this the interest of the non-state actors is left to the discretion of the states which so it means that

is not a proper protection of the right not the rights and just not just rights but also the interest of the non-state actors and also this element has underlined what we actually say before that the non-state actors are an emer extension of states and of course in order to actuate and obtain our proper protection of non-state rights non-state actors it is clear that we we need to to provide certainty to this category in terms of protection of the rights in front of the international tribunal. And of course, it creates inconsistency among the different disciplines of international law. Then sort of a final question for you is how could UNCLOS be amended or improved to better protect the non-state actors? Well, me and Dr. Papa, we suggested that a starting point

in terms of development for what concerns the national law of the sea in relation to non-state actors, it might be, for example, the definition of non-state actors in the Convention. And it's interesting how Dr. Papa underlined that it might be on the map of the legislation of the sea. And, of course, another aspect which can be an ambition in terms of actually determining an improvement for what concerns the protection of non-state actors

it might be the definition of provision or even a section of the convention, we actually establish the rights, duties, procedural capacity of non-state actors in the context of international relation, which actually will determine a sort of certainty in terms of non-state actors and actually protection for what concerns the challenges at the sea that they can actually face. So without, and I'm going to ask you an unscripted question here. So feel free to push back if you can't answer it or don't want to answer it. But how difficult is it to amend UNCLOS in the way that you've described? Is it a relatively straightforward process with a set of committees or does it require a lot, 200 countries signing off on an amendment? I must say that, of course, our suggestion will be particularly ambitious in terms of it is clear that the convention will need the consent of the states and it will actually determine, you know, quite a big change in the convention. actually will be particularly difficult in terms of there will be the consent of the states

and also imagine that we have to actually obtain the consent of all the states party of the convention, which is actually is not easy. We just think about the time that was necessary for the third one. It will be ambitious and will be probably necessary, but it will be particularly difficult. I'm sorry, that's all the time that we have for today.

I'd like to thank my guest, Chiara Pivese. Chiara, where can we find you online and what are you working on next? I will continue to work with Ascomare as a project coordinator. I'm actually working on the second book of our yearbook and you can actually find me on my email

and also on Twitter. Well, thank you again for joining us. To the listeners, thanks for tuning in. We'll see you next time. © transcript Emily Beynon Help me, Bob. I'm bullying the addicts. Why? I'm bullying the addicts. Help me, Bob. I'm bullying the addicts. Bullying addicts.