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Announcing our Second EJIL Symposium June 2020: Call for Papers on Inequality and International Law

Published on September 16, 2019        Author: 

International law in the UN Charter, the Universal Declaration of Human Rights, and other foundational treaties and conventions of the multilateral system entails a premise (and promise) of equal rights, the right to self-determination, and the fundamental equality of human beings. However, during the last 10 years and in the wake of the 2008 financial crisis inequality has once again moved to the centre of attention of a number of disciplines, most noteworthy perhaps economics, as well as politics.

We issue this Call for Papers to invite submissions reflecting on the ways that international law – its practice and scholarship – relates to inequality. We chose the plural – inequalities – as we do not intend, from the outset, to narrow the Symposium’s scope to particular forms or actualizations of inequality. Inequalities span access to, or enjoyment of, public resources, and/or state duties to ensure equalities of opportunity regardless of gender, religion, nationality, birth, political or other ideological convictions, status, among others. While the discussion on inequality and international law has been historically concerned with North/South disparities and the quest for equal distribution among states, recent decades have seen a rise in inequality within countries in affluent and weaker economies. Other characteristics of inequality today include the extreme concentration of income at the top and the shrinkage of the middle class in advanced economies. Inequalities persist also in the external relationships of states with other actors (state and non-state) in the international system – as enduring legacies of colonialism in economic development and in post-conflict peacebuilding; as ongoing asymmetries in the efforts to achieve accountability and international justice for victims of internationally wrongful acts; as well as through contested modes of governance over the world’s environment, global commons, and natural resources.  

The interplay between international law and inequality and the special trends related to inequality today invite further research and reflection. Developments such as the rising inequality within countries, the possible decline in inter-country inequality alongside economic growth in emerging market and developing economies challenge our existing legal framing and approaches to the problem of inequality and call for further analysis of the relationship between these trends and international legal principles, doctrines and institutions.

Thus, we invite contributions that conceptualize and problematize the notion of inequality and that examine its doctrinal significance and its usefulness and appropriateness as an analytical concept or as a common concern in international law. We further call for papers that address questions regarding empirical, quantitative and qualitative assessments of inequality within and across societies and states and that assess international law and institutions as cause as well as remedy to inequality. We welcome doctrinal, historiographical, genealogical and sociological engagements with past and present regimes, initiatives, institutions, and instruments and their relationship with inequality as well as biographical engagements with scholars and practitioners who in their work paid particular attention to the question of inequality in international law.

Finally, we welcome engagements with our responsibility as international lawyers. How do we practise international law ethically in light of persisting material inequality, racism and sexism in the world, in our societies, governments and workplaces. What visions or utopias might guide and invigorate our practices? To what extent can we identify persistent inequalities that also suffuse the ‘invisible college’ of international lawyers, and what can be done within international law from both academic inquiry and norms of professional practice?

The call is not restricted to a particular subfield of international law. We would be happy to receive proposals from all fields of international law, including the following themes:

Human Rights: Papers may interrogate the capacity of (social and economic) rights to remedy inequality, or engage with the thesis that (particular conceptions of) human rights detract from social justice concerns.

International Economic Law:Papers may address the question whether international economic law should and how it might allow for global redistribution or contribute to a transformation of political economy that reduces material inequality instead of enhancing it. Further clarification is needed how international economic law (together with transnational and national law) furthers the accumulation of wealth and capital as well as the concentration of corporate power. Contributions may assess calls for a new NIEO or a new Bretton Woods and evaluate them in light of historical experience and in the context of present geopolitical developments. Contributions may also confront the changing face of international economic law – particularly its deepening intersections with human rights law, international environmental law, climate law, among others – and assess how the international economic system engages, perpetuates, or redresses both latent and patent inequalities faced by individuals, groups, peoples, small nations such as low-lying island states, among others.

Sustainable Development Goals: 10 years to go until, by 2030, the SDGs shall be achieved, it may be a good time for an evaluation of their impact so far – not only as concerns the realization of targets, in particular of SDG 10 “Reduced Inequalities” – but also the effects of this governance framework on international law doctrine and the practice of governmental and non-governmental institutions. Can the polycentric approach to SDG governance truly address inequalities, when SDGs are articulated in the grey areas between hard law and soft law?

Migration Law: Given that extreme poverty and global inequality in living conditions are major reasons for global migration, does migration law adequately take account of these causes? Current government policies of exclusion and deterrence not only raise questions as to their conformity with international law, but call into doubt foundational normative justifications of global and national political order. Are instruments such as the Global Compact on Migration and the New York Declaration sufficient to eventually harden into multilateral or regional treaties recognizing shared norms in addressing both protections for migrants as well as the pressures on and opportunities open for receiving populations?

Climate Law: From its inception climate change law has had and still has to come to terms with various inequalities – including inequalities as concerns individual states’ contributions to climate change as well as inequalities as to how communities will be affected by climate change. How does climate law address these inequalities; how should it address them in order not only to effectively contain climate change, but to do so in an equitable manner?

After ‘After Hegemony’: The emergence of  Brazil, Russia, India, China, and South Africa (the BRICS) as a new hub of power in international relations, destabilizing processes in Europe, most evident in Brexit, and the decline of the US as the world’s hegemonic power have triggered new approaches to international law making in recent years.  These new approaches include a shift away from multilateralism toward bilateralism, regionalism and other forms of global governance. These processes are related to inequality in their cause and effects: Can we tie the growing unrest over inequality among different political groups worldwide to the turn away from existing international legal institutions? How are these ideological sensibilities and new forms of mobilization related to new modalities of international regulation? How will these new modalities influence global inequality in the future? 

We are issuing here a Call for Papers. International lawyers from practice and academia as well as scholars from related disciplines are invited to send an abstract of 500 words. Abstracts should not only set out the prospective papers for inclusion in the symposium; they should also concisely formulate the questions addressed as well as the method and materials employed in the proposed research. We will accept proposals for research papers of 10-12K words as well as shorter Think Pieces of 5-7K words.

The deadline for the abstracts is 1 November 2019. Draft papers of those abstracts selected by a committee composed of members of the Editorial Boards of EJIL will be expected by 29 May 2020. We are considering a workshop in June 2020, at a location to be determined, to discuss the drafts. Funding towards the travel expenses of some participants may be available. Final drafts will be expected by 2 November 2020

Abstracts, accompanied by a recent CV in pdf format, are to be sent to EJIL’s Managing Editor at anny.bremner {at} eui(.)euby 1 November 2019.

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Announcements: CfP Revista Tribuna Internacional Law Journal; CfP The Military Law and the Law of War Review; CfP Establishing a World Court, 1920-1922; CfP ESIL Research Forum of the European Society of International Law; Hamburg Young Scholars’ Workshop in International Law

Published on September 15, 2019        Author: 

1. Call for Papers: Revista Tribuna Internacional Law Journal, Volume 8, Issue 16 (December 2019). The Revista Tribuna Internacional Law Journal is an academic publication of the International Law Department of the University of Chile’s Law School. The Journal appears online twice a year (June and December) and is available open access. This call for submissions is open to unpublished articles and monographs, case-law comments and book reviews, in the fields of international public law, international private law, international human rights law, international relations and related topics.  We receive works writing in Spanish and English. All submissions are assessed through double-blind peer review. Article submissions should be of 8,000-9,000 words, case notes of 5,000-6,000 words and book reviews of 2,000-3,000 words. All submissions must comply with the guidelines for authors, see here. Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The deadline for submissions is 30 October 2019. Our last issue, number 15th (first semester, 2019), can be seen here.  

2. Call for Papers: The Military Law and the Law of War Review. The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics. The Review is published under the auspices of the International Society for Military Law and the Law of War. It features original and challenging articles, case notes, commentaries of the latest legal developments, as well as book reviews. For its coming issue, the Review’s editorial board welcomes submissions from scholars and practitioners that come within the broader scope of the Review (including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict)). The deadline for submission is 5 November 2019. Submissions should be sent by e-mail to mllwr {at} ismllw(.)org and will be subject to double-blind peer review. Articles should normally not be longer than 15,000 words (footnotes included), although longer pieces may exceptionally be considered. Selected papers will be published online on the Review’s website in advance access (in a non-downloadable and non-printable form) as well as on Hein Online following editing and type-setting. The print version of the issue will appear in 2020.

3. Call for Papers: The Hope of Ages is in the Process of Realization – Establishing a World Court, 1920-1922. 100 years ago, work towards the Permanent Court of International Justice – the first ‘world court’ – began in earnest. To mark the centenary, Professors Henri de Waele (Radboud University) and Christian J. Tams (University of Glasgow) will host a workshop on 11 – 12 June 2020: ‘The Hope of Ages is in the Process of Realization’: Establishing a World Court, 1920-1922. Bringing together contributions from history, (international) law, sociology and political sciences, this workshop is meant to enhance our understanding of decisions taken during the world court‘s “establishment phase“.  The call for papers is here. Read the rest of this entry…

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Five Procedural Takeaways from the ICC’s 18 July 2019 Lubanga Second Reparations Judgment

Published on September 13, 2019        Author:  and

On 18 July 2019, the International Criminal Court (ICC) Appeals Chamber issued a landmark judgment upholding a USD 10,000,000 collective reparations award for victims in the case against Thomas Lubanga Dyilo. In this second—and hopefully final—Appeals judgment on reparations in the Lubanga case, the Appeals Chamber largely confirmed the methodology that Trial Chamber II employed in its 15 December 2017 decision setting the amount of Lubanga’s liability for reparations (“Lubanga Reparations Award”). At the same time, the Appeals Chamber reversed Trial Chamber II’s rejection of 48 victim applicants for reparations, who will now be entitled to re-apply for collective reparations benefits before the Trust Fund for Victims (TFV).

Overall, we suggest that the 18 July 2019 Lubanga judgment confirms the large discretion that Trial Chambers retain in choosing a procedure and methodology to calculate reparations awards and determine a convicted person’s liability for reparations. At the same time, it makes clear that such discretion is not unfettered. To this end, the judgment presents several “ground rules” that Trial Chambers must follow, moving forward.

This piece outlines five procedure-related takeaways that arise from the Appeals Chamber’s 18 July 2019 Lubanga judgment, which will impact the structure and function of the ICC’s evolving reparations regime. By situating the Lubanga judgment alongside judgments recently issued in the Al Mahdi and Katanga cases, we aim to highlight points of convergence and divergence in the case law. Because we do not survey all questions asked and answered in the 18 July 2019 Lubanga judgment, we hope that this piece will complement syntheses of the judgment that other commentators have produced in recent weeks (for instance, see Wairagala Wakabi’s post here; see also Luke Moffett’s and Janet Anderson’s recent commentaries here).

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Statelessness is back (not that it ever went away…)

Published on September 12, 2019        Author: 

Citizenship deprivation and statelessness are very much back in fashion. States increasingly resort to such measures to deal with those returning from foreign wars, or as a sanction for those otherwise deemed undesirable and unwanted – it must certainly seem easier than living up to their obligations actually to combat terrorist activities or war crimes or crimes against humanity (see here).

States are also ‘cracking down’ on citizenship claims and on the rights of refugees and migrants rights in orchestrated, if often chaotic, policies and practices seemingly designed to cultivate discrimination and division in society, often in the hope of some electoral advantage. Former UK Home Secretary, Theresa May’s ‘really hostile environment’ had such objectives (see here), while India’s current focus on minorities conveniently identified by reference to religion (see here and here and here), is not so very far removed from Myanmar’s programme of violence and persecution against the Rohingya it claims to be stateless (see here).

To any government which, thanks to the idle musings of former UK Prime Minister Tony Blair (see here), argues that citizenship is a privilege, not a right, one may as easily answer the contrary, for many a government these days seems bent on trashing precisely those responsibilities which are its raison d’être.

On the international plane, however, the State does have responsibilities with regard to its citizens. Among others, the State must ensure that they do not violate human rights and that they do not harm other States, whether through cross-border pollution, transnational criminal activities, or even by reason of their having to seek asylum from persecution, conflict or the risk of other serious harm. What is more, these responsibilities also apply after the fact, obliging States to do what may be required, for example, through prosecution and punishment, to uphold the integrity and efficacy of internationally agreed measures – to punish torturers, or those who have engaged in internationally proscribed terrorist activities; in short, to recognize and accept responsibility for those who have been formed among us, no matter how wrong the path subsequently chosen.

When citizenship enters the picture, does international law have much to say? The ‘old’ view that everyone should have a nationality, and only one nationality, has long since had to yield to the realities of a globalised world. What’s more, it has so far proved impossible to get States formally to accept constraints on their sovereign competence in nationality matters, even though what a States does in relation to nationality is entitled to recognition by others only so far as it is consistent with international law. And international law does have something to say, recognizing the link between people and territory, between the individual and their own country, between the competence to expel and the duty to admit.

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The Unseen Actor

Published on September 10, 2019        Author: 

 

The Unseen Actor

 

Smile at us, pass us or greet us; then, if you like, forget,

For we are the unseen actors, that have not spoken yet.

The interns, law clerks, jurists, of less than judicial rank,

Whom judges and arbitrators have nonetheless reason to thank.

We are the unobtrusive – we could almost be said to ‘lurk’;

But make no mistake about it, we’re doing important work.

We stand well back in the shadows (except for the Registrar), Read the rest of this entry…

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Human Rights and the Environment: The UN Human Rights Committee Affirms the Duty to Protect

Published on September 9, 2019        Author: 

Recently, the Human Rights Committee published its views in the case Portillo Cáceres v. Paraguay (currently available only in Spanish). In this landmark decision, the Committee dealt, for the first time, with the question of the States’ duty to protect individuals from environmental degradation under articles 6 (right to life) and 17 (protection of the family) of the International Covenant on Civil and Political Rights (ICCPR). In doing so, the Committee followed the lead of several regional human rights institutions. The decision might help in strengthening the recognition of environmental protection as an element of human rights protection.

A brief summary of the case: The Communication was brought to the Committee against Paraguay by two peasant families who had been poisoned by high amounts of pesticide and insecticides used by neighbouring industrial farms. Whereas legal regulations existed that prohibited this conduct, no significant steps had been taken by the State to enforce the existing laws. As a result of the poisoning, one family member died, the others were hospitalized. Furthermore, the families suffered a loss of fruit trees, the death of various farm animals and severe crop damage. The families claimed that the State had failed in its duty to provide protection inasmuch as it has not exercised due diligence.

Protection of the Environment as a Human Right

Questions regarding the role of environmental protection in the context of human rights protection have recently been brought before several human rights mechanisms. Recently, the Inter-American Court of Human Rights (IACHR) has had the chance to define the role of environmental protection in its system (see this advisory opinion). It has not only found that there is an autonomous right to a healthy environment, but also stated that any right can be affected by environmental harm (paras. 63, 64). Read the rest of this entry…

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Announcements: UN Audiovisual Library of International Law; LEES Doctoral Programme in International and Public Law, Ethics and Economics for Sustainable Development; Transnational Legal Theory Workshop

Published on September 8, 2019        Author: 

1. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the Office of Legal Affairs recently added the following lectures to the Lecture Series of the United Nations Audiovisual Library of International Law (AVL) website: Ms Kristina Daugirdas on “How and Why International Law Binds International Organizations”, Mr. Gattās Abugattās on “The Process of Concluding Treaties in the 1969 Vienna Convention on the Law of Treaties” (in Spanish) and Ms Elvira Méndez Chang on “International Dispute Resolution” (in Spanish). The Audiovisual Library is also available as a podcast, which can be accessed through the preinstalled applications in Apple or Google devices, through Soundcloud or through the podcast application of your preference by searching “Audiovisual Library of International Law”.

2. LEES Doctoral Programme in International and Public Law, Ethics and Economics for Sustainable Development (x6). The Universities of Milan, Rijeka and Maastricht are seeking six outstanding and committed students to carry out a three-year multidisciplinary research project, based at more than one participating university. The three universities are launching LEES, a new doctoral programme in International and Public Law, Ethics and Economics for Sustainable Development. With courses, seminars and scientific research activities entirely in English, it addresses the complexities involved in sustainable development, and uses an innovative multidisciplinary approach that combines the contributions of law, ethics, and economics. Application deadline is 14 October 2019. For further information, contact lees {at} unimi(.)it or see here

3. Transnational Legal Theory Workshop. The Transnational Law Institute at King’s College London in partnership with the International Law Department of the Graduate Institute Geneva is hosting a workshop in preparation of a special issue publication in Transnational Legal Theory on bringing the “human problem” back into transnational law: The example of corporate (ir)responsibility. The workshop will take place on 19 – 20 March 2020 at King‘s College LondonUsing the example of corporate (ir)responsibility, the workshop and subsequent publication aim to refocus transnational law as an analytical framework on the concrete, border-transcending human problems that it had once set out to address. Our objective is to critically discuss some of the ‘theory-focused’ developments in transnational law scholarship and explore the analytical benefits of a ‘problem-focused’ transnational law based on several case studies of corporate (ir)responsibility in thematic areas such as environmental protection, climate change and food security, resource extraction and global supply chains, migration, economic competition and crimes, data protection, cyber security and artificial intelligence. The workshop is free to attend, and a limited number of travel and accommodation stipends are available upon request. In case of interest, please submit an abstract of your paper proposaland a short biography by 1 October 2019. Draft papers will need to be provided by 15 February 2020 for circulation (final papers circa 8000 words). For more information and proposal submissions, please contact bringingthehumanproblemback@gmail.com. For the complete call for papers, please see here or here.  

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CERD Reaches Historic Decisions in Inter-State Communications

Published on September 6, 2019        Author: 

On 29 August 2019, the Committee on the Elimination of Racial Discrimination (CERD) concluded its 99th session, in which it reached a historic decision on jurisdiction and admissibility in two of the three inter-State communications submitted under Article 11 of the International Convention on the Elimination of All Forms of Racial Discrimination, Qatar v Kingdom of Saudi Arabia and Qatar v United Arab Emirates. The Committee decided that it has jurisdiction in the two communications and has also declared them admissible. The Committee’s Chairperson will now appoint an ad hoc Conciliation Commission in the two communications in compliance with Article 12 of the Convention, whose good offices will be made available to the States concerned with a view to an amicable solution of the matter. In the third inter-State communication, Palestine v Israel, the Committee decided to postpone its consideration of the issue of jurisdiction to its 100th session, to be held in November-December 2019.

The Chair of the Committee stressed that ‘the decisions on the inter-State communications were the first such decisions that any human rights treaty body had ever adopted’. The tone is markedly different from that adopted at the conclusion of its previous 98th session on 10 May 2019:

The Committee had examined three interstate communications submitted under Article 11 of the Convention: one by Qatar against Saudi Arabia; one by Qatar against the United Arab Emirates; and another by the State of Palestine against Israel.  While it had held hearings on these communications, the Committee had decided not to take any decisions, due to the legal complexity of the issues broached and a lack of resources.

This somewhat striking statement was quoted in proceedings before the International Court of Justice on 7 June 2019 by the representative for Ukraine: Read the rest of this entry…

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Hospital Targeting: A Remedy is Required, Not Counter-Effective Wishful Thinking

Published on September 5, 2019        Author: 

Though Gordon and Perugini deserve praise for casting light on the serious problem of targeting hospitals, their analysis and conclusion suffer from two ills. They misinterpret the law related to the targeting of hospitals, and they turn a blind eye to all the empirical data relating to the unacceptable hazards and damage caused to health care during armed conflicts. Their recommendation seems to be detached from the world we all live in.

The prevailing law is relatively clear, and it grants a strongyet contingent protection to hospitals. As I mentioned in my Reply,“Save the Injured – Don’t Kill IHL: Rejecting Absolute Immunity for ‘Shielding Hospitals’”,the protection granted to hospitals has both institutionally inherent and personal justifications. The former derives from their humanitarian mission and is contingent upon their actual use in light of this purpose. The second justification, namely the vulnerability of their patients and medical staff, is always present. These weaknesses require special scrutiny and legal adjustments, and the damage multiplier of the sick and wounded should be taken into consideration when assessing the collateral damage that might be caused to them. Gordon and Perugini seem to misunderstand this roadmap of the law, which is not subject to interpretation by states, as they argue.

They appear to ignore the fact that the law grants different layers of protection to hospitals: the special institutionalprotection granted to any hospital, the cumulative requirements for identifying an object as a legitimate military target, and the constraints of the proportionality request in IHL. I have the impression that Gordon and Perugini also ignore the precautionary requirements in IHL, relating to all civilians in general and the one afforded only to medical units in particular. Their misinterpretation turns all these different layers of protection into a single one that can very easily be removed by claiming that the attacked hospital is a shielding hospital. Indeed, another mistake they seem to make relates to the burden of proof. The law is not satisfied merely with an attacker’s arguments as regards a shielding hospital; a heavy burden lies on its shoulders to prove all the facts justifying the attack. Gordon and Perugini appear to assume, unfoundedly, that the burden lies on the attacked. Furthermore, by limiting their prism to constraining attackers, they don’t pay any attention to the binding obligation on all belligerents, which is not limited to the attacker, to insulate hospitals from the hazards of war to the extent possible. The belligerent who controls the hospital’s territory thus is required by law to take concrete measures aimed at achieving this goal.

Indeed, as presented in my Reply, the law as it stands allows the targeting of hospitals only as an exception and not as a norm, as argued by Gordon and Perugini. Unfortunately, in the absence of effective international law enforcement, the shielding argument can easily serve as a pretext for transgression, a hazard that most in bello and ad bellum rules are subject to. But the answer to this manipulation challenge doesn’t lie in changing a normatively desired rule – e.g., cancelling the right of self-defense – but rather in improvinglaw enforcement and compliance. This would require that the facts be established in each case of attack and the law then applied to it, distinguishing between the bona fide mistakes of law-abiding militaries and intentional criminal targeting. 

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Comments on Coastal and Flag State Jurisdiction in the M/T “San Padre Pio” Dispute

Published on September 3, 2019        Author: 

The M/T “San Padre Pio” dispute between Switzerland and Nigeria arose following the interception and arrest by the Nigerian navy of the M/T “San Padre Pio” – a Swiss flagged tanker – while this was engaged in one of several Ship-to-Ship (STS) transfers of gasoil in the vicinity of the Odudu Oil Field within Nigeria’s Exclusive Economic Zone (EEZ).  Although the facts are not entirely clear at this stage, it appears that the M/T “San Padre Pio” transferred gasoil not directly to the Odudu Terminal (for which the gasoil was ultimately intended) but to other transport vessels by way of STS transfers.  These other transport vessels then transported the fuel a short distance to the Odudu Oil Field where they made direct transfers to installations located therein.  Switzerland contends that the “San Padre Pio” was supplying gasoil to Anosyke, the Nigerian company with which it had a supply contract.  The Odudu Oil Field is operated by Total.

Following a request for provisional measures submitted by Switzerland to the International Tribunal for the Law of the Sea (ITLOS) under Article 290(5) of the Law of the Sea Convention (LOSC), on 6 July 2019 ITLOS ordered Nigeria to release the M/T “San Padre Pio”, its cargo, Master and three officers (Order, para 146).  This provisional measures order was insightfully examined by Yurika Ishii here.  The purpose of this post is to examine Swiss and Nigerian arguments about coastal and flag State jurisdiction in anticipation of the Annex VII arbitral tribunal’s decision on the substance of the dispute.  The forthcoming analysis will be undertaken in view of the facts as presently known and in light of the most relevant Law of the Sea Convention (LOSC) provisions. 

In his Separate Opinion, Judge ad hoc Murphy considers that it is “difficult to assess whether the situation [in the “San Padre Pio” dispute] is best approached as simply a STS transfer, which normally is understood as a transfer of cargo between two seagoing vessels, or is best approached as offshore bunkering, which normally is understood as the replenishment by one vessel of a second vessel’s fuel bunkers with fuel intended for the operation of the second vessel’s engines”.  Since the M/T “San Padre Pio” never provided gasoil directly to the oil field installations or to vessels for use as bunker fuel in their own propulsion, this post will consider the type of activities which the M/T “San Padre Pio” was engaged in as STS transfers, not as bunkering operations. Read the rest of this entry…

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