magnify
Home Posts tagged "Countermeasures"

Tanker Games – The Law Behind the Action

Published on August 20, 2019        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

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…

 

The Use of Nerve Agents in Salisbury: Why does it Matter Whether it Amounts to a Use of Force in International Law?

Published on March 17, 2018        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

Over the past few days, there has been discussion of whether the attempt to murder Sergei Skripal and his daughter, in the UK, by the use of a nerve agent amounts to an unlawful use force by Russia in breach of Art. 2(4) of the United Nations Charter and customary international law (see posts by Marc Weller, Tom Ruys, and Ashley Deeks). There is agreement that if the action was attributable to Russia, it would amount to a breach of at least some obligation under international law. Marc Weller, points out that the act would amount to an unlawful intervention and a violation of the territorial sovereignty of the UK. Marko argues that these acts would also be a violation of the human rights of the individuals concerned. However, the British Prime Minister characterised the act as an unlawful use of force. What I wish to do in this post is to ask why this categorisation might matter in international law. What exactly are the implications, as a matter of law, of characterising the act as a use of force? This was an issue that was raised in the comments to Marc Weller’s post and some of the points I make below have already been made in that discussion though I expand on them. As discussed below, this characterisation might have far reaching implications in a number of areas of international law, extending beyond the possibility of self-defence, to the possibility of countermeasures, the law relating to state responsibility, the qualification of a situation in the law of armed conflict, and international criminal law. I accept that many of the points discussed below are not clear cut, and some are even contentious. However, I think that having a catalogue of the possible consequences of the arguments relating to the use of force helps us to see more clearly what is at stake when we make these arguments.  

Read the rest of this entry…

 

Humanitarian Relief Operations as Countermeasures: Overcoming the Withholding of Consent

Published on December 16, 2016        Author: 
Twitter
Facebook
Google+
LinkedIn
Follow by Email

In the Oxford Guidance, the authors make a careful exposition of the legal framework relating to humanitarian relief operations in situations of armed conflict. Responding to the unseemly practice of some states impeding humanitarian relief operations, they make the compelling, practice-based argument that states have an obligation under international law not to arbitrarily withhold consent to such operations (pp. 21-25). That states have such an obligation does however not necessarily mean that humanitarian relief actors have a right to conduct relief operations absent such consent. The primary rules of international humanitarian law, in any event, while providing for the former obligation, do not provide for the latter right. Secondary rules of international law on state responsibility may come to the rescue here. As the authors of the Oxford Guidance correctly point out, the doctrines of necessity and countermeasures under the general law of state responsibility may also apply as circumstances precluding the wrongfulness of “third” states’ relief operations on the territory of the non-consenting state (pp. 51-55). In this post, I will critically reconstruct the authors’ application of the law on countermeasures. I will limit myself to countermeasures taken by third states. I have addressed the taking of humanitarian relief-based countermeasures taken by non-state humanitarian actors (NGOs) in an earlier publication. 

The main obstacle to a third state conducting relief operations as a countermeasure is that this state is not itself ‘injured’ by the territorial state’s withholding of consent. Indeed, the better position is that the non-relieved civilians are the injured parties, and that the state wishing to conduct the relief operation is a non-injured state. This begs the question whether in that capacity it is entitled to take countermeasures in the face of the territorial state’s arbitrarily withholding consent to the relief operation. The authors of the  Oxford Guidance take the ‘progressive’ position that they can. Read the rest of this entry…

 
Comments Off on Humanitarian Relief Operations as Countermeasures: Overcoming the Withholding of Consent