Andrea Maria Pelliconi and Pia Rebelo
This year, the well-known book series in Maritime and Transport Law, Il Diritto Marittimo – Quaderni, devoted an entire volume to issues related to the Belt and Road Initiative and the topic of migrants at sea. These topics are reflective of shipping’s role in achieving the United Nations’ 2030 Sustainable Development Goals by addressing the factors that undermine environmental protection, economic stability, security and safe migration. Two City Law School doctoral researchers – Andrea Maria Pelliconi and Pia Rebelo – contributed to the latest edition of Il Diritto Marittimo with articles entitled, ‘Migrants at Sea and the implications of the “duty to rescue”: human rights perspectives in the light of the Italian case-law’ and ‘Vessel-Source Pollution in the Belt And Road Initiative: Green Finance as a Regulatory Tool for Environmental Sustainability’, respectively.
Andrea addressed the law of the sea from the angle of human rights. She explored the legal protections owed to migrants and asylum seekers travelling by the sea under not only refugee law and general human rights law, but also under the law of the sea itself. In her contribution, Andrea argues that the discipline of maritime migration and rescuing activities under both the law of the sea and human rights law pursues the same goal, i.e. protection of human lives. In particular, she showed that the “duty to rescue” and the accessory obligation to disembark the rescued people in a “place of safety” are coherent with human rights safeguards. This view is supported by progressive doctrinal interpretations of the relevant legal instruments and the jurisprudence of the European Court of Human Rights. A significant contribution to the development of the “human rights content” of the law of the sea is also given by the far-reaching case-law of Italian national courts, including the Supreme Court, in cases concerning maritime rescue operations. A landmark example is the decision in the Sea Watch case, where the Court stressed that the actions of the shipmaster Carola Rackete, although contrary to some criminal and immigration rules, were justified in the light of her obligation to comply with the duty to disembark rescued migrants in a place of safety and the prohibition of non-refoulement. In conclusion, Andrea highlighted that there is broad functional and teleological correspondence between the law of the sea and refugee law.
Pia’s article is focused on environmental governance of commercial shipping in the Belt and Road Initiative (BRI). The BRI, formerly known as the One Belt One Road, is an unprecedented global infrastructure development strategy adopted by President Xi Jinping in 2013 to invest an estimated US $4 trillion in 70 nations. The project consists of both overland ‘belt’ corridors and maritime ‘road’ shipping lanes. To facilitate the expected levels of increased trade flows, China’s maritime fleet capacity will continue to grow, raising serious questions about the environmental impacts of the sector. Second only to energy production, the transport sector (both terrestrial and marine) accounts for 30% of BRI investments whilst international shipping is presently responsible for about 15-20% of global greenhouse gas emissions. At the outset, Pia’s work acknowledges the absence of clear green shipping policies for the BRI. At the same time, increased fleet capacity for shipping will continue to be funded by China’s long-term development banks, such as the Bank of China, Export-Import Bank of China (China Eximbank) and the China Development Bank (CDB) – all regulated by the People’s Bank of China. It therefore becomes important to ascertain what China means by ‘green finance’ in the context of shipping. The terms upon which State-owned banks advance green finance to shipowners can become a powerful regulatory tool for vessel source-pollution and meeting climate change targets. However, there are presently no policies nor legislation specific to ship financing in China – which falls under general financing laws and strategic State plans. These general industrial policies are largely insufficient in acknowledging the nature of shipping assets, and the international and intra-jurisdictional framework in which ships operate. There is also a significant difference between ships and the ‘development projects’ which are to receive BRI funding. The purpose of the paper is to elucidate the strategies that guide China’s plan for maritime growth and the extent to which these are reconciled with plans for a ‘Green Belt and Road’. Pia’s paper also argues for a more concrete legal framework for the advancement of finance to green shipping activities – one with clear legal requirements which can provide commercial clarity for all participating States and non-State actors involved in the 21st Century Maritime Silk Road. It appears that maritime transport will be included in the BRI Green Coalition’s ‘green light’ framework to evaluate BRI investments in respect of their environmental performance, however, there remains no workable taxonomy for green shipping investments – a major hindrance in realising China’s ambition of an ‘ecological civilisation’ and establishing a Green BRI.
Summaries of Pia and Andrea’s contributions can be found on the journal’s website. The full publication can be accessed in Il Diritto Marittimo.
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