Bunkering in the EEZ: An Aspect of the High-Seas Freedom of Navigation?

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 State of its sovereign rights under Article 56.

In the “SAIGA” (No. 2), ITLOS decided that in the EEZ, the coastal State does not have jurisdiction to apply its customs laws and regulations other than in respect of artificial islands, installations, and structures. While in both cases (“SAIGA”) ITLOS did not expressly mentioned whether bunkering falls into the scope of coastal State jurisdiction, dissenting opinions gave some critical considerations on the issue. Interestingly, Judge Anderson in “SAIGA” (No. 1) following the collective dissenting opinions of Judges Wolfrum and Yamamoto stated that bunkering falls withing the internationally lawful uses of the sea related to navigation and it is not within the competence of the coastal State concerning fishing. In the case of bunkering of a fishing vessel, on the other hand, “the accent is not so much on the navigation of the fishing vessel as upon its efficient exploitation of the stocks.” However, Judge Zhao in “SAIGA” (No. 2) stated in his separate opinion that bunkering must not be regarded as falling within the high seas freedom of navigation or related to it, but it is an offshore commercial activity.

Later, in the Virginia G Judgment, ITLOS unanimously concluded that the requirement for bunkering vessels to obtain the authorization of the coastal State prior to bunkering fishing vessels in the EEZ could be considered as a legitimate exercise of the coastal State’s jurisdiction to conserve and manage living resources under Article 56(1)(a) of UNCLOS. This finding, however, only applies in relation to bunkering of vessels engaging in fishing and it does not extend to the bunkering in general of non-fishing vessels.

  1. The M/V Norstar Case

More recently, in 2019 ITLOS in the M/V Norstar Case declared that bunkering on the high seas is part of the freedom of navigation under Article 87 of the Convention. Following that argumentation, it could be stated that the coastal State in the EEZ cannot regulate bunkering activities, except in the cases of bunkering of fishing vessels or other instances such as Marine Scientific Research on which the coastal State has jurisdiction as per article 56, because bunkering falls within the freedom of navigation.

ITLOS’ reasoning in the “Norstar” case can be extended by arguing that the EEZ bunkering of vessels in transit should be regarded as an internationally lawful use of the sea related to the freedom of navigation under Article 58. Yet, it is still questionable whether States need an authorization prior to bunkering in the EEZ in the case of non-fishing or fishing related vessels, especially in today’s fragile marine environment and ecosystem.