What does it mean to ‘internationalize’ a maritime dispute? Accusations of ‘internationalization’ of the maritime disputes in the South China Sea have been strident over the past weeks, most recently from the 18 April 2016 Joint Communique of the Foreign Ministers of the Russian Federation, the Republic of India, and the People’s Republic of China, which stressed that “Russia, India and China are committed to maintaining a legal order for the seas and oceans based on the principles of international law, as reflected notably in the UN Convention on the Law of Sea (UNCLOS). All related disputes should be addressed through negotiations and agreements between the parties concerned. In this regard the Ministers called for full respect of all provisions of UNCLOS, as well as the Declaration on the Conduct of Parties in the South China Sea (DOC) and the Guidelines for the implementation of the DOC.” (Joint Communique, para. 21). Russian Foreign Minister Sergei Lavrov was also reported to have observed to Chinese media in Moscow during the Russia-China-India April 2016 trilateral summit that “[attempts to internationalize the issue] are completely counterproductive. Only negotiations, which China and the ASEAN are pursuing, can bring the desired result; namely, mutually acceptable agreements” – a sentiment echoed by Chinese Foreign Minister Wang Yi who was also reported to have voiced his opposition to the ‘internationalization’ of the South China Sea dispute on the basis of the Philippines’ “unilaterally-proposed arbitration case”. Chinese President Xi Jinping reiterated the call for negotiations only between the states involved, reportedly implying nations outside the region such as the United States have “no role in regional disputes”. The Russia-China-India trilateral statement came one week after the G7 Summit in Hiroshima, Japan, yielded the April 11, 2016 G7 Foreign Ministers’ Statement on Maritime Security, which stated, among others, that the G7 “express[es]… strong opposition to any intimidating, coercive or provocative unilateral actions that could alter the status quo and increase tensions, and urge all states to refrain from such actions as land reclamations including large scale ones, building of outposts, as well as their use for military purposes and to act in accordance with international law including the principles of freedoms of navigation and overflight. In areas pending final delimitation, we underline the importance of coastal states refraining from unilateral actions that cause permanent physical change to the marine environment insofar as such actions jeopardize or hamper the reaching of the final agreement, as well as the importance of making every effort to enter into provisional arrangements of a practical nature, in those areas.” (G7 Statement, para. 5). Read the rest of this entry…
The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part II
Yesterday I set out the background to the Position Paper issued by the China, on December 7, 2014, “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”] and examined China’s first objection to the jurisdiction of the arbitral tribunal. In this post, I consider the other Chinese objections.
Second Chinese Objection: Did the Philippines violate the duty to negotiate in regard to the subject-matter of this dispute, when it initiated the arbitration?
The China Position Paper effectively maintains that the ‘exclusive’ dispute settlement mechanism between the Philippines and China on the South China Sea is friendly consultations and negotiations (China Position Paper, paras. 30-39). This position would appear tenable, if one were to tacitly accept the characterization of the arbitration’s subject-matter as one involving claims for maritime delimitation, rather than merely the “interpretation or application of UNCLOS” to the maritime limits drawn in the 9-dash line map as well as to the submerged geographic features described therein.
Notwithstanding the disputed characterization of the arbitration’s subject-matter, however, it is difficult to see where a duty to exclusively pursue negotiations or friendly consultations exists. Ordinary textual examination of the bilateral instruments and multilateral instrument (e.g. the 2002 ASEAN Declaration on the Code of Conduct of Parties in the South China Sea) referenced in the China Position Paper, appears to militate against the notion of an exclusive choice of dispute settlement through ‘friendly consultations and negotiations’. Nothing in the language of the instruments therein definitively rules out compulsory arbitration under Part XV of UNCLOS – which as UNCLOS Part XV also explicitly stresses, is likewise a peaceful means of dispute settlement in international law. Read the rest of this entry…
The Jurisdictional Rubicon: Scrutinizing China’s Position Paper on the South China Sea Arbitration – Part I
On December 7, 2014, China officially published its Position Paper “on the Matter of Jurisdiction in the South China Sea Arbitration initiated by the Republic of the Philippines” [hereafter, “China Position Paper”]. The China Position Paper was issued two days after the US State Department issued its December 5, 2014 Limits in the Seas No. 143 Report, “China: Maritime Claims in the South China Sea”, authored by its Office of Ocean and Polar Affairs and Bureau of Oceans and International Environmental and Scientific Affairs [hereafter, “US State Department Report”]. The US State Department Report concludes, in particular, that: “unless China clarifies that the dashed-line claim reflects only a claim to islands within that line and any maritime zones that are generated from those land features in accordance with the international law of the sea, as reflected in the [UN Convention on the Law of the Sea/UNCLOS], its dashed-line claim does not accord with the international law of the sea.” (US State Department Report, p. 24). China’s 7 December 2014 Position Paper provides its first official, public, and certainly most authoritative clarification of its arguments and claims to date, and certainly introduces a significant dimension to the ongoing arbitration proceedings. Vietnam is reported to have filed a (hitherto-undisclosed) statement to the Annex VII arbitral tribunal, asking the latter to take into account its legal interests while also refuting China’s claims. Although the China Position Paper explicitly states that it should “not be regarded as China’s acceptance of or participation in [the] arbitration” (China Position Paper, para. 2), the Annex VII tribunal is arguably not prevented from taking cognizance of the statements therein as part of China’s jurisdictional objections in this dispute. China itself circulated the Position Paper to members of the arbitral tribunal, albeit stressing that it should not be construed as acceptance of, or participation in, the arbitration (Permanent Court of Arbitration 17 December 2014 Press Release). In its 22 November 2013 Provisional Measures Order in the Arctic Sunrise case (Netherlands v. Russian Federation) – a case where Russia explicitly refused to appear in the proceedings – the International Tribunal for the Law of the Sea (ITLOS) took motu proprio judicial notice of two Notes Verbale by Russia to the Netherlands, as evidence of the nature and content of Russia’s jurisdictional challenge to the existence of a dispute between the parties (Arctic Sunrise Order, paras. 64-65, 68). Read the rest of this entry…
Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Israel Treiman Faculty Fellow at Washington University School of Law and has been the Director of the Whitney R. Harris World Law Institute since 2007.
Douglas J. Pivnichny, JD, is the Whitney R. Harris World Law Institute Fellow at Washington University School of Law in St. Louis, Missouri, and a masters candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.
The Crimes Against Humanity Initiative and Recent Developments at the ILC
On Thursday, July 17, the International Law Commission moved the topic of crimes against humanity from its long-term to its active agenda and appointed Professor Sean D. Murphy as Special Rapporteur. The Rapporteur’s charge is to prepare a First Report, which will begin the process of proposing Draft Articles to the Commission for its approval. The expectation is that, in due course, the Commission will send a complete set of Draft Articles for use as a convention to the United Nations General Assembly. This was a crucial step in filling a normative gap that has persisted despite the development of international criminal law during the past decades: the absence of a comprehensive global treaty on crimes against humanity.
The Commission’s interest in this topic was sparked by the work of the Crimes Against Humanity Initiative, launched by Professor Leila Sadat of Washington University School of Law in 2008. The Initiativeset out to study the current state of the law and sociological reality regarding the commission of crimes against humanity and to address the gap in the current international legal framework by drafting a global, comprehensive model convention on crimes against humanity. Ambitious in scope and conceptual design, the Initiative has been directed by a distinguished Steering Committee and consulted more than 300 experts in the course of elaborating and discussing the Proposed International Convention for the Prevention and Punishment of Crimes Against Humanity (Proposed Convention), published by Cambridge University Press in English, French and Spanish in Forging a Convention for Crimes Against Humanity (1st ed., 2011; 2nd ed., 2013). Arabic, Chinese, German and Russian translations are also available. Read the rest of this entry…
On 15 December, the International Tribunal for the Law of the Sea (ITLOS) ordered Ghana to release the Argentine military training vessel ARA Fragata Libertad (see oral proceedings). NML Capital, an investment company focused on distressed debt based in the Cayman Islands and owned by Elliot Associates, a US hedge fund, had earlier obtained an order from the Ghana Superior Court of Judicature (Commercial Division) to attach the Libertad moored in the port of Trema to satisfy a judgment by a US District Court for payment on defaulted Argentine bonds. The Libertad was on an official goodwill mission in Ghana’s internal waters at the time of the attachment. Read the rest of this entry…
On 14 November 2012 Argentina filed a Request for provisional measures before the International Tribunal of the Law of the Sea (ITLOS) based in Hamburg, Germany in accordance with Article 290(5) of the United Nations Convention on the Law of the Sea (UNCLOS), requesting Ghana to release the frigate ARA Libertad, a sailing training vessel of the Argentine Navy. For the background of the case relating to Argentina’s default on its external debt in 2001 see my previous EJIL:Talk! post. This brief post will touch upon certain jurisdictional and substantive issues of the case, with particular emphasis on the jurisdictional framework established by the UNCLOS, the question of jurisdiction, and the scope of Argentina’s waiver with regard to enforcement immunity of warships.
Some Jurisdictional Aspects of the Case: The Forum
Although the case relates to the seizure of a vessel, it should be stressed that the case in question is a provisional measures case and not a prompt release case (Article 292 UNCLOS) which constitute the majority of the cases decided by the ITLOS so far. Where there is no agreement regarding which court or tribunal should decide on the prescription of provisional measures, the ITLOS will decide on the matter, provided that proceedings are already initiated before an arbitral tribunal (Article 290 UNCLOS). Read the rest of this entry…
Another chapter has begun in the saga of NML Capital Ltd’s attempts to collect on its holdings of Argentinean bonds (see here for earlier reporting on EJIL:Talk!) with the initiation of inter-State proceedings by Argentina against Ghana under the 1982 UN Convention of the Law of the Sea.
It will be recalled that on 2 October 2012, whilst on an official visit, the Argentinean naval training vessel the ARA Libertad was arrested in the Ghanaian port of Tema. Its arrest was ordered by Justice Richard Adjei Frimpong, sitting in the Commercial Division of the Accra High Court, on an application by NML to enforce a judgment against Argentina obtained in the US courts. The judge considered that the waiver of immunity contained in Argentina’s bond documents (which are at the heart of the dispute with NML) operated to lift the vessel’s immunity from execution. That waiver provides that:
To the extent the Republic [of Argentina] or any of its revenues, assets or properties shall be entitled … to any immunity from suit, … from attachment prior to judgment, … from execution of a judgment or from any other legal or judicial process or remedy, … the Republic has irrevocably agreed not to claim and has irrevocably waived such immunity to the fullest extent permitted by the laws of such jurisdiction (and consents generally for the purposes of the Foreign Sovereign Immunities Act to the giving of any relief or the issue of any process in connection with any Related Proceeding or Related Judgment).
Argentina has strongly resisted this assertion of jurisdiction, claiming that it violates the immunity enjoyed by public vessels, which cannot be impliedly waived. It appears that the vessel remains under the control of a skeleton crew, who have prevented any efforts by the Ghanaian authorities to move the vessel, whilst being preventing themselves from leaving port.
Both States being parties to UNCLOS, on 29 October 2012 Argentina instituted arbitration proceedings against Ghana under Annex VII UNCLOS (Ghana not having made a declaration under Article 287 UNCLOS: see Article 287(3)). On 14 November 2012 Argentina applied to the International Tribunal for the Law of the Sea for the prescription of provisional measures prior to the constitution of the Annex VII arbitration tribunal (ITLOS press release here). Argentina may well have the law on its side as regards State immunity for warships. It may be, however, that ITLOS and an UNCLOS Annex VII arbitral tribunal are not the right fora for the settlement of its dispute with Ghana.
From the North Sea to the Bay of Bengal: Maritime Delimitation at the International Tribunal for the Law of the Sea
Last week, the International Tribunal for the Law of the Sea delivered its judgment in the Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar). Although Bangladesh and Myanmar started negotiations for the delimitation of their maritime boundaries since 1974, when Bangladesh became independent from Pakistan, the boundary had still to be settled by 2009, when Bangladesh initiated the proceedings. The dispute was fuelled in 2008 when, following the discovery by Indian and Myanmar of gas deposits, Myanmar authorised exploration in the contested area. Bangladesh replied by sending its warships in the disputed area. Luckily, conflict was avoided following intense negotiations between the parties and the dispute has now been solved peacefully by having recourse to the dispute settlement provisions (Part XV) of the United Nations Convention on the Law of the Sea (UNCLOS).
The decision established the boundary of the territorial sea, exclusive economic zone and continental shelf [including the area of continental shelf beyond 200 nautical miles (nm) from the baselines], between the two States in the Bay of Bengal. It also addresses navigation in the territorial waters of Bangladesh by vessels of Myanmar and discusses the rights and duties of the parties in the area where the continental shelf of Bangladesh beyond 200 nm overlaps with the water column within 200 nm from the coast of Myanmar.
This case is the first to be decided between the two initiated by Bangladesh for the delimitation of its maritime boundaries with its neighbouring States, Myanmar and India. As Dapo has already reported, delimitation of the Bangladeshi-Indian boundary has been submitted to arbitration. It is to be expected that, following the decision on the boundary, Bangladesh and Myanmar will now start exploitation activities in the bay of Bengal.
For those familiar with maritime delimitation, a quick glance at the map of the region will bring immediately in mind the geography of the North Sea continental shelf cases, decided by the ICJ in 1969. There are indeed at least three similarities between the two cases. Read the rest of this entry…
And in other news . . . the International Tribunal for the Law of the Sea (ITLOS) also had a first of its own this past Wednesday. ITLOS delivered judgment in its first maritime delimitation case – Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) (see press release here and judgment here). The case is part of a pair of maritime delimitation cases involving Bangladesh and its neighbours. The other case is one between Bangladesh and India, which has been submitted to arbitration under Annex VII of the UN Convention on the Law of the Sea.
We will have a substantive comment on the decision in the Bangladesh/Myanmar cases soon but for now it may be noted that ITLOS set out a single maritime boundary delimiting the territorial seas, exclusive economic zones and continental shelves of the two States. It appears that both parties got something from the decision. The Tribunal rejected Bangladesh’s argument that both parties had already agreed on a delimitation of the territorial sea in 1974. However, ITLOS acceded to Bangladesh’s request (which was opposed by Myanmar) that the continental shelf beyond 200 nautical miles limit be delimited.
It is not surprising that the decision by ITLOS has received much less attention than that of the International Criminal Court in the Lubanga case (see post here). However, I am surprised that ITLOS announced its decision on the same day as the ICC. ITLOS seems to take special care in ensuring that its work is completely overshadowed by the work of other international courts. Announcing a decision on the same day as the ICC’s first judgment is just part of a trend. The hearings in the Bangladesh/Myanmar case were held exactly at the same time as the ICJ hearings in the Germany v. Italy (Immunity) case. So of course, those hearings got very little attention. In September 2010, when ITLOS held hearings in its advisory proceedings on The Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area, they were fixed for the same week as the ICJ’s hearings in the Georgia v. Russia (Convention on the Elimination of Racial Discrimination Case). Considering that these two ITLOS hearings are the only two substantive hearings the tribunal has had in the last couple of years I find it strange that they are fxed for the same time as the ICJ’s hearings, especially as the ICJ itself only has a few hearings a year. It’s not very hard to avoid those week is it! Perhaps ITLOS is not deliberating trying to hide its light under a bowl, but it couldn’t do a better job of hiding away if it was deliberately trying.
Last summer, I wrote a piece on this blog noting that the International Tribunal for the Law of the Sea (ITLOS), which had been underutilised for some years, was finally getting some substative cases to decide. Although ITLOS had decided a number of cases dealing with provisional release of vessels, and had handled requests for provisional measures in cases where the merits had been submitted to an arbitral tribunal, ITLOS had only decided one case on the merits before 2010. But in a 6 month period before the summer of 2010, 2 cases were submitted to ITLOS: one a maritime delimitation case between Bangladesh and Myanmar and the other a request for an advisory opinion. Not a lot of activity but nonethess signifcant. Nearly one year on, the Court has had two further cases submitted to it!! Last month, Panama and Guinea Bissau agreed to submit a dispute to ITLOS relating to the detention of a vessel (see press release). In November last year, Saint Vincent and the Grenadines initiated a case against Spain at ITLOS also relating to detention of a vessel. Neither of these cases are provisional release cases (see here). That means four new cases in just over 18 months!
It is worth taking a moment to reflect on this new found confidence in ITLOS. In two of the new cases (the Bangladesh/Myanmar and the Panama/Guinea Bissau cases), the parties have agreed to refer to ITLOS, disputes which ordinarily were within the jurisdiction of arbitral tribunals under the dispute settlement system of the United Nations Convention on the Law of the Sea. In other words, rather than going to an arbitral tribunal with compulsory jurisdiction over the dispute, the parties have instead agreed to go to ITLOS. This raises questions as to whyStates might choose a standing court over an arbitral tribunal and why the new found confidence in ITLOS (since the ICJ would also have been an option for these States). One might argue that there are a number of advantages of arbitration over judicial proceedings. For example, the parties have more influence over the composition of the tribunal, the tribunal will be much smaller – usually 5 arbitrators – than ITLOS which has 21 judges. Both these points perhaps make ITLOS’ decisions less predictable for parties. But are there advantages to resorting to ITLOS (or other standing judicial bodies) over arbitration? Clearly these four State think so. I can think of two possible advantages. Decisions of judicial bodies may be regarded as carrying greater (political rather than legal) authority than that of arbitral tribunals. While this may be true of the ICJ, I wonder about ITLOS. Also, developing countries may get financial assistance for using ITLOS. Are there other advantages? Also, are there advantages of using ITLOS over the ICJ? I would be interested in readers’ comments on these issues.