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Home Archive for category "Law of the Sea"

Jurisdictional and Immunity Issues in the Story of Enrica Lexie : A Case of Shoot & Scoot turns around!

Published on March 25, 2013        Author: 

Harisankar K S is Assistant Professor of Law, National Law University Jodhpur, Indiaharishankar

The Enrica Lexie incident (discussed by Douglas Guilfoyle here on EJIL:Talk! a year ago) has caused ripples not only in the political and diplomatic circles but also generated debates in the international legal community. The incident took place in the Arabian Sea on 15 February, 2012, when two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by shots fired by two Italian marines on board the Italian oil tanker, the Enrika Lexie. The St Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Italian ship continued sailing for almost three hours after the incident.  The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code.

The following discussion highlights certain important developments in the legal arena, both domestic and international, in the context of criminal jurisdiction on high seas and immunities of state offiials. In addition, I suggest some possible outcomes of the case.

The Shooting  Incident

Prior to a discussion of Indian jurisdiction over the Italian marines for the shooting incident, there is a preliminary question as to whether India violated international law by engaging in the “Hot Pursuit” of the Italian ship? Read the rest of this entry…

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Filed under: Diplomatic Immunity, EJIL Analysis, Jurisdiction, Law of the Sea, State Immunity
 

Philippines Initiates Arbitration Against China over South China Seas Dispute

Published on January 22, 2013        Author: 

Today, the Philippines has initiated arbitral proceedings against China with regard to China’s claims over much of the South China seas. Those Chinese claims have led to serious disputes between China and several of its neighbours in East Asia with those disputes intensifying recently. Both the Philippines and China are parties to the United Nations Convention on the Law of the Sea and Part XV of that treaty provides for compulsory arbitral/judicial jurisdiction over disputes arising under that Convention. As is well known, UNCLOS Part XV provides for a choice of procedure and States parties may choose either the International Tribunal for the Law of the Sea (ITLOS); the International Court of Justice (ICJ); or an arbitral tribunal as their preferred means for compulsory settlement. In the absence of a choice, arbitration is the default mode of settlement. Also, where the disputing parties have not chosen the same means, the dispute shall be referred to arbitration under annex VII of the Convention (See Art. 287, paras. 1, 3 & 5). As neither the Philippines nor China has made a choice of tribunal, the Philippines has referred this dispute to arbitration. The Philippines notification of the proceedings and its statement of claim can be found here.

Although UNCLOS provides for compulsory jurisdiction over most matters arising under the Convention,  Art. 298 provides that a State may at any time declare that it does not accept compulsory jurisdiction over certain specified categories of disputes. In particular, a State may exclude compulsory jurisdiction with respect to “disputes concerning the interpretation or application of  articles 15, 74 and 83 relating to sea boundary delimitations, or those  involving historic bays or titles”.  China did precisely this in 2006. So, the first thing the Philippines would need to do would be to persuade the arbitral tribunal that it has jurisdiction over the case. To do that it would need to show that the dispute it has submitted to the arbitral tribunal falls outside China’s exclusion of jurisdiction under Art. 298(1)(a). This may not be so easy.

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Filed under: EJIL Analysis, Inter-State Arbitration, International Tribunals, Law of the Sea, Maritime Delimitation, Territorial Disputes
 
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Canada and Denmark reach agreement on the Lincoln Sea Boundary

Published on January 10, 2013        Author: 

Jacques Hartmann is Lecturer in Law, Dundee Law School, Scotland.

On 28 November last year Canada and the Kingdom of Denmark announced that they had reached a tentative agreement on the maritime boundary in the Lincoln Sea. The Lincoln Sea is a body of water bordering the Arctic Ocean, north of Canada’s Ellesmere Island and Greenland, which, together with the Faeroe Islands, is part of the Kingdom of Denmark. The Canadian/Danish agreement partly settles long-standing uncertainty over the northern boundary between the two countries, but it does not settle the dispute over Hans Island which is situated right in the middle of a potentially important sea route to the Arctic Ocean.

This graphic is for illustrative purposes only. The solid black line is the boundary agreed in the 1973 treaty. The broken black line is the boundary agreed ad referendum. The broken blue lines indicate 200-nautical-mile zones.
1) Lincoln Sea; 2) Nares Strait; 3) Baffin Bay 4) Davis Strait ; 5) Labrador Sea

Most of the boundary between Canada and Greenland was established by a delimitation treaty in 1973. The treaty delimited the continental shelf, covering:

‘…[The] area between Greenland and the Canadian Arctic Islands… for the purpose of each Party’s exploration and exploitation of the natural resources of that part of the continental shelf…’

Although that treaty officially concerned the continental shelf, both Canada and Denmark have used the delimitation line to define fishing zones. Thus by usage it is had become a maritime boundary.

The 1973 delimitation treaty lists 127 points from the Davis Strait in the south to the Nares Strait (also know as Robson Channel) in the north, the narrow strait of water between the northernmost part of Ellesmere Island and Greenland. That treaty established a boundary of nearly 1,500 nautical miles. At the time, it was the longest shelf boundary ever negotiated. The new agreement extends the boundary to more than 1,600 nautical miles.

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Filed under: Law of the Sea, Maritime Delimitation
 
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A Report on the Possibility of Future Somali Piracy Prosecutions in Mauritius

Published on December 26, 2012        Author: 

M_STERIO.jpgMilena Sterio is Associate Professor at the Cleveland-Marshall College of Law.

Much has been written about Somali piracy.  Academics on this forum, as well as others, have debated the best options for the prosecution of suspected Somali pirates.  Most pirates are detained by powerful navies of maritime nations, such as the United Kingdom, Denmark, the Netherlands, or by joint maritime fleets such as the EU NAVFOR.  Yet, most capturing nations are not interested in prosecuting detained pirates in their national courts under true universal jurisdiction, because such prosecutions are expensive, logistically difficult and politically unattractive.  In order to avoid the undesirable policy of catch-and-release, maritime nations concluded transfer agreements with regional states interested in opening their national courtroom doors to Somali piracy prosecutions.

Over the past five years, transfer agreements have been concluded with Kenya and the Seychelles, and dozens of successful prosecutions have taken place in Mombasa and in Victoria.  Mauritius joined the “club” or piracy prosecuting nations recently, by concluding similar transfer agreements with the United Kingdom and the European Union; apparently a transfer agreement is also being negotiated with the United States.  However, as of today, Mauritius has not actually accepted any detained pirates for prosecution purposes.  Professor Michael Scharf of Case Western Reserve University School of Law and I visited Mauritius from December 3- December 7, where we met with various government officials in order to advise them on best strategies for future Somali piracy prosecutions in Mauritian courts.  While I have already blogged about Professor Scharf’s and my trip to Mauritius, I will take this opportunity to explore differences between Mauritius and the two other prosecuting venues, Kenya and the Seychelles, and to recommend that Mauritius consider beginning prosecutions in the very near future.

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Filed under: EJIL Analysis, Law of the Sea, Piracy
 
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ITLOS order Ghana to release Argentine navy ship

Published on December 17, 2012        Author: 

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…

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Filed under: EJIL Analysis, Financial Crisis, International Law and Domestic Law, International Tribunal for the Law of the Sea, Law of the Sea, State Immunity
 

Nicaragua v Columbia: the curious question of the Commission on the Limits of the Continental Shelf

Published on December 10, 2012        Author: 

Continental shelf questions have a reputation for being arcane and technical, but an interesting point with implications for offshore resource disputes arose in last month’s ICJ judgement in Territorial and Maritime Dispute (Nicaragua v. Colombia).

First, a certain amount of (potentially dull) technical background needs to be set out, which I’ll simplify as much as possible.

Notably, Nicaragua is a party to the UN Convention on the Law of the Sea (UNCLOS) and Colombia is not. UNCLOS in Article 76(1) states a general principle:

The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to [an automatic] distance of 200 nautical miles from [its] baselines.

This 200 nm or “the outer edge of the continental margin” general definition of the limits of the continental shelf was always likely to be found to be customary international law – and now the ICJ has determined that it is (para 118: correct me if I’ve missed an earlier case). Read the rest of this entry…

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Filed under: EJIL Analysis, International Court of Justice, Law of the Sea, Maritime Delimitation
 
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Drug trafficking at sea: no longer a crime of universal jurisdiction before US Courts?

Published on November 22, 2012        Author: 

Once again, a new maritime drug smuggling case raises interesting questions of international law and its implications for national prosecutions.

Back in 2010 I blogged on Medvedyev: a European Court of Human Rights case finding that an ad hoc agreement between France and Cambodia was an insufficient legal basis for France to prosecute drug smuggler. The agreement for France to board the vessel and assume jurisdiction over the offences discovered was concluded by diplomatic note and valid at international law, but it was a defective basis of jurisdiction in European human rights law because (inter alia) it lacked a required quality of “foreseeability”. (That is, the Cambodian nationals in question could not have predicted they would become subject to French law).

In more recent developments, I am grateful to Ilias Bantekas for drawing to my attention the US Court of Appeals (11th Circuit) decision in US v Bellaizac-Hurtado (6 November 2012).

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Filed under: EJIL Analysis, Law of the Sea, Piracy
 

The Saga Continues: Argentina’s Request for Provisional Measures v Ghana before the ITLOS

Published on November 20, 2012        Author: 

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…

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Filed under: EJIL Analysis, International Tribunal for the Law of the Sea, Law of the Sea, State Immunity
 

Immunity of Warships: Argentina Initiates Proceedings Against Ghana under UNCLOS

Published on November 20, 2012        Author: 

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.

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Filed under: EJIL Analysis, International Tribunal for the Law of the Sea, Law of the Sea, State Immunity
 

After a Brief Hiatus, Kenya Once Again Has Universal Jurisdiction Over Pirates

Published on October 24, 2012        Author: 

 Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

On October 18, the Kenyan Court of Appeal in Nairobi handed down a pivotal decision in In re Mohamud Mohammed Hashi, et al. It held that Kenya has jurisdiction to try piracy suspects whose alleged acts occurred beyond the country’s territorial waters. Due to Kenya’s central role in the emerging global network of piracy prosecutions, the Court’s ruling in Hashi will have positive implications both within and outside of Kenya.

The Court of Appeal decision overturns a ruling from the High Court of Mombasa, which concluded that, “[Kenyan] Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” For an excellent analysis of the lower court’s decision, I would point readers to this post on Communis Hostis Omnium.

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Filed under: EJIL Analysis, International Law and Domestic Law, Law of the Sea, Piracy, Universal Jurisdiction
 
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