Author Archives: A. N. Honniball

On 29 November 2022 the ICJ Core Group of Nations, led by the Republic of Vanuatu, submitted a Draft Resolution to all UN Member States, entitled, Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change, for further and broadening consultation. The Vanuatu ICJ Initiative seeks to have the UN General Assembly (UNGA) vote on the adoption of the resolution at the 77th Session of the UNGA, likely in early 2023. The draft question to be submitted to the ICJ would adopt a cross-cutting and systemic approach to the body of international law concerning climate change and protection and preservation of the climate system. Thus, while law of the sea elements cannot be viewed in isolation, they are an integral part of the preambular paragraphs and operative paragraphs.

The operative paragraph of the Draft Resolution would provide:

Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an advisory opinion on the following question:

“Having regard to the applicable treaties, including the Charter of the United Nations, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, and the United Nations Convention on the Law of the Sea, and rules of general international law, including the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment, and the duty to protect and preserve the marine environment,

(1) What are the obligations of States under the above-mentioned body of international law to ensure the protection of the climate system and other parts of the environment for present and future generations;

(2) What are the legal consequences under these obligations for States which, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:

(a)  Small island developing States and other States which, due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?

(b)  Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”

Draft UNGA Resolution: Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change

In related but distinct developments in possible advisory opinion proceedings, on 2 December 2022 Vanuatu acceded to the Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law.

On 16 November 2022 Belize submitted an Application instituting proceedings against the Republic of Honduras with regard to a dispute concerning territorial sovereignty over the Sapodilla Cayes. As an application concerning a purported territorial sovereignty dispute over maritime features, the case –and any resulting Judgment– is of relevance to the application of the law of the sea, but is not itself a dispute concerning the interpretation or application of the law of the sea.

Nonetheless, the Application relies upon, among others, purported exercises of coastal state rights and jurisdiction to demonstrate a manifestation of sovereignty over the Sapodilla Cayes (Application, paras. 10 & 16 e.g. adjudicative jurisdiction concerning salvage claims and piracy; prescriptive jurisdiction over natural resources, fisheries and entry; military and coast guard activities around Sapodilla Cayes; and a definition of territorial sea by reference to the Sapodilla Cayes). A number of documents in the Annexes to the Application instituting proceedings also make reference to the dispute concerning “said cays and adjoining maritime areas” and maritime delimitation. The jurisdiction of the ICJ is based on Article XXXI of the Pact of Bogotá, to which Belize deposited its instrument of accession on 27 October 2022.

Indeed, considerations of maritime delimitation and the previously reported pending case before the ICJ, Guatemala’s Territorial, Insular and Maritime Claim (Guatemala/Belize), are evidently a key rationale behind the Application. Various press briefings and Senate Statements by the Minister of Foreign Affairs, Foreign Trade and Immigration of Belize point to the potential for overlapping ‘related’ cases concerning, in part, Sapodilla Cayes, as well as the potential consequences of Honduras intervening in Guatemala’s Territorial, Insular and Maritime Claim (Guatemala/Belize).

For more information see the ICJ Press Release No. 2022/63.

As previously reported, on 10 November 2022 the Republic of the Marshall Islands had initiated prompt release proceedings against Equatorial Guinea concerning the M/T “Heroic Idun” whilst the vessel and crew were within the jurisdiction, control and custody of Equatorial Guinea. On 11 November 2022, the President of ITLOS via Order 2022/2 fixed the 24 November 2022 as the date for the opening of the hearings.

However, as detailed by the Marshall Islands (Order 2022/3, para 6) and confirmed by a Press Briefing by the Nigerian Navy (Briefing 15 November 2022), on 11 November 2022 “Equatorial Guinea caused the Vessel and her crew to be transferred into the jurisdiction, control and custody of Nigeria”, with the Nigerian Navy escort and M/T Heroic Idun subsequently arriving off Bonny Offshore Terminal II on 12 November 2022. As the Marshall Islands highlighted, “[t]hese developments have regrettably rendered moot the Marshall Islands’ Prompt Release Application […] [a]s a result, the Marshall Islands is compelled to discontinue the proceedings” (Order 2022/3, paras 7-8). On 15 November 2022, the President of ITLOS via Order 2022/3 placed on record the discontinuance of the prompt release proceedings and ordered that the case be removed from the ITLOS list of cases. It should be noted, as of 14 November 2022, “the Government of Equatorial Guinea had not taken any steps in the proceedings” (Order 2022/3, para 10).

According to the Nigerian Navy, the request to Equatorial Guinea to arrest the vessel, the Nigeria/Equatorial Guinea information exchange, the Nigeria/Equatorial Guinea coordination and the transfer of the suspected vessel and persons from Equatorial Guinea to Nigeria was based on the 2013 Code of Conduct Concerning the Repression of Piracy, Armed Robbery Against Ships, and Illicit Maritime Activity in West and Central Africa.

The Nigerian Navy noted a number of domestic legal provisions it believes the M/T Heroic Idun and/or crew “could” have violated. Press reporting on the first arraignment hearing at the Federal High Court Port Harcourt concerning some of the crew members (14 November 2022) list three charges that correlate with some of the Nigerian Navy points, namely two offences under the 2019 Suppression of Piracy and Other Maritime Offences Act and one offence under 2004 Miscellaneous Offences Act. A Statement by OSM, the Ship Manager, offers a different version of the underlying incidents.

For more information see the ITLOS Press Release 324.

On 10 November 2022 the International Tribunal for the Law of the Sea (ITLOS) confirmed receipt of an Application submitted by the Republic of the Marshall Islands, filed against Equatorial Guinea, and thereby entered by ITLOS as Case No. 30: The M/T “Heroic Idun” Case (Marshall Islands v. Equatorial Guinea), Prompt Release. The case concerns a dispute between the Marshall Islands and Equatorial Guinea but as evident in the Application and several press releases by the Nigerian Navy (Press Release 17 August 2022; Press Briefing 19 August 2022; Press Release 9 November 2022), also arrises out of events occurring in the maritime zones of Nigeria.

Of particular interest to Provisional Measures proceedings, the Application submitted by the Republic of the Marshall Islands contends:

Given the paucity of information available to the Applicant at this point, in the absence of any meaningful engagement by Equatorial Guinea in response to the diplomatic and other initiatives by the Applicant, this [Prompt Release] Application does not rest on an asserted breach by the Respondent of Articles 73, 220 or 226 of the Convention. The Applicant reserves the right, however, to amend and supplement this Application, including in the course of a hearing on the matter, to include reference to Article 73, 220 and/or 226 in the event that this is warranted by information that comes to light in the course of these proceedings, whether in the form of claims and submissions by the Respondent or from elsewhere.

[…]

Having regard to the context and the urgency of the present case, and the Tribunal’s settled jurisprudence on a plausibility threshold for purposes of prompt release applications, the Marshall Islands contends that the Tribunal should proceed on the basis of a non-restrictive interpretation of Article 292 in respect of this Application.

[…]

In addition or in the alternative to the preceding, and having regard to the submissions above about the “non-restrictive interpretation” of Article 292 on which the Marshall Islands primarily relies, the Applicant contends that Article 292(4) provides an independent basis – constituting a “provision of the Convention” for purposes of Article 292(1) – on which the Tribunal’s competence to order prompt release can be engaged.

Application submitted by the Republic of the Marshall Islands, paras. 59, 63 and 81.

Of further note, as evident in Paragraph 2 of the Application, the Marshall Islands intends to submit a dispute on the merits to an UNCLOS Annex VII Arbitral Tribunal (Application, Para. 49(e), while not exhaustive, raises Articles 58(1)-(2), 87, 97 & 110 of UNCLOS), as well as a Request for Provisional Measures (Para. 2 of the Application, refers to ITLOS hearing the provisional measures under Article 290(5) of UNCLOS, but this cannot be presumed until the parties to the dispute have failed to reach agreement on a suitable court or tribunal within 2 weeks, and the Arbitral Tribunal has not been formed).

The Submissions of the Marshall Islands are found in Paragraphs 87-88 of the Application, including the usual Prompt Release requests as well as several “requests the President of the Tribunal, relying on the Tribunal’s inherent competence and proprio motu powers, exemplified but not confined by Article 90(4) of the Tribunal’s Rules” concerning safety, security, and cooperation/information exchange between Equatorial Guinea and Nigeria.

For more information see ITLOS Press Release 323.

On 3 November 2022 the UK Secretary of State for Foreign, Commonwealth and Development Affairs made a written ministerial statement in the House of Commons (HCWS354), repeated in the House of Lords (HLWS347), whereby the minister confirmed:

“[T]he UK and Mauritius have decided to begin negotiations on the exercise of sovereignty over the British Indian Ocean Territory (BIOT)/Chagos Archipelago.

Through negotiations, taking into account relevant legal proceedings, it is our intention to secure an agreement on the basis of international law to resolve all outstanding issues, including those relating to the former inhabitants of the Chagos Archipelago.

[…]

The UK and Mauritius have agreed to engage in constructive negotiations, with a view to arriving at an agreement by early next year.”

HCWS354

Relevant legal proceedings would include domestic proceedings, and at the international level: Chagos Marine Protected Area Arbitration; Delimitation of the maritime boundary in the Indian Ocean (and related Preliminary Objections proceedings) and the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion).

Of further note, the negotiations are framed around statements that the UK will seek to “strengthen significantly” its cooperation in the Indian Ocean on a range of issues, and “The UK and Mauritius have reiterated that any agreement between our two countries will ensure the continued effective operation of the joint UK/US military base on Diego Garcia”. The USA and India will be kept informed of progress in negotiations and the operation of the military base on Diego Garcia.