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Home Archive for category "Law of the Sea"

The ECtHR on Disembarkation of Rescued Refugees and Migrants at Greek Hotspots

Published on October 25, 2019        Author: 

The storm-tossed question of disembarking rescued refugees and migrants

The pressure of mass migration in the Mediterranean on EU sea-border states calls for other member states to contribute to humanitarian efforts at sea that respect the human rights of refugees and migrants. Article 98 of the United Nations Convention on the Law of the Sea (LOSC) codifies the maritime duty to rescue persons in distress and creates the complementary duty on coastal states to cooperate in operating search and rescue (SAR) services. Under the International Convention on Maritime Search and Rescue (SAR Convention) and the International Convention for the Safety of Life at Sea (SOLAS Convention) the relevant coastal state must ensure timely disembarkation of survivors at a ‘place of safety’ (see e.g. 1979 SAR Convention Annex ch. 3, 3.1.9). However, poor reception and detention conditions at Greek hotspots in the Aegean Sea raise the question of whether disembarkation at these EU assigned facilities will be in contravention of obligations under the European Convention on Human Rights (ECHR), in particular the Article 3 prohibition on inhuman and degrading treatment.

Following an overview of the current conditions at the Greek hotspots, this study considers a number of decisions of the European Court of Human Rights (ECtHR) exploring extraterritorial liability for disembarkation and the relevance of the contexts of maritime rescue and mass migration to the overall assessment of Article 3. Despite problems such as severe overcrowding, Convention states may be able to disembark at Greek hotspots without triggering Article 3 liability. Read the rest of this entry…

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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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How International Law Restricts the Use of Military Force in Hormuz

Published on August 27, 2019        Author: 

We await whether an allied action will protect shipping in the Persian Gulf, and whether it will be led by the USA or by European states. The UK’s new government will support US action, while at least some other European states are reluctant to be seen as supporters of US aggressive policy towards Iran. Political arguments aside, there are important international law concerns with participation in such action, whether American or European-led (see also this recent post by Hartwig).

Absence of a Security Council mandate

The first concern is that such an action would not have a UN mandate. The Security Council can authorize military actions to ensure peace and security, even setting aside other rules of international law. Admittedly, protection of shipping might not fall under the Security Council’s competencies to maintain peace and security. Regardless, a mandate for a military action in the Persian Gulf is in any case politically unlikely.

The law of the sea

Without a mandate from the Security Council, there are strong arguments against the legality of such action. Read the rest of this entry…

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Filed under: Law of the Sea, Self Defence
 
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Tanker Games – The Law Behind the Action

Published on August 20, 2019        Author: 

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

Published on July 10, 2019        Author: 

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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Sovereignty has “Rock-all” to do with it… or has it? What’s at stake in the recent diplomatic spat between Scotland and Ireland?

Published on July 8, 2019        Author: 

Rockall, the tiny, remote, rocky outcrop in the northeast Atlantic – a ghostly peak of an extinct volcano – has periodically appeared in the news at the centre of a longstanding dispute between the UK and Ireland (as well as, more peripherally, Denmark (Faroe Islands) and Iceland too). This dispute has rarely flared up publicly over recent years, as it has largely been subsumed as part of ongoing, unresolved negotiations surrounding extended continental shelf claims of the four states concerned. However, earlier this month, the Scottish government threatened enforcement action against Irish vessels which it claimed were illegally fishing within Scottish territorial waters surrounding Rockall. Ireland immediately responded to this threat by denying Scotland’s right to take any such action. It seemingly based its position on (i) a rejection of UK sovereignty over the islet and, (ii) the argument that such sovereignty (even if it existed) over uninhabited ‘rocks’ like Rockall was irrelevant for the UK’s claimed maritime entitlement. Although any enforcement action has yet to take place, the underlying diplomatic feud appears not to be going away any time soon. Indeed, following a meeting on Friday 28 June between the Irish Prime Minister (the Taoiseach) and Scottish First Minister, there has been an agreement to intensify discussions in light of the diplomatic impasse.

The Scottish position is perhaps explicable in a pre-Brexit (and pro-independence) political climate, where sovereign rights over natural resources will play a critical part – a theme I briefly return to at the end of this post. However, Ireland’s counterargument appears to be built on a misapprehension of the applicable law, both over territory and associated maritime rights. The real issue would appear to lie in the permissibility of fishing – including potentially acquired customary rights to do so – in the context of EU Common Fisheries Policy rules. In this short post I want to clarify the legal position on sovereignty and associated maritime rights, before turning to the arguably more complicated issue of fishing rights specifically. Before doing so, for those not already familiar, a brief introduction to Rockall is necessary. Read the rest of this entry…

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Attribution of Naval Mine Strikes in International Law

Published on June 24, 2019        Author:  and

On Thursday, June 13, two ships were damaged within forty-five minutes by (current evidence suggests) limpet mines, while transiting the Gulf of Oman at the mouth of the Strait of Hormuz. The Japanese product tanker, Kokuka Courageous sustained damage from either a limpet mine or a projectile, just as Prime Minister Shinzo Abe met with Iranian Supreme Leader Ayatollah Ali Khamenei in Tehran to try to reduce regional tensions. The Front Altair, also a tanker, suffered far more severe damage to its starboard hull, including a hole at the waterline, which – it has been suggested – was the result of a torpedo strike. This is very difficult to confirm – torpedoes tend to cause much more significant damage, and the damage sustained by Front Altair might also be consistent with a moored or floating mine strike, or the detonation of an attached limpet mine. Both ships caught fire and their crews abandoned ship. Four ships were also damaged by limpet mines off the coast of Fujairah on May 12, 2019. A UAE inquiry pinned responsibility on an ‘unidentified state actor.’

World oil prices increased as daily freight rates for oil supertankers climbed as much as fifty percent to reflect the heightened risk. Insurance rates for a seven-day transit have increased fifteen percent. Some seventy of the world’s supertankers are in the region – ten percent of global capacity – but many remain idle due to the threat. The United States blamed Iran for the attacks, and indeed there is evidence that points to Iranian involvement. The UK also attributes responsibility to Iran. Iran has denied responsibility, and Iranian Foreign Minister Javad Zarif responded on twitter that the United States or its allies were likely behind the assaults and that the charge was ‘[without] a shred of factual or circumstantial evidence.’

The United States has pledged to keep the Strait of Hormuz (SOH) open to traffic. Secretary of State Mike Pompeo attributed the attacks to Iran based upon ‘intelligence, the weapons used, the level of expertise needed to execute the operation, recent similar Iranian attacks on shipping, and the fact that no proxy group operating in the area has the resources and proficiency to act with such a high degree of sophistication.’ On June 17 he doubled down, promising to present in the coming days ‘lots of data, lots of evidence’ linking the attacks to Iran. President Trump stated flatly, ‘Iran did do it.’ U.S. Central Command released a video which appears to show an Iranian Revolutionary Guard Corp Navy (IRGCN) patrol boat removing an unexploded limpet mine from the Kokuka Courageous. Trump added, ‘I guess one of the mines didn’t explode and it’s probably got essentially Iran written all over it… It was them that did it.’

In this piece, we explore the available evidence for attribution in light of the international law on point. May the attacks be attributed to Iran, and if not, what additional evidence would have to be produced? And once (if) attribution of the attacks is made out, what measures may affected states then take in response? Since there is no evidence that there exists an international armed conflict under Common Article 2 of the Geneva Conventions, we do not address international humanitarian law, although in the last few days the shoot down of a US UAV and reports of a bombing mission switch off are starting to complicate this assessment.

Read the rest of this entry…

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The Legal Status and Characterisation of Maritime Militia Vessels

Published on June 18, 2019        Author: 

A recent report has described how Royal Australian Navy helicopter pilots were targeted with lasers during a night flight in the South China Sea. The lasers were allegedly directed from Chinese fishing vessels – the primary cadre from which the so-called Chinese ‘maritime militia’ is drawn. Further, the incident occurred – according to another report – shortly after a US admiral warned that the paramilitary force could be treated as ‘combatants’. 

What is the Chinese maritime militia? As described below it is a hybrid body (or bodies), but in essence it is a civilian reserve force (often of fisherman) capable of being called upon to conduct military or governmental activities. A number of recent official reports (eg, US, and Japan), have specifically commented upon the rise in China’s employment of this force multiplier in the South and East China Sea regions. At a certain level such a force may be benign, called upon to assist in search and rescue efforts. The concern, however, is that militia vessels are also being used to further Chinese strategic claims in disputed waters by – for example – harassing the fishermen of other states – including by sinking their vessels, as is reported to have occurred with a Philippines fishing vessel just a few days ago. In another episode, Chinese fishing vessels formed a cordon around Chinese oil exploration vessels operating off Vietnam.

The concept of a ‘maritime militia’ is relatively recent, but not without historical parallel. There has long been (and remains) well settled law around the practices of privateering, use of merchant vessels as auxiliaries to naval forces, and conversion of merchant vessels into warships. In this post, however, I will briefly outline two status and characterisation challenges ahead – or rather, already with us – presented by the increased use of maritime militia by China in the current geo-political and legal context: The status and characterisation of militia vessels under the United Nations Convention on the Law of the Sea (UNCLOS) and the customary law of the sea; and their status under the Law of Naval Warfare (LoNW). Read the rest of this entry…

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Delineating the Exclusivity of Flag State Jurisdiction on the High Seas: ITLOS issues its ruling in the M/V “Norstar” Case

Published on June 4, 2019        Author: 

On 10 April 2019, the International Tribunal of the Sea (ITLOS) gave its judgment in the long-awaited – though somewhat quietly received – M/V “Norstar” (Panama v Italy) case. The Tribunal ruled (by 15 votes to 7) that by arresting and detaining the Panamanian-flagged vessel, the M/V “Norstar”, Italy had violated Article 87(1) of the 1982 UN Convention on the Law of the Sea (UNCLOS) by undermining the vessel’s freedom of navigation. This is the first time that Article 87 has been in direct contention before an international tribunal, and in ruling that Italy contravened the principle the judgment arguably buttresses a quite expansive reading of the exclusive flag state jurisdiction principle under Article 92 UNCLOS.

Whilst the case had previously thrown up interesting jurisdictional and procedural questions at the preliminary objections stage – discussed elsewhere by Mirko Forti here – in this post I will confine my discussion primarily to the ruling on freedom of navigation, insofar as the Tribunal found that Italy’s attempt to exert prescriptive jurisdiction over what were otherwise lawful activities on the high seas violated Article 87(1). In doing so, I will highlight how the Tribunal’s understanding of the exclusive flag state jurisdiction principle arguably runs counter to a notable trend in the academic literature, which was reflected in a somewhat forceful seven-judge dissenting opinion, to treat the principle in a much more circumscribed way. I will also comment on the way in which Italy’s argument in the case seems to put it somewhat at odds with its position in the ongoing Enrica Lexie arbitration – discussed previously by Douglas Guilfoyle here, and Hari Sankar here.

I will first set out the background to and facts of the case before turning to discuss the contentious position on high seas jurisdiction. I also offer a few final thoughts on the contrasting, arguably conflicted positions adopted by Italy in this case versus its position in Enrica Lexie. 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: 

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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