EU shadow fleet boarding plan risks legal challenges
EU MINISTERS have discussed giving member states more powers to board shadow fleet* tankers as the bloc continues to step up its campaign against Moscow and its war in Ukraine.
A background paper drafted for the EU’s Foreign Affairs Council and seen by Lloyd’s List said the European External Action Service (the bloc’s diplomatic wing) had begun talks with other EU organisations on a draft declaration reinforcing the International Tribunal on the Law of the Sea.
This declaration would give member states a basis to board shadow fleet vessels, the paper said, and proposes bilateral agreements with flag states which would allow member states to board and inspect vessels within United Nations Convention on the Law of the Sea.
High representative Kaja Kallas accused the shadow fleet of financing Russia’s war in Ukraine as well as acting as a “launch pad for hybrid attacks”.
She said EU ministers “discussed a more robust response, including more powers to board shadow fleet vessels” during a meeting of the EEAS this week, for which the background paper was prepared.
But IR Consilium chief executive Ian Ralby questioned whether the end state of such boardings had been properly thought through.
“My question for [the EU], and this is part of the problem with maritime law enforcement, is: ‘and then what?’
“Even if you get on board, you still have to have some kind of legal cause of action to do something thereafter.
“And so if you're just boarding, looking around, and then getting back off, because you do not have a legal basis for taking any kind of action, you are potentially running the risk of opening the door to claims that you were just interrupting the freedom of navigation, and that is a dangerous precedent to set, even if it is well intentioned,” he told Lloyd’s List.
The bilateral agreements, if they are made with flag states, would give EU member states a legal way to board the vessel, but it’s still unclear what said member states would be able to do thereafter.
Kristina Siig, professor of maritime law at the University of Southern Denmark, explained that even if such a bilateral agreement was secured, the EU member state could only inspect as if they were port states, that is, they could act if there were deficiencies, but not purely on a sanctions-enforcement basis, unless the flag state was also a sanctioning party.
The only other cause an inspecting member state would have for action was if sabotage had been committed or was intended to be committed, Siig explained.
But even in such a case, this would only work if said bilateral agreements specifically allowed for boardings.
Whether the EU can secure agreements with the flag states most popular with shadow fleet tankers is another question.
But as Lloyd’s List senior risk and compliance analyst Bridget Diakun explained, sanctioned vessels are already changing flags at an unprecedented pace.
So even if an agreement was made with one registry, she said, there would be little to prevent said vessel simply moving to a flag — real or otherwise — with which the EU does not have a deal.
Ralby said this new potential tactic of boarding shadow fleet tankers would potentially risk challenges by Russia at ITLOS, should a mistake be made.
A successful judgment for Russia against a nation such as Estonia or Lithuania would be “the last thing” the EU wanted, he said.
But outside of a potentially embarrassing legal case, the move could see other nations, such as Iran or China, adopt a similar approach.
“It means that if we are willing to undermine freedom of navigation because we don’t like the shadow fleet, but don’t have any legal basis for actually doing something about the shadow fleet, then others can undermine freedom of navigation because they don’t like our fleets, and that’s a problem,” he said.
Not policy
It is important to stress that no official policy from Brussels has been formalised yet.
But this represents a significant departure from previous policy employed by the EU and the Nordic-Baltic 8++, which has so far used insurance checks to challenge shadow fleet tankers sailing through their waters.
French President Emmanuel Macron said he and his fellow European leaders would pursue a “policy of obstruction” against shadow fleet vessels in European waters following a meeting of the so-called Coalition of the Willing earlier this month.
“You kill the business model by detaining even for days or weeks these vessels and forcing them to organise themselves differently,” he said.
Ralby said the change in strategy was evidence of frustration in the European camp.
“The Russian Federation is not materially weakened by these sanctions at the moment.
“Yes, they are somewhat weakened, but it has it stopped them from waging war in Ukraine? Has it stopped them from antagonising the West? Has it stopped them from doing nefarious things all over the world? No.”
He said the main point was still being missed by this latest development, “which is there needs to be some kind of legal mechanism to create a legal finish”.
“You can have a legal start boarding a vessel. That doesn’t mean you get to a legal finish where you actually have some kind of prosecutorial or judicative action that changes the risk reward calculus for those engaged in the behaviour.”
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