Category Archives: Jurisprudence

A special chamber of the International Tribunal for the Law of the Sea was formed to deal with “the dispute concerning the M/T “Heroic Idun” and her crew” between the Republic of the Marshall Islands and the Republic of Equatorial Guinea (Order 2023/2 of 27 April 2023). The Parties agreed to transfer the arbitral proceedings instituted by the Marshall Islands under Annex VII of the United Nations Convention on the Law of the Sea to a special chamber of the Tribunal to be constituted pursuant to article 15, paragraph 2, of the Statute of the Tribunal. See ITLOS Press Release 335. See also the press release from the Government of Equatorial Guinea (here). The context of the case leading to this transfer of proceedings can be found in previous De Maribus reports here, and here.

On 28 April 2023 the Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) formed to deal with the Dispute concerning the delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives) delivered its Judgment of 28 April 2023. This follows the previously reported Judgment of 28 January 2021 in the incidental proceedings concerning the preliminary objections raised by the Maldives. The operative part of the Judgment of 28 April 2023 unanimously concluded:

(1) Decides that the single maritime boundary delimiting the exclusive economic zones and the continental shelves of the Parties within 200 nm extends from west to east between the intersections of the respective 200 nm limits determined in paragraphs 248 and 250 above and is composed of geodetic lines connecting the following points in WGS 84 as geodetic datum: Point 1 with coordinates 2° 17′ 21.4″ S and 70° 11′ 56.2″ E; turning points 2 to 36 with the coordinates identified in paragraph 249 above; Point X (Point 37) with coordinates 3° 07′ 28.9″ S and 73° 19′ 11.0″ E; and Point Y (Point 38) with coordinates 3° 20′ 54.8″ S and 75° 12′ 52.1″ E.
(2) Finds that its jurisdiction to delimit the continental shelf between the Parties includes the continental shelf beyond 200 nm.
(3) Rejects the objection raised by the Maldives to the admissibility of Mauritius’ claim to the continental shelf beyond 200 nm on the grounds that Mauritius’ submission to the CLCS was not filed in a timely manner.
(4) Finds that, in the circumstances of the present case, it is not in a position to determine the entitlement of Mauritius to the continental shelf beyond 200 nm in the Northern Chagos Archipelago Region and decides that, consequently, it will not proceed to delimit the continental shelf between Mauritius and the Maldives beyond 200 nm.

Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean, Judgment of 28 April 2023, para. 466.

Declarations to the Judgment of 28 April 2023 were attached by Judge Paik, Judge Heidar and Judge ad hoc Schrijver.

As previously reported, the ICJ would invite states entitled to appear before the ICJ and any international organisations likely to be able to furnish information to submit written statements in respect of Obligations of States in respect of climate change (Request for an Advisory Opinion). By Order of 20 April 2023, the ICJ:

1. Decides that the United Nations and its Member States are considered likely to be able to furnish information on the questions submitted to the Court for an advisory opinion and may do so within the time-limits fixed in this Order;
2. Fixes 20 October 2023 as the time-limit within which written statements on the questions may be presented to the Court, in accordance with Article 66, paragraph 2, of the Statute;
3. Fixes 22 January 2024 as the time-limit within which States and organizations having presented written statements may submit written comments on the written statements made by other States or organizations, in accordance with Article 66, paragraph 4, of the Statute; and Reserves the subsequent procedure for further decision.

Obligations of States in respect of climate change (Request for an Advisory Opinion), Order of 20 April 2023 (emphasis added)

For more information see the case overview at General List No 187. Note, this Order is without prejudice to the possibility of the further addition of participants to the proceedings by authorisation of the ICJ. For example, this has occurred recently in response to a request from the African Union in other ongoing –but completely separate– ICJ Advisory Opinion proceedings (ICJ Press Release No. 2023/19).

Following previous reporting on the United Nations General Assembly’s request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change, the advisory opinion request has been received by the ICJ Registrar on 17 April 2023 and added as General List No 187. Following receipt of the advisory opinion request, the Registrar of the ICJ will have notified all states entitled to appear before the ICJ and any international organisations likely to be able to furnish information of the request and invited said states and international organisations to submit written statements (ICJ Statute, Article 66). Said states and international organisations will also be invited to submit oral statements at public sittings to be determined at a later date. For more information see the ICJ Press Release No. 2023/20.

As previously reported, concerning the Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (Request for Advisory Opinion submitted to the Tribunal) the President of the ITLOS issued an Order of 16 December 2022 inviting State Parties to UNCLOS, the COSIS and the other organizations listed in an annex to present written statements on the questions submitted to the Tribunal for an advisory opinion. 16 May 2023 was fixed as the time limit within which to present written statements. By Order of 15 February 2023, the President has extended this time-limit to 16 June 2023 within which written statements may be presented to ITLOS. The Order also notes that on 2 February 2023 the President of ITLOS affirmatively decided on a request from the African Union, which has now been invited to submit a written statement in addition to the previously invited organisations.

Following the previously reported Request for an Advisory Opinion Submitted by COSIS, on 16 December 2022 the President of the ITLOS issued an Order of 16 December 2022, the operative paragraphs providing:

Decides, in accordance with article 113, paragraph 2, of the Rules of the Tribunal, that the intergovernmental organization listed in the annex to the present order are considered likely to be able to furnish information on the questions submitted to the Tribunal for an advisory opinion;

Invites, in accordance with article 113, paragraph 3, of the Rules of the Tribunal, the State Parties to the Convention, the Commission and the other organizations referred to above to present written statements on the questions submitted to the Tribunal for an advisory opinion;

Fixes, in accordance with article 133, paragraph 3, of the Rules of the Tribunal, 16 May 2023 as the time limit within which written statements may be presented to the Tribunal;

Decides, in accordance with article 133, paragraph 4, of the Rules of the Tribunal, that oral proceedings shall be held;

Reserves the subsequent procedure for further direction.

Request for an Advisory Opinion Submitted by COSIS, Order of 16 December 2022.

For more information see the ITLOS Press Release.

By Order of 4 October 2022 in the Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) the International Court of Justice issued a decision on the organisation of the public hearings. Having regard to Article 48 of the ICJ Statute and to Articles 54(1) and 61(1) of the Rules of Court the ICJ stated and decided that:

Whereas, in the circumstances of the case, before proceeding to any consideration of technical and scientific questions in relation to the delimitation of the continental shelf between Nicaragua and Colombia beyond 200 nautical miles from the baselines from which the breadth of the territorial sea of Nicaragua is measured, the Court considers it necessary to decide on certain questions of law, after hearing the Parties thereon,

Decides that, at the forthcoming oral proceedings in the case, the Republic of Nicaragua and the Republic of Colombia shall present their arguments exclusively with regard to the following two questions:

(1) Under customary international law, may a State’s entitlement to a continental shelf beyond 200 nautical miles from the baselines from which the breadth of its territorial sea is measured extend within 200 nautical miles from the baselines of another State?

(2) What are the criteria under customary international law for the determination of the limit of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured and, in this regard, do paragraphs 2 to 6 of Article 76 of the United Nations Convention on the Law of the Sea reflect customary international law? and

Reserves the subsequent procedure for further decision.

Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Order of 4 October 2022, pp. 2-3

As noted in both of the two declarations appended to the Order, the division of the oral proceedings on the merits into two separate parts was previously unprecedented. The Joint Declaration of Judges Tomka, Xue, Robinson, Nolte and Judge ad hoc Skotnikov offers critical reflection on the Order of 4 October 2022, while the Declaration of Judge Abraham is supportive of the Order of 4 October 2022. For further information see the ICJ Press Release No. 2022/49.

On 1 August 2022 the Court of Justice of the European Union delivered a Judgment in the Joined Cases C-14/21 and C-15/21 (Sea Watch eV v Ministero delle Infrastrutture e dei Trasporti and Others). The case concerned the division of powers between port states and flag states under EU law (Directive 2009/16; Italian domestic transposition (Legislative Decree No 53/2011)) and international law (UNCLOS; SOLAS; SAR Convention; IMO Resolution A.1138(31) and customary international law) in the context of Italia’s port state control of a German flagged cargo ships purported to be “systematically carrying out activities relating to the search for and rescue of persons at sea”. Law of the sea scholars may wish to consult the full text of the Judgment to view the Court’s interpretations of law of the sea instruments, in particular concerning the duty to render assistance at sea, as well as the interpretation of port state control under SOLAS and IMO Resolution A.1138(31) – which may have comparative application to other IMO and ILO conventions which utilise similar provisions, or fall under similar IMO guidance via IMO Resolution A.1138(31).

The operative part of the Judgment (para 160, emphasis added) held:

1. Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control, as amended by Directive (EU) 2017/2110 of the European Parliament and of the Council of 15 November 2017, must be interpreted as:

– applying to ships which, although classified and certified as cargo ships by the flag State, are in practice being systematically used by a humanitarian organisation for non-commercial activities relating to the search for and rescue of persons in danger or distress at sea; and

– precluding national legislation ensuring its transposition into domestic law from limiting its applicability only to ships which are used for commercial activities.

2. Article 11(b) of Directive 2009/16, as amended by Directive 2017/2110, read in conjunction with Part II of Annex I to that directive, as amended, must be interpreted as meaning that the port State may subject ships which systematically carry out search and rescue activities and which are located in one of its ports or in waters falling within its jurisdiction, having entered those waters and after all the operations relating to the transhipment or disembarking of persons to whom their respective masters have decided to render assistance have been completed, to an additional inspection if that State has established, on the basis of detailed legal and factual evidence, that there are serious indications capable of proving that there is a danger to health, safety, on-board working conditions or the environment, having regard to the conditions under which those ships operate.

3. Article 13 of Directive 2009/16, as amended by Directive 2017/2110, must be interpreted as meaning that, during more detailed inspections organised pursuant to that article, the port State has the power to take account of the fact that ships which have been classified and certified as cargo ships by the flag State are, in practice, being systematically used for activities relating to the search for and rescue of persons in danger or distress at sea in the context of a control intended to assess, on the basis of detailed legal and factual evidence, whether there is a danger to persons, property or the environment, having regard to the conditions under which those ships operate. By contrast, the port State does not have the power to demand proof that those ships hold certificates other than those issued by the flag State or that they comply with all the requirements applicable to another classification.

4. Article 19 of Directive 2009/16, as amended by Directive 2017/2110, must be interpreted as meaning that, in the event that it is established that ships which are, in practice, being systematically used for activities relating to the search for and rescue of persons in danger or distress at sea, despite having been classified and certified as cargo ships by a Member State which is the flag State, have been operated in a manner posing a danger to persons, property or the environment, the Member State which is the port State may not make the non-detention of those ships or the lifting of such a detention subject to the condition that those ships hold certificates appropriate to those activities and comply with all the corresponding requirements. By contrast, that State may impose predetermined corrective measures relating to safety, pollution prevention and on-board living and working conditions, provided that those corrective measures are justified by the presence of deficiencies which are clearly hazardous to safety, health or the environment and which make it impossible for a ship to sail under conditions capable of ensuring safety at sea. Such corrective measures must, in addition, be suitable, necessary, and proportionate to that end. Furthermore, the adoption and implementation of those measures by the port State must be the result of sincere cooperation between that State and the flag State, having due regard to the respective powers of those two States.

Sea Watch eV v Ministero delle Infrastrutture e dei Trasporti and Others, Judgment [160, emphasis added]

For more information see the CJEU Press Release No 138/22.

The Court of Justice of the European Union (CJEU) delivered judgment on Case C-700/20 (London Steam-Ship Owners’ Mutual Insurance Association Limited v. Kingdom of Spain). This corresponds to a request for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court) (United Kingdom). The case relates to the Prestige sinking, and the CJEU found that arbitration proceedings initiated in the United Kingdom cannot block the recognition of the Spanish judgment ordering the insurer to pay compensation for the damage caused by the oil spill (see previous De Maribus report).

The CJEU held that Regulation No 44/2001 (on jurisdiction and the recognition and enforcement of judgments in civil and commercial) must be interpreted as meaning that a judgment entered by a court of a Member State in the terms of an arbitral award cannot prevent, in that Member State, the recognition of a judgment given in another Member State where a judicial decision resulting in an outcome equivalent to the outcome of that award could not have been adopted by a court of the first Member State without infringing the provisions and the fundamental objectives of that regulation, in particular as regards the relative effect of an arbitration clause included in the insurance contract in question and the rules on lis pendens. In doing so, the Court ensures, in essence, that those provisions and fundamental objectives cannot be circumvented by means of arbitration proceedings followed by judicial proceedings seeking to have the terms of the arbitral award entered in a judicial decision.

The judgment (20 June 2022) may be found here and the Opinion of the Advocate General (5 May 2022) is available here. See also the CJEU press release.

On 21 April 2022 the ICJ delivered its Judgment on the merits, Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Judgment. This Judgment was accompanied by 3 Dissenting Opinions (Judge Abraham; Judge Nolte; Judge ad hoc McRae) 4 Declarations (Vice-President Gevorgian; Judge Bennouna; Judge Xue; Judge Iwasawa) and 3 Separate Opinions (Judge Tomka; Judge Yusuf; Judge Robinson). Previously, the ICJ delivered its Preliminary Objections, Judgment of 17 March 2016 and the previous decisions on sovereignty over certain maritime features and maritime delimitation in the Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012 formed an integral part of the legal and geographic background to this case.

The Judgment of 21 April 2022 includes, among others, significant statements on the scope of the customary international law of the sea, the scope of coastal state rights in the contiguous zone, rights and duties concerning freedom of navigation and marine environmental protection, exceptionalism of historic fishing rights, and the scope of straight baselines and their relationship to other rights and duties in the law of the sea. The operative clause (paragraph 261, votes omitted) states:

THE COURT,
(1) By ten votes to five,
Finds that its jurisdiction, based on Article XXXI of the Pact of Bogotá, to adjudicate upon the dispute regarding the alleged violations by the Republic of Colombia of the Republic of Nicaragua’s rights in the maritime zones which the Court declared in its 2012 Judgment to appertain to the Republic of Nicaragua, covers the claims based on those events referred to by the Republic of Nicaragua that occurred after 27 November 2013, the date on which the Pact of Bogotá ceased to be in force for the Republic of Colombia;

(2) By ten votes to five,
Finds that, by interfering with fishing and marine scientific research activities of Nicaraguan-flagged or Nicaraguan-licensed vessels and with the operations of Nicaraguan naval vessels in the Republic of Nicaragua’s exclusive economic zone and by purporting to enforce conservation measures in that zone, the Republic of Colombia has violated the Republic of Nicaragua’s sovereign rights and jurisdiction in this maritime zone;

(3) By nine votes to six,
Finds that, by authorizing fishing activities in the Republic of Nicaragua’s exclusive economic zone, the Republic of Colombia has violated the Republic of Nicaragua’s sovereign rights and jurisdiction in this maritime zone;

(4) By nine votes to six,
Finds that the Republic of Colombia must immediately cease the conduct referred to in points (2) and (3) above;

(5) By thirteen votes to two,
Finds that the “integral contiguous zone” established by the Republic of Colombia by Presidential Decree 1946 of 9 September 2013, as amended by Decree 1119 of 17 June 2014, is not in conformity with customary international law, as set out in paragraphs 170 to 187 above;

(6) By twelve votes to three,
Finds that the Republic of Colombia must, by means of its own choosing, bring into conformity with customary international law the provisions of Presidential Decree 1946 of 9 September 2013, as amended by Decree 1119 of 17 June 2014, in so far as they relate to maritime areas declared by the Court in its 2012 Judgment to appertain to the Republic of Nicaragua;

(7) By twelve votes to three,
Finds that the Republic of Nicaragua’s straight baselines established by Decree No. 33-2013 of 19 August 2013, as amended by Decree No. 17-2018 of 10 October 2018, are not in conformity with customary international law;

(8) By fourteen votes to one,
Rejects all other submissions made by the Parties.

Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Judgment [261].

See also the Summary 2022/3 (21 April 2022).

The Supreme Court of the Republic of Vanuatu decided on 10 December 2021 on the case between Vanuatu Ferry Limited and Republic of Vanuatu (Case No. 20/1901 SC/JUDR).

This was a claim for judicial review in relation to decisions by the Director of the National Disaster Management Office (NDMO) and Director of Immigration of Vanuatu to refuse entry into Vanuatu of the claimant’s vessel, the Vanuatu Cargo, a Vanuatu-flagged ship, and its crew. It was held that in the circumstances, the defendant’s refusal to permit food and water to be delivered to the vessel’s crew constituted a breach of its obligations under article 94 of UNCLOS to ensure the safety of crew members at sea and that, accordingly, it was unlawful. The defendant’s decisions also breached article 28 of the IHR.

The full judgment file is available here or here.

The International Court of Justice has delivered on 12 October 2021 its Judgment in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya). The Court found that there was no agreed maritime boundary between the Federal Republic of Somalia and the Republic of Kenya and proceeded to determine the course of that maritime boundary. The Court also rejected the claim made by the Federal Republic of Somalia concerning the allegation that the Republic of Kenya, by its conduct in the disputed area, had violated its international obligations. The judgment may be found here.

As previously reported, in May 2021 Switzerland and Nigeria concluded a Memorandum of Understanding (MoU) providing for the immediate release of the M/T “San Padre Pio” vessel and the eventual discontinuance of The M/T “San Padre Pio” (No. 2) Case (Switzerland/Nigeria) proceedings. Subsequently, in June 2021 ITLOS Order 2021/3 fixed 9 September 2021 as the date for the opening of the oral proceedings. As communicated by Switzerland, proceedings will be terminated under the MoU “only from the moment that the M/T ‘San Padre Pio’ enters the high seas, or the territorial sea or Exclusive Economic Zone of another State” (Order 2021/4, para 7). Furthermore, Switzerland states “the M/T ‘San Padre Pio’ is currently not in a state allowing it to swiftly depart from Nigeria […] remains uncertain when and under what conditions the vessel might be able to depart” and therefore requested “in view of the ongoing implementation of [the MoU] […] the opening of the oral proceedings be postponed until a later date towards the end of fall 2021” (Order 2021/4, paras 5-7). Nigeria did not respond to indicate its views on postponement (Order 2021/4, para 9). The President of the Tribunal, having regard to the special circumstances and views of the Parties (see in particular: Articles 69(2)(c)-(d) and 69(3) of the Rules of the Tribunal) thus:

Decides to postpone the opening of the oral proceedings until a later date to be fixed after consultations with the Parties

Order 2021/4 of 10 August 2021

The Court of Justice of the European Union (CJEU) delivered judgment on Case C-786/19 (The North of England P & I Association Ltd v Bundeszentralamt für Steuern). This corresponds to a request for a preliminary ruling from the Finanzgericht Köln (Finance Court, Cologne, Germany).

The CJEU held that “where insurance contracts concern the provision of cover for various risks linked to the operation of sea-going vessels which are entered in the shipping register maintained by a Member State but which fly the flag of another Member State or of a third State under a temporary flagging-out authorisation, the State that must be considered to be the ‘Member State of registration’ of the ship concerned and therefore, to be ‘the Member State where the risk is situated’, within the meaning of those provisions, holding the exclusive power to tax premiums paid with respect to those insurance contracts, is the Member State which maintains the shipping register in which the primary purpose of entering that ship is to prove ownership of that ship”.

The judgement (15 April 2021) may be found here and the Opinion of the Advocate General (27 January 2021) is available here.

Proceedings were instituted (5 March 2021) before the International Court of Justice by way of a Special Agreement between the Gabonese Republic and the Republic of Equatorial Guinea, which was signed in 2016 and entered into force in March 2020. In the Special Agreement, the Parties request the Court “to determine whether the legal titles, treaties and international conventions invoked by the Parties have the force of law in the relations between the Gabonese Republic and the Republic of Equatorial Guinea in so far as they concern the delimitation of their common maritime and land boundaries and sovereignty over the islands of Mbanié/Mbañe, Cocotiers/Cocoteros and Conga”. Further information here.

On the 27 January 2021, the United Nations Human Rights Committee decided two parallel proceedings, brought against Italy and Malta respectively, concerning their response to a vessel in distress in the Mediterranean Sea and the obligations of Italy and Malta under the International Covenant on Civil and Political Rights. The delayed action and failed search and rescue operation of 11 October 2013 were found to have contributed to the deaths of over 200 people estimated to be on board the vessel.

In CCPR/C/130/DR/3042/2017 the Committee considered that the individuals on the vessel in distress were subject to Italy’s jurisdiction for the purposes of the Covenant because ‘a special relationship of dependency had been established between the individuals on the vessel in distress and Italy’ (paras 7.1-7.8). Italy failed to demonstrate it met its due diligence obligations under Article 6(1) of the Covenant (paras. 8.1-8.5) and its duty to conduct a prompt investigation of the allegations relating to a violation of the rights to life under Article 6(1), read in conjunction with Article 2(3) of the Covenant (paras. 8.6-8.7). Three dissenting opinions were attached, namely by Yuval Shany, Christof Heyns and Photini Pazartzis; Andreas Zimmermann; and David Moore. Four concurring opinions were attached, namely by Gentian Zyberi; José Santos-Pais; Vasilka Sancin; and Hélène Tigroudja.

In CCPR/C/128/D/3043/2017 the Committee considered that Malta exercised effective control over the rescue operation as the vessel in distress was located in the Maltese Search and Rescue area (referring to UNCLOS, SAR Convention, and SOLAS) and Malta had formally accepted to assume the coordination of the rescue efforts (paras. 6.5-6.7). However, the authors of the communication failed to exhaust available domestic remedies, meaning the communication was inadmissible (paras. 6.8-6.9). Three dissention opinions were attached, namely by Andreas Zimmermann; Gentian Zyberi, Arif Bulkan and Duncan Muhumuza; and Hélène Tigroudja.

The Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) formed to deal with the Dispute concerning the delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives) delivered on 28 January 2021 its Judgment on the Preliminary Objections raised by the Maldives. The Special Chamber concluded that “it has jurisdiction to adjudicate upon the dispute concerning the delimitation of the maritime boundary between the Parties in the Indian Ocean and that the claim submitted by Mauritius in this regard is admissible” (paragraph 351). For further information see here.

On the 2 July 2020 the Arbitral Tribunal (UNCLOS, Annex VII) in respect of the ‘Enrica Lexie’ Incident (Italy v. India), PCA Case No. 2015-28, issued its Award. In accordance with the Rules of Procedure (art. 23(5)), as amended by Procedural Order No. 7, the full (redacted) Award will be published following the Parties’ confidentiality review. An Award – Extracts for Advance Publication is available, containing the operative part of the Award (para. 1094). As an edited summary:

A. In relation to jurisdiction and admissibility
1. Finds (4-1 votes) there is a dispute concerning the interpretation or application of UNCLOS;
2. Finds (4-1 votes) the Arbitral Tribunal has jurisdiction over the dispute, subject to its decision on India’s Submission (1.a);
3. Finds (unanimously) India’s counter-claims are admissible;
4. Finds (3-2 votes) in respect of Italy’s Submission (2)(f), that UNCLOS arts. 2(3), 56(2) and 58(2) are not applicable;
5. Finds (3-2 votes) it has jurisdiction concerning the Marines’ immunity;
6. Finds (unanimously), concerning India’s submission (1.a), it’s unnecessary to determine the compatibility of India’s 1976 Maritime Zone Act and its 1981 Notification with UNCLOS.

B. In relation to the merits of the dispute between the Parties
1. Finds (unanimously), concerning Italy’s Submission (2)(b)-(e) and (g):

a. India did not breach UNCLOS art. 87(1)(a);
b. India did not violate UNCLOS art. 92(1);
c. UNCLOS arts. 97(1) and 97(3) are not applicable;
d. India did not violated UNCLOS art. 100 and art. 300 cannot be invoked;

2. Decides (3-2 votes), concerning Italy’s Submission (2)(f), the Marines are entitled to immunity and India is precluded from exercising jurisdiction thereof;
3. Decides (3-2 votes) concerning Italy’s Submission (3)(a) and (c), India must cease exercising criminal jurisdiction over the Marines and no other remedies are required;
4. Finds, concerning India’s Submissions (4), (5), and (7):

a. (3-2 votes) Italy did not violate UNCLOS art. 56;
b. (3-2 votes) Italy did not violated UNCLOS art. 58(3);
c. (unanimously) Italy did not infringed UNCLOS art. 88;

5. Finds (unanimously) concerning India’s Submission (6), Italy’s interference with the navigation of the “St. Antony” breached UNCLOS arts. 87(1)(a) and 90;
6. Decides (unanimously) concerning India’s Submission (8):

a. A finding that Italy breached UNCLOS arts. 87(1)(a) and 90 constitutes adequate satisfaction for India’s non-material interests;
b. India is entitled to compensation in connection with the loss of life, physical harm, material damage to property and moral harm suffered, which cannot be made good through restitution;
c. Parties are invited to consult on the quantification of compensation;
d. The Arbitral Tribunal retains jurisdiction should either Party or both Parties wish to apply for a ruling on the quantification of compensation, subject to the closure of proceedings should no application be received within one year.

C. In relation to the costs of these proceedings
Decides each Party shall bear its own costs.

For further information see the full unedited Award – Extracts for Advance Publication and previous reports.

Update (03/07/2020): For further information see India’s MEA Press Release and Italy’s MFAIC Press Release.

The Court of Justice of the European Union (CJEU) delivered judgment on Case C-641/18 (LG and Others v Rina SpA and Ente Registro Italiano Navale) on 7 May 2020. It was found that the victims of the sinking of a vessel, which sailed under the flag of Panama, may bring an action for damages before the Italian courts against the Italian organisations which classified and certified that vessel. Those organisations could rely on immunity from jurisdiction only in so far as their activities constituted an expression of the public powers of the Panamanian State.

The CJEU held, first, that an action for damages, brought against private-law corporations engaged in the classification and certification of ships on behalf of and upon delegation from a third State, falls within the concept of ‘civil and commercial matters’, within the meaning of Article 1(1) of Regulation No 44/2001 (‘the Brussels I Regulation’) and, therefore, within the scope of that regulation, provided that that classification and certification activity is not exercised under public powers, within the meaning of EU law. Secondly, the CJEU held that the principle of customary international law concerning immunity from jurisdiction does not preclude the national court seised from exercising the jurisdiction provided for by that regulation in a dispute relating to such an action, where that court finds that such corporations have not had recourse to public powers within the meaning of international law.

The press release of the judgement is available here. The Opinion of the Advocate General Szpunar, delivered in January 2020, is available here. The judgement is available here.

On 21 February 2020 the Arbitral Tribunal (Annex VII of UNCLOS) in the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation) issued its Award Concerning Preliminary Objections of the Russian Federation.  The Parties had 21 days to consider whether any part of the Award should be designated as containing “confidential information”, resulting in publication of the Award being delayed until 16 March 2020. The Arbitral Tribunal unanimously:

a) Upholds the Russian Federation’s objection that the Arbitral Tribunal has no jurisdiction over Ukraine’s claims, to the extent that a ruling of the Arbitral Tribunal on the merits of Ukraine’s claims necessarily requires it to decide, directly or implicitly, on the sovereignty of either Party over Crimea;
b) Finds that the Russian Federation’s objection that the Arbitral Tribunal has no jurisdiction over Ukraine’s claims concerning activities in the Sea of Azov and in the Kerch Strait does not possess an exclusively preliminary character, and accordingly decides to reserve this matter for consideration and decision in the proceedings on the merits;
c) Rejects the other objections of the Russian Federation to its jurisdiction;
d) Requests Ukraine to file a revised version of its Memorial, which shall take full account of the scope of, and limits to, the Arbitral Tribunal’s jurisdiction as determined in the present Award;
e) Decides that each Party shall bear its own costs. [Award, para. 492]

The Ministry of Foreign Affairs of Ukraine and the Ministry of Foreign Affairs of the Russian Federation already responded to the Award on the 21 February 2020 and 22 February 2020, respectively. Both signal that they will participate in the next phase of the proceedings on the merits.

For further information see the PCA press releases (1) (2).

On 7 January 2020 the UN Human Rights Committee issued its Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2728/2016 (adopted 24 October 2019). Communication No. 2728/2016 was submitted by Ioane Teitiota, claiming New Zealand violated his right to life under the International Covenant on Civil and Political Rights, Article 6(1), by removing him to Kiribati in September 2015.

Concerning admissibility:

“[T]he Committee considers that the author sufficiently demonstrated, for the purpose of admissibility, that due to the impact of climate change and associated sea level rise on the habitability of the Republic of Kiribati and on the security situation in the islands, he faced as a result of the State party’s decision to remove him to the Republic of Kiribati a real risk of impairment to his right to life under article 6 of the Covenant” (para. 8.6).

Concerning the merits:

“The Committee is of the view that without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.

9.12 In the present case, the Committee accepts the author’s claim that sea level rise is likely to render the Republic of Kiribati uninhabitable. However, it notes that the timeframe of 10 to 15 years, as suggested by the author, could allow for intervening acts by the Republic of Kiribati, with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population […] the facts before it do not permit it to conclude that the author’s removal to the Republic of Kiribati violated his rights under article 6 (1) of the Covenant” (paras. 9.11-9.12; 10).

Vasilka Sancin and Duncan Laki Muhumuza each annexed individual dissenting opinions concerning the burden of proof and access to drinking water.

By the Special Agreement and Notification of 17 December 2019, Switzerland and Nigeria have agreed to transfer their dispute concerning the arrest and detention of the M/T “San Padre Pio”, its crew and cargo to ITLOS (previously submitted to an UNCLOS Annex VII Arbitral Tribunal). Agreement was reached following consultations held 2-3 December 2019, as reflected in the Minutes of Consultations.

For further information see Case No. 29 and the ITLOS Press Release 298.  See also the related Case No. 27: The M/T “San Padre Pio” Case (Switzerland v. Nigeria), Provisional Measures.

The Tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea in the matter of the Duzgit Integrity Arbitration has issued its final Award on Reparation in respect of the dispute between Malta and São Tomé e Príncipe (18 December 2019). These proceedings concerned the arrest by São Tomé of a Maltese flagged vessel – the Duzgit Integrity – when it attempted to undertake a ship-to-ship (“STS”) cargo transfer in São Tomé’s archipelagic waters, and the subsequent measures taken by São Tomé in relation to the vessel, its master, cargo, owner and charterer.

This Final Award follows a previous Award delivered by the PCA (see De Maribus report here). Following the issuance of the Tribunal’s 5 September 2016 Award, the proceedings were temporarily suspended while the Parties pursued settlement negotiations, which were ultimately unsuccessful. In its present Award on Reparation, the Tribunal scrutinizes Malta’s claim for reparation and orders São Tomé to pay compensation in respect of certain of Malta’s heads of claim, in particular by addressing the following:

• Whether Malta has sufficiently substantiated its claims and established causation between its loss and São Tomé’s unlawful conduct;
• Whether the settlement agreement mitigates any of the damages suffered by DS tankers;
• Whether the acts and omissions of the Duzgit integrity, its master, owner and charterer mitigate any of the damages claimed by Malta.

More information about this case can be found here.

Advocate General Priit Pikamäe proposes the Court of Justice of the European Union (CJEU) to declare that it does not have jurisdiction to hear an action brought by Slovenia, who submits that Croatia is preventing it from fully exercising its sovereignty throughout its maritime territory. The Advocate General is of the view that the delimitation of national territory does not fall within the sphere of competence of the European Union or of the CJEU (CJEU press release of 11 December 2019).

Both parties submitted a territorial and maritime boundary dispute to the Permanent Court of Arbitration (PCA), who issued a Final Award determining the creation of a “Junction Area” and setting the terms of the special regime to apply therein. The PCA emphasized that this special regime is intended to guarantee both the integrity of Croatia’s territorial sea and Slovenia’s freedoms of communication between its territory and the high seas (PCA press release of 29 June 2017). Croatia decided to withdraw from the 2009 Arbitration Agreement in 29 July 2015 and later stated that this award “does not in any way bind Croatia and Croatia shall not implement it” (Croatia Ministry of Foreign and European Affairs press release of 29 June 2017).

In its action brought to the CJEU (2018/C 399/27) on 13 July 2018, Slovenia argues that Croatia “unilaterally refuses to fulfil its obligations under the arbitration award”, namely in “denying Slovenian fishing vessels free access to the marine waters which the arbitration award of 2017 has defined as Slovene, and, a fortiori, free access to Croatian waters falling within the scope of the mutual access regime”.

More information on Case C-457/18 shall be made available here.

The “Junction Area”, as determined by the PCA in 2017. Source: PCA Case No. 2012-04, at page 347

The International Criminal Court (ICC) Prosecutor has re-filed the Final Decision (2 December 2019) concerning the “Article 53(1) Report” (ICC-01/13-6-AnxA), as revised and refiled, on the Situation on the Registered Vessels Of The Union Of The Comoros, The Hellenic Republic, And The Kingdom Of Cambodia (ICC-01/13).

The Prosecutor maintains her view that the preliminary examination of this situation must be closed and argues that “there remains no reasonable basis to proceed with an investigation, since there is no reasonable basis to conclude that any potential case arising from the situation would be of sufficient gravity to be admissible before the Court”. This decision was taken without prejudice to her conclusion that, “on the information made available, there is a reasonable basis to believe that war crimes were committed by members of the Israel Defence Forces (“IDF”) in the boarding of the Mavi Marmara, and its aftermath, resulting in 10 fatalities, the wounding of as many as 55 people, and outrages upon the personal dignity of potentially many others during the voyage to Ashdod”.

Although Israel is not a State Party, according to article 12(2)(a) of the Rome Statute, the ICC can exercise its jurisdiction in relation to the conduct of non-Party State nationals alleged to have committed Rome Statute crimes on the territory of, or on vessels and aircraft registered in, an ICC State Party. More information is available here.

The Republic of Mauritius and the Republic of Maldives transmitted a special agreement and notification to the International Tribunal for the Law of the Sea to submit their dispute concerning the delimitation of the maritime boundary in the Indian Ocean to a special chamber of the Tribunal to be constituted pursuant to article 15, paragraph 2, of the Statute of the Tribunal. The Parties agreed to transfer the arbitral proceedings instituted on 18 June 2019 by Mauritius under Annex VII of the United Nations Convention on the Law of the Sea to a special chamber of the Tribunal. The Special Agreement, the Order and the press release are available here.

The International Tribunal for the Law of the Sea (ITLOS) has delivered its Order of 6 July 2019 in respect of Case No. 27, The M/T “San Padre Pio” Case (Switzerland v. Nigeria), Provisional Measures. The Tribunal concluded that prima facie the UNCLOS Annex VII arbitral tribunal would have jurisdiction over the submitted dispute. The Tribunal prescribed various provisional measures under Article 290(5) of UNCLOS.

For an overview see the press release. Two Declarations, one Joint Declaration, three Separate Opinions and four Dissenting Opinions were appended to the Order of 6 July 2019, available here.

A request for the prescription of provisional measures under article 290, paragraph 5, of the United Nations Convention on the Law of the Sea has been submitted to the International Tribunal for the Law of the Sea in a dispute between Switzerland and Nigeria concerning the arrest and detention of the M/T “San Padre Pio”, its crew and cargo. According to the Request of Switzerland of 21 May 2019, the “San Padre Pio”, a motor tanker flying the flag of Switzerland, “was intercepted and arrested by the Nigerian Navy on 23 January 2018” while it was engaged in ship-to-ship transfers of gasoil in the exclusive economic zone (EEZ) of Nigeria. The vessel was then ordered to proceed to Port Harcourt (Nigeria), where it is still detained. Switzerland submits that Nigeria has “breached its obligations owed to Switzerland in regard to its freedom of navigation and its right to exercise exclusive jurisdiction over the “San Padre Pio””. The request is available here.

On the 16 April 2019, Ukraine submitted a request to the International Tribunal for the Law of the Sea (ITLOS) for the prescription of provisional measures under UNCLOS, Article 290(5)  in a dispute between Ukraine and the Russian Federation concerning the immunity of three Ukrainian naval vessels and the twenty-four servicemen on board.

For more information see Case No. 26 and the press releases of ITLOS, Ukraine MFA and Russia MFA.

On the 10 April 2019, the International Tribunal for the Law of the Sea (ITLOS) delivered its Judgment in The M/V “Norstar” Case (Panama v. Italy). The Tribunal found that Italy had violated UNCLOS, Article 87(1) (by 15 votes to 7), that UNCLOS, Article 87(2) was not applicable to the case (unanimously), and that Italy did not violate UNCLOS, Article 300 (20 votes to 2). ITLOS decided to award Panama compensation (with interest) for the loss of the M/V “Norstar” (15 votes to 7).

For more information, see the Judgement and furthermore the case page for numerous Declarations, Separation Opinions and a Joint Dissenting Opinion. As previously reported, incidental proceedings occurred in respect of Preliminary Objections.