Category Archives: Jurisprudence

ITLOS: The M/T “San Padre Pio” (No. 2) Case (Switzerland/Nigeria)

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.

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PCA: The Duzgit Integrity Arbitration (Malta v. São Tomé and Príncipe) Award on Reparation delivered

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.

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CJEU: Advocate General in Slovenia v Croatia (Case C-457/18) declines jurisdiction

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.

Capture

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

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ICC: Final Decision on the “Situation on the Registered Vessels of Comoros, Greece and Cambodia” re-filed

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.

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Russia/Ukraine: Three Ukrainian Naval Vessels Returned to Ukraine

As previously reported, the International Tribunal for the Law of the Sea (ITLOS) in its Order of 25 May 2019 of Case No. 26, Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures, prescribed:

“The Russian Federation shall immediately release the Ukrainian naval vessels Berdyansk, Nikopol and Yani Kapu, and return them to the custody of Ukraine” (para. 124(1)(a)).

On 18 November 2019 the Ukrainian naval vessels “Nikopol”, “Berdyansk” and “Yani Kapu” were returned by Russia to Ukrainian custody.

For further information see the press releases published by the Ministry of Foreign Affairs of Ukraine and Russia respectively. The Russian press release makes no reference to the ITLOS Order of 25 May 2019. Russia’s previous submission of an initial report to ITLOS (prescribed in Order of 25 May 2019, para. 124(2)), reaffirmed “the stance of the Russian Federation that the procedures for settling arguments under the UN Convention of the Sea are not applicable in this case”.

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ITLOS: Mauritius/Maldives dispute submitted to special chamber

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.

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ITLOS: The M/T “San Padre Pio” Case (Switzerland v. Nigeria), Provisional Measures Order

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 MeasuresThe 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.

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