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Home Archive for category "Jurisdiction"

Tanker Games – The Law Behind the Action

Published on August 20, 2019        Author: 
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The conflict between some western States and Iran has reached a new phase. Last month, both sides arrested tankers off their coasts. Whereas the political intentions of either side are evident, difficult questions come up with regard to the legal assessment of these actions. They concern the extraterritorial application of a sanction regime, the law of the sea and countermeasures. The post will describe the facts related to the detention of a tanker off Gibraltar (1). It will be investigated if the regime of the transit passage (2) or of innocent passage (3) is applicable under the UN Convention on the Law of the Sea (UNCLOS). Thereafter, the post will study which State may rely on the respective rights (4). The post then will turn to the facts of the second case which happened in the strait of Hormuz (5). It will shortly mention Iran’s right to take measures for the safety of navigation beyond its territorial waters (6), and the regime of countermeasures (7). In part (8) the compatibility of military patrols by western States in the strait of Hormuz with the law of the sea will be studied.

The Facts related to the case off the coast of Gibraltar

On July 4, 2019 the British navy detained the tanker Grace 1, allegedly in the territorial waters of Gibraltar. The vessel was passing through the strait of Gibraltar after having circumnavigated Africa. The chief minister of Gibraltar declared in a press release that the vessel was seized in order to enforce EU sanctions against Syria. The decision was based on the EU regulation 36/2012, a law of Gibraltar of 29 March 2019 and a regulation of Gibraltar of 3 July 2019. According to art. 14 para. 2 of the EU regulation it is prohibited to make available economic resources to corporations listed in Annex 2 to the regulation which includes the Banyas Oil Refinery Company. The chief minister of Gibraltar alleged that the oil carried by the tanker came from Iran and was destined to the refinery; this is denied by Iran.

The EU regulation and the above-mentioned legislation of Gibraltar is applicable on the territory of Gibraltar and the territorial waters. Gibraltar claims territorial waters up to 3 nm.

Grace 1 is owned by a shipping company located in Singapore and flew the flag of Panamá. However, according to the Autoridad Marítima de Panamá the vessel was removed from the open registry of Panamá on 29 May 2019.

Transit Passage

It is generally recognized that this strait falls under art. Read the rest of this entry…

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Romeo Castaño v Belgium and the Duty to Cooperate under the ECHR

Published on August 19, 2019        Author: 
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With a judgment of 9 July 2019, in the case of Romeo Castaño v Belgium, the second section of the European Court of Human Rights (the Court) held unanimously that Belgium had fallen short of its procedural obligations under article 2 of the Convention for failing to cooperate with the Spanish authorities in securing the surrender of an individual sought with multiple European Arrest Warrants (EAWs) in connection with serious charges of terrorism and murder.

These findings are landmark. While it has been long established that extradition may engage the Convention under the non-refoulement principle, never before had the Court found a breach of the Convention in connection with a State’s decision not to surrender an individual sought by an extradition request or EAW.

But the salience of the judgment is not confined to extradition. In fact, the case touches upon the important issue of the ‘symmetry’ between the ECHR and EU law and brings about an important development in the doctrine of positive obligations under the Convention.

The facts of the case

The applicants in the case are the children of Colonel Ramón Romeo, who was murdered in Bilbao in 1981 by an ETA commando. In 2013, one of the suspects, N.J.E., who found herself in Belgium, was arrested pursuant to two EAWs issued by Spain. Read the rest of this entry…

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Deep Seabed Mining in the Area: is international investment law relevant?

Published on July 10, 2019        Author: 
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The last decade has seen a renewed interest in the commercial exploitation of deep seabed minerals located beyond national jurisdiction. However, the respective responsibilities of deep sea miners and of their sponsoring states in this process have not been clarified fully. This short piece argues that international investment law is part of the legal framework applicable to the relationship between the deep sea miner and the state sponsoring it. More specifically, it attempts to demonstrate that deep sea mining operations can constitute a foreign-owned investment within the territory of a host state. Thus, when accepting to sponsor deep sea mining activities, states need to be mindful of the additional disciplines imposed by international investment law. 

The seabed beyond national jurisdiction (named as the “Area” by UNCLOS) is known to contain valuable mineral resources including copper, nickel, zinc and rare earth metals which have become particularly valuable because of recent technological innovations. The International Seabed Authority has awarded twenty-nine exploration contracts to a variety of state and private corporate bodies for vast zones in the Pacific and Indian Oceans. Foreign capital has become increasingly involved in this economic activity. Thus, Nauru Ocean Resources, a Nauruan entity which was granted an exploration contract in 2011, is a subsidiary of the Australian corporation Deepgreen Mineral Corp. UK Seabed Mineral Resources is a subsidiary of the well-known Lockheed Martin. However these activities are controversial and there exist glaring gaps in the scientific knowledge of the ecosystems where deep sea mining is supposed to take place. Read the rest of this entry…

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Callamard Report on the Murder of Jamal Khashoggi: Part II

Published on June 26, 2019        Author: 
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In my second post on the report on the murder of Jamal Khashoggi by the Special Rapporteur on extrajudicial executions, I will discuss some of its most interesting legal findings. The key finding, obviously, is that Saudi Arabia is responsible for committing an extrajudicial execution in violation of Mr Khashoggi’s right to life. The Special Rapporteur notes in that regard, quite correctly, that it is ultimately legally irrelevant whether Khashoggi’s killing was premeditated, ordered at the highest levels of the Saudi state, or was done as part of some ‘rogue’ operation. Saudi Arabia bears responsibility for the conduct of its organs, done in their official capacity, even if it was committed ultra vires (para. 219).

In addition to finding Saudi Arabia responsible for violating Khashoggi’s right to life and for failing to comply with obligations towards Turkey under the Vienna Convention on Consular Relations, the report also finds that Khashoggi’s killing constituted an unlawful use of force by Saudi Arabia against Turkey, contrary to the prohibition in Article 2(4) of the UN Charter (paras. 227-230). The report’s analysis in this regard focuses somewhat excessively on whether the killing of a journalist would be an act contrary to the purposes of the United Nations, but does not really engage with the prior question of whether the furtive assassination of a single individual can constitute ‘force’ in the sense of Article 2(4). This is in effect the question of whether there is any de minimis, lowest limit to the concept of force in Article 2(4), and is a point of some controversy, since a finding that interstate force has been used has a number of important implications. Most recently the same issue was raised with regard to the Salisbury chemical attack, when the UK government formally accused Russia for violating the prohibition on the use of force (which, as far as I’m aware, Turkey did not do here). For detailed discussions in this respect see this post by Tom Ruys on Just Security and Dapo’s post here on EJIL: Talk.

Read the rest of this entry…

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The Distinction between Military and Law Enforcement Activities: Comments on Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine V. Russian Federation), Provisional Measures Order

Published on May 31, 2019        Author: 
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International Tribunal for Law of the Sea (ITLOS) issued a provisional measures order to Russian Federation to release three Ukrainian naval vessels and their servicemen on 25 May 2019. In deciding that the Annex VII arbitral tribunal would have prima facie jurisdiction as required under Article 290(5) of United Nations Convention on Law of the Sea (UNCLOS), the Tribunal held that the case was not “disputes concerning military activities” as provided under Article 298(1)(b) (see Kraska).

This is an important decision considering that there is no settled definition of “military activities” which allows state parties to be exempted from the compulsory dispute settlement procedure under UNCLOS. This is the first time that ITLOS held its interpretation on the former half of Article 298(1)(b) (while the latter half was dealt in the provisional measures order in Arctic Sunrise, para.45), and South China Sea arbitration case of 2016 before Annex VII Arbitral Tribunal remains the only precedent where a third-party dispute settlement institution held its interpretation of the same text.

There seems to be a common understanding that in this order, the Tribunal interpreted the scope of the “military activities” under Article 298(1)(b) quite narrowly, if not diminished, and thereby lowered its jurisdictional bar. While assessments of this decision have already been posted (see Kraska, Schatz), this post adds some comments on the legal framework that the Tribunal relied upon.

Preliminary Remarks

One thing that should be kept in mind is that, since it is a provisional measures order, it suffices if the provisions invoked by the applicant prima facie appear to afford a basis on which the jurisdiction of the Annex VII arbitral tribunal could be founded, and need not definitively satisfy itself that the tribunal has jurisdiction over the dispute (Order, para. 36; see also ARA Libertad, para. 60). Judge Lijnzaad’s commented that the questions of the applicable law and of whether the issues raised are solely to be understood as being related to the interpretation and application of UNCLOS were left to Annex VII arbitral tribunal at a later stage, as they are “matters that go well beyond the prima facie analysis of a request for provisional measures (Declaration, Lijnzaad, para.8).” Read the rest of this entry…

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Symposium on the Genocide Convention: Reflecting on the Genocide Convention at 70: How genocide became a crime subject to universal jurisdiction

Published on May 16, 2019        Author: 
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Editor’s note: This is the second post in our blog symposium arising out of the Nottingham International Law and Security Centre conference to mark the 70th Anniversary of the Genocide Convention. Read the first post here.

The 9th of December 2018 marked the 70th anniversary of the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 by the United Nations General Assembly. Article 6 of the Convention expressly grants adjudicatory jurisdiction to the territorial State (the State where the crime occurred) and to an international penal tribunal with the acceptance of the Contracting Parties. However, the textual content of the Article has not prevented the application of extraterritorial jurisdiction to the crime, including universal criminal jurisdiction. Reflecting on the Genocide Convention at 70, this post briefly analyses the development of universal jurisdiction over the crime of genocide. It explains how Article 6 has led to the application of the universality principle to the crime, and considers what can be learned from this phenomenon in the context of the legacy of the Genocide Convention.

The origins of the application of universal jurisdiction to genocide began decades before the drafting of the Genocide Convention in 1947. Read the rest of this entry…

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Non-Precluded Measures Clause: Substance or Procedure? A comment on Certain Iranian Assets

Published on March 6, 2019        Author: 
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On 13 February 2019, the International Court of Justice (ICJ) issued its Judgment on the preliminary objections raised by the US to Iran’s claims in the Certain Iranian Assets case. The dispute involves the exercise of jurisdiction over Iran by US courts and the seizure of assets of Iranian state-owned companies to satisfy those court’s judgments. According to Iran, these actions are in breach of the US obligations under the 1955 Iran-US Treaty of Amity. The background to the case and the Court’s recent decision have been analysed elsewhere (see, eg, here). In this post, I want to comment on one specific element of the Court’s reasoning: its decision in relation to the US objection based on Article XX(1) of the Treaty of Amity.

Article XX(1) states, in relevant part, that:

The present treaty shall not preclude the application of measures …

(c) regulating the production of or traffic in arms, ammunition and implements of war, or traffic in other materials carried on directly or indirectly for the purpose of supplying a military establishment; and

(d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.

The US argued that the function of this provision was to exclude certain matters from the substantive scope of the Treaty, with the consequence that they fell outside the Court’s jurisdiction which is limited, under Article XXI, to disputes relating to the interpretation and application of the Treaty. The Court rejected the US preliminary objection and decided, as it had done on previous occasions, that the provision in question constituted a ‘defence on the merits’ (para 47). This seems to be the right approach: Read the rest of this entry…

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‘Open for Business’: The Special Criminal Court Launches Investigations in the Central African Republic

Published on February 8, 2019        Author: 
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On 22 October 2018, the Special Criminal Court (SCC) held its inaugural session in Bangui, the capital of the Central African Republic (CAR). Several weeks later, the Special Prosecutor, Col. Toussaint Muntazini, announced his long-awaited prosecutorial strategy. Coming three years after Parliament initially requested a specialist ‘war crimes’ tribunal for CAR, these two acts mark a watershed in the country’s fight against impunity. After providing some background on the SCC, this post examines the prosecutorial strategy and the prospects of accountability in CAR.

The Legal Framework

Established by domestic legislation in June 2015, the SCC is a hybrid tribunal fully integrated into the Central African justice system. It is staffed by national and international prosecutors and judges, and relies on logistical and technical support from the UN peacekeeping mission in CAR. Funded by voluntary contributions, the SCC is functionally independent from both the United Nations and CAR government. Its five-year mandate, which officially began on 22 October 2018, is renewable.

Prosecutorial Strategy

Why did the SCC publicize its prosecutorial strategy? Other tribunals, for instance the Special Court for Sierra Leone and the International Criminal Tribunals for Rwanda and the former Yugoslavia, never made their strategies public (to the extent such strategies existed). The SCC’s decision to ‘go public’ is more in line with the International Criminal Court (ICC)’s practice of adopting formal policies on a variety of matters. Read the rest of this entry…

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The China-Japan and Venezuela-Guyana Maritime Disputes: how the law on undelimited maritime areas addresses unilateral hydrocarbon activities

Published on January 25, 2019        Author: 
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In December 2018, two incidents brought to the fore the importance of the rules addressing activities in undelimited maritime areas.  The first incident occurred between China and Japan in the East China Sea, and the second took place between Venezuela and Guyana in the Atlantic Ocean. Whereas the establishment of maritime boundaries is the optimum choice when it comes to the creation of a stable and secure environment for the conduct of maritime activities, the UN Law of the Sea Convention 1982 (‘LOSC’ or ‘the Convention’) provides for the regulation of operations even in the absence of maritime delimitation. With a view to avoiding tension, Articles 74(3) and 83(3) LOSC impose two obligations upon states having overlapping entitlements/claims in a given undelimited maritime area. This post scrutinises the behaviour of the parties involved in the aforementioned disputes through the lens of the LOSC.

The factual background

On the 3rd of December 2018, Japan protested China’s deployment of a jack-up rig and the drilling of boreholes near the provisional median line between the two states in the East China Sea. In response, the Chinese Ministry of Foreign Affairs stated that China was carrying out hydrocarbon activities in waters falling within its jurisdiction and that it does not recognise the provisional median line with Japan.

It is worth mentioning that China has been engaged in hydrocarbon activities in the area since 2003 (a deal on the establishment of a joint development zone reached in 2008 has not been implemented). Furthermore, it is recalled that in 2014 China performed unilateral oil and gas ventures in an undelimited maritime area within 200M of the coasts of Vietnam, triggering the latter’s vehement reaction. China had attempted to justify its activities back then by invoking its claims according to the ‘9-dash line’, a claim which was put in doubt by the Award of the Arbitral Tribunal in the South China Sea (Philippines v China) case (2016). Read the rest of this entry…

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Towards Universality: Activities Impacting the Enjoyment of the Right to Life and the Extraterritorial Application of the ICCPR

Published on November 27, 2018        Author: 
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On October 31st, the Human Rights Committee (HRC) adopted General Comment no 36 on the right to life (GC36, available here) to the International Covenant on Civil and Political Rights (ICCPR/the Covenant). The Comment includes a number of interesting elements including, the introduction of the right to life as the ‘supreme’ right, and the relationship between the right to life and the environment. This post examines the endorsement in GC36 of the notion of ‘impact’ as constitutive of jurisdiction for the purpose of the extraterritorial application of the Covenant.

Impact as Exercise of Jurisdiction

In para. 63 of GC36, the Human Rights Committee adopts the ‘impact’-approach to the interpretation of Art. 6 in conjunction with Art. 2 (1) of the Covenant:

In light of article 2, paragraph 1, of the Covenant, a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control.  This includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner. […]

Readers of this blog will be familiar with the debates on the extraterritorial application of human rights treaties. To quickly recap, the application of human rights treaties Read the rest of this entry…

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