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.
Category Archives: Jurisprudence
Concerning The M/T “San Padre Pio” (No. 2) Case (Switzerland/Nigeria), on 29 December 2021, as per the request of Switzerland to which Nigeria had no objection, the President of the Tribunal in accordance with Article 105 of the Rules of the Tribunal:
Places on record the discontinuance, by agreement of the Parties, of the proceedings initiated on 17 December 2019 by Switzerland and Nigeria; and
Orders that the case be removed from the List of casesOrder 2021/6 of 29 December 2021.
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, under Paragraph 4 of the MoU, “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”. As per the letters submitted to the Tribunal in December 2021 by the Agent of Switzerland and the Agent of Nigeria, respectively, on 10 December 2021, the M/T San Padre Pio was released, departed the maritime zones of Nigeria and entered the exclusive economic zone of Bénin (Order 2021/6 paras 11-14). Finally, Paragraphs 5-6 of the MoU are quoted as providing that:
For the sake of clarity, upon the discontinuance of these proceedings, the Provisional Measures Order dated 6th July, 2019, made in: The M/T ‘San Padre Pio’ case (Switzerland/Nigeria) (Case No. 27) will cease to have effect
This agreement constitutes a full and final settlement of the matter relating to the MIT ‘San Padre Pio’ between the PartiesOrder 2021/6 para 15
The Supreme Federal Court (STF) of Brazil upheld the appeal of family members of a fisherman who want the Federal Republic of Germany to compensate them for his death in 1943, when a fishing boat was sunk by a German submarine off the Brazilian coast. By majority vote, the STF established the thesis that unlawful acts committed by foreign States in violation of human rights do not enjoy immunity from jurisdiction in Brazil. Reference: (ARE) 954858.
The attack on the fishing boat Changri-lá killed ten fishermen in July 1943, during World War II, in Brazilian territorial sea, near Cabo Frio (RJ). In 2001, the Maritime Court officially recognized that the cause of the wreck was the torpedoing of the vessel by a German U-199 submarine, leading the grandchildren and widows of one of the fishermen’s grandchildren to file, in 2006, an action for compensation for material and moral damages. In the first instance, the action for reparation was dismissed without a resolution on the merits. The family appealed to the Superior Court of Justice (STJ), but the appeal was not admitted based on the jurisprudence of that Court, which prevents the foreign State from being held liable for an act of war.
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 PartiesOrder 2021/4 of 10 August 2021
CJEU: Case C-786/19 (The North of England P & I Association Ltd v Bundeszentralamt für Steuern) judgement delivered
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 Indian Supreme Court, by Order of 15 June 2021 in Special Leave Petition (Civil) No 20370 of 2012: Massimilano Latorre and Ors vs Union of India and Ors, quashed the criminal proceedings against the Italian marines involved in the ‘Enrica Lexie’ Incident and disposed of all related pending matters before the court (Order, Paragraph 7). As per The ‘Enrica Lexie’ Incident (Italy v. India) Award, Paragraph 1094(B)(3), the Arbitral Tribunal had decided “India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marines”. Likewise, in respect of The ‘Enrica Lexie’ Incident (Italy v. India) Award, Paragraph 1094(B)(6)(b) concerning compensation due by Italy, Italy and India “agreed to the amount of INR 100,000,000 (INR 100 million) to be paid by Italy as total compensation under all the four heads of compensable loss identified by the Arbitral Tribunal’s award” (Order, Paragraph 3). Finally, concerning Italy’s commitment to resume its criminal investigation, expressed during the ‘Enrica Lexie’ Incident (Italy v. India) proceedings, “Italy will resume its criminal investigation in the events of 15.02.2012 and that both India and Italy will cooperate with each other in pursuit of that investigation” (Order, Paragraph 3).
On 20 May 2021 the Nigerian minister of justice and the Swiss ambassador in Nigeria signed a memorandum of understanding providing for the immediate release of the M/T “San Padre Pio” vessel, a vessel detained in January 2018 in Nigeria’s exclusive economic zone. According to the Press Release, “Once the vessel has been able to leave Nigeria’s exclusive economic zone, the legal proceeding pending before the International Tribunal for the Law of the Sea (ITLOS) in Hamburg can be terminated.” Therefore, upon successful implementation of the MoU, The M/T “San Padre Pio” (No. 2) Case (Switzerland/Nigeria) currently before ITLOS will be terminated (see previous reporting).
By letter dated 11 March 2021, the Agent of Kenya in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) informed the ICJ that Kenya would not be participating in the hearings, including the reasons for its non-participation. Kenya requested “the opportunity to address the ICJ orally before the commencement of the hearings” and enclosed a 175 page ‘Position Paper’ “for consideration by the Judges even as the hearing proceeds without Kenya’s participation”. Somalia opposed both requests and the ICJ “[h]aving considered the views of the Parties, the Court decided not to grant either of the two requests made by Kenya”. Despite Kenya’s non-participation, hearings proceed on 15-24 March 2021 and the ICJ “has available to it the Counter-Memorial and Rejoinder filed by Kenya, as well as multiple volumes of materials that were produced by Kenya”.
For more information see the Verbatim record 2021/2.
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.
UN HR Committee: Decision & Views concerning Communication No. 3043/2017 (A.S., D.I., O.I. and G.D.)
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.
As previously suggested, on 22 August 2020 Russia did exercise its right to submit preliminary objections in the Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation), PCA Case No. 2019-28, contending that the Arbitral Tribunal does not have jurisdiction. Ukraine and Russia disagreed upon whether these preliminary objections are of “an exclusively preliminary character” that may result in bifurcation of the proceedings (Rules of Procedure, Art 11(3)). On 27 October 2020 the Arbitral Tribunal (UNCLOS, Annex VII) issued its Procedural Order No. 2, whereby:
THE ARBITRAL TRIBUNAL HEREBY ORDERS:
1. The Arbitral Tribunal considers that the Preliminary Objections of the Russian Federation appear at this stage to be of a character that justifies having them examined in a preliminary phase, and in accordance with Article 11, paragraph 3, of the Rules of Procedure, decides that the Preliminary Objections of the Russian Federation shall be addressed in a preliminary phase of these proceedings.
2. The proceedings on the merits are hereby suspended.
3. In accordance with paragraph 5(t) of Procedural Order No. l, Ukraine shall file any observations on the Preliminary Objections of the Russian Federation within three months of the date of this Order. Following receipt of these observations, the Arbitral Tribunal will decide whether any further written submissions are needed and, after consultation with the Parties, the time limits for such submissions.
4. If the Arbitral Tribunal, in delivering its award in the preliminary phase of the proceedings in accordance with Article 11 , paragraph 7, of the Rules of Procedure, declares that a Preliminary Objection does not possess an exclusively preliminary character, then, in accordance with
Article 11, paragraph 3, of the Rules of Procedure, that Objection shall be ruled upon in conjunction with the merits.
Judge Gudmundur Eiriksson appended a Dissenting Opinion to the Order of the Arbitral Tribunal. Eiriksson agreed with the decision of the Tribunal but did not share the reasoning of the Tribunal.
See further the PCA Press Release.
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.
On the 22 May 2020 Ukraine submitted its written memorial to the Arbitral Tribunal (UNCLOS, Annex VII) in respect of the Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation), PCA Case No. 2019-28. According to Procedural Order No. 1 (22 November 2019), the Russian Federation shall submit its written memorial within 6 months (para. 4), or preliminary objections within 3 months (para 5; Rules of Procedure (22 November 2019), art. 11). Any preliminary objections that ‘possess an exclusively preliminary character’ are to be examined in a preliminary phase prior to the merits of the case.
On the 26 May 2020 the Russian MFA commented on Ukraine’s submission. The Russian MFA suggests that Ukraine’s written memorial has “reduced the list of its [Ukraine’s] initial claims”. There is also a suggestion that Russia will exercise its right to submit preliminary objections:
Next, Russia will have to file its jurisdictional objections regarding this case by August 22, 2020 under the relevant rules of procedure.
CJEU: Case C-641/18 (LG and Others v Rina SpA and Ente Registro Italiano Navale) judgement delivered
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.
Arbitration: Award on Preliminary Objections of the Russian Federation in Dispute Concerning Coastal State Rights
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.
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.
“[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.
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.
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.
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.
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”.
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.
The International Court of Justice (ICJ), was seised of a dispute between Guatemala and Belize by way of a special agreement. In 2008, the two States concluded an agreement to submit Guatemala’s territorial, insular and maritime claim to the International Court of Justice, which was subsequently amended by a protocol concluded in 2015. The Parties now request the Court to determine in accordance with applicable rules of international law as specified in Article 38(1) of the Statute of the Court any and all legal claims of Guatemala against Belize to land and insular territories and to any maritime areas pertaining to these territories, to declare the rights therein of both Parties, and to determine the boundaries between their respective territories and areas.
More information on the case and the referenda that led to it can be found in the ICJ press release, at the Belize Referendum Commission website and in a presentation held by the Ministry of Foreign Affairs of Guatemala (in Spanish).
ITLOS: Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures
The International Tribunal for the Law of the Sea (ITLOS) has delivered its Order of 25 May 2019 in respect of Case No. 26, Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), 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, three Separate Opinions and one Dissenting Opinion were appended to the Order of 25 May 2019, available here. Ukraine and Russia have both responded through their respective Ministry of Foreign Affairs.
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.
Without prejudice to their legal positions in The Arctic Sunrise Arbitration (Netherlands v. Russia), Russia and The Netherlands have reached a full and final settlement of dispute in respect of the Arctic Sunrise incident of September 2013. The agreement remains confidential, but the Joint Statement of 17 May 2019 nonetheless recognizes an understanding upon the rights and responsibilities of both the coastal state and flag state in the EEZ. This includes recognition of the rights related to peaceful protest. Joint Russian-Dutch research in the Arctic zone of the Russian Federation is also promoted.
ITLOS: Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures
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.
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.
An incident between Ukrainian and Russian governmental vessels occurred in the vicinity of the entrance to the Kerch Strait, 25 November 2018, of which the facts are disputed.
In a letter (2) dated 27 November 2018, Ukraine informed the Arbitral Tribunal in the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation) (previously reported) about the incident, on the basis it aggravated the parties’ dispute. Ukraine also filed its response to Russia’s jurisdictional objections.
On the 29 November 2018 an inter-State application was lodged by Ukraine before the European Court of Human Rights (ECtHR) under Article 33 of the European Convention on Human Rights, Application no. 55855/18, Ukraine v. Russia (VIII). The ECtHR put factual questions to the Russian Government. The Russian Justice Ministry responded, but objected to the Ukrainian application. On the 4 December 2018 the ECtHR, under Rule 39 of the Rules of Court, indicated interim measures to the Russian Government concerning medical treatment for the captive Ukrainian naval personnel.
ICJ: Judgment in the case concerning Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile) delivered
The International Court of Justice delivered its Judgment in the case concerning Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile). In its Judgment, the Court finds that Chile did not undertake a legal obligation to negotiate a sovereign access to the Pacific Ocean for Bolivia. The Court noted that “the statement by Bolivia, when signing UNCLOS, that referred to “negotiations on the restoration to Bolivia of its own sovereign outlet to the Pacific Ocean” did not imply the allegation of the existence of any obligation for Chile in that regard” and that “acquiescence cannot be considered a legal basis of an obligation to negotiate Bolivia’s sovereign access to the sea”. The full text of the Judgment is available here.
PCA: Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (bifurcation of proceedings)
On 20 August 2018, in respect of the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), the Arbitral Tribunal unanimously adopted Procedural Order No. 3 deciding that “the Preliminary Objections of the Russian Federation shall be addressed in a preliminary phase of these proceedings”. Procedural Order No. 4, adopted 27 August 2018, established a timetable for the Parties’ further written pleadings on jurisdiction.
For further information see Procedural Order No. 3, Procedural Order No. 4 and the Statement of the MFA of Ukraine. The US State Department and the Delegation of the European Union to Ukraine have also recently commented on the situation vis-a-vis the Kerch Strait.
The public hearings in the M/V “Norstar” Case (Panama v. Italy) are scheduled to occur 10-15 September 2018, at the International Tribunal for the Law of the Sea (Hamburg, Germany). Members of the general public are requested to register in advance with the Press Office (firstname.lastname@example.org). A live broadcast will also be available (10 a.m. (CET), 10 September 2018).
For more information and the schedule see the ITLOS press release.
The Court of Justice of the European Union (CJEU) has published (11 July 2018) its judgment on Case C-15/17 concerning an oil discharge in the EEZ of Finland by the bulk carrier Bosphorus Queen that took place in 2011. In its decision, the CJEU interpreted the meaning of the expressions “clear objective evidence” and “coastline or related interests” as used in Article 220(6) of the UNCLOS and Article 7(2) of the EC Directive 2005/35 (as amended by EC Directive 2009/123). The CJEU also held that the assessment of a violation, as defined by said articles, takes into consideration:
– the cumulative nature of the damage on several or all of those resources and related interests and the difference in sensitivity of the coastal State with regard to damage to its various resources and related interests;
– the foreseeable harmful consequences of discharge on those resources and related interests, not only on the basis of the available scientific data, but also with regard to the nature of the harmful substance(s) contained in the discharge concerned and the volume, direction, speed and the period of time over which the oil spill spreads
The judgment, as well as the opinion of the Advocate General (delivered on 28 February 2018), may be found here.
In letters dated 29 May 2018, the ICJ informed Malaysia and Singapore that the Court had placed on record the discontinuance, by agreement of the Parties, two interrelated cases initiated by Malaysia in 2017. This concerns both, the Application for revision of the Judgment of 23 May 2008 in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) (Malaysia v. Singapore), and the Request for Interpretation of the Judgment of 23 May 2008 in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) (Malaysia v. Singapore).
For more information, see the press statements of the Singapore Ministry of Foreign Affairs and the Chair of Singapore’s Pedra Branca International Court of Justice Committee.
The Court of Justice of the European Union (CJEU) has delivered its judgment in Case C-266/16 (The Queen, on the application of Western Sahara Campaign UK v Commissioners for Her Majesty’s Revenue and Customs and Secretary of State for Environment, Food and Rural Affairs). It has decided that if the territory of Western Sahara were to be included within the scope of the EU-Morocco Fisheries Partnership Agreement, that would be contrary to certain rules of general international law that are applicable in relations between the EU and Morocco, inter alia the principle of self-determination. It has also held that, taking account of the fact that the territory of Western Sahara does not form part of the territory of Morocco, the waters adjacent to the territory of Western Sahara are not part of the Moroccan fishing zone referred to in that Agreement. The judgement may be found here. The opinion of advocate general Wathelet is available here.
PCA: Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (update)
In respect of the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), Ukraine has filed its Memorial, 19 February 2018, to the Arbitral Tribunal Constituted under UNCLOS, Annex VII.
The Inter-American Court of Human Rights (I/A Court H.R.) has issued an Advisory Opinion (OC-23/17) in the case “The Environment and Human Rights” on state obligations in relation to the environment, in the context of the protection and guarantee of the rights to life and to personal integrity. This Avisory Opinion was requested by Colombia with respect to the environmental risks caused by the construction, maintenance and expansion of canals for maritime navigation in the Caribbean region. The I/A Court H.R. declared that “the degradation of the environment may cause irreparable damages to human beings, a reason why a sound environment is a fundamental right for the existence of humankind”. The award (in Spanish) may be found here and a summary (also in Spanish) is available here.
The International Court of Justice delivered its Judgment in the joined cases concerning Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua). The first case was presented on 25 February 2014 and concerned the “establishment of single maritime boundaries between the two States in the Caribbean Sea and the Pacific Ocean, respectively, delimiting all the maritime areas appertaining to each of them, in accordance with the applicable rules and principles of international law”. In the Judgment, the Court determined the course of the single maritime boundaries between Costa Rica and Nicaragua in the Caribbean Sea and the Pacific Ocean (see image below). The text of the Judgment may be found here. Costa Rica’s official statement (in Spanish) summing up the consequences of this decision may be found here.
A master of a coastal trading vessel was convicted and fined in Australia’s Cairns Magistrates Court for being in charge of a ship that entered a shipping exclusion area in the Great Barrier Reef Marine Park. The master pleaded guilty to entering an exclusion zone near the Turtle Group of Islands, 28km northwest of Cape Flattery, in November 2015. Under the Marine Park legislation, ships must only travel in designated shipping areas or general use zones to protect the marine environment, and commercial ships are monitored for their compliance. More information about this case may be found here.
Dated the 27 November 2017, the Madurai Bench of the Madras High Court acquitted the 35 person aboard the M/V Seaman Guard Ohio, arrested four years ago for offences under the 1959 Arms Act. Of interest to law of the sea scholars, the case touched upon the drawing of baselines, innocent passage, and the stopping and anchoring rendered necessary by force majeure or distress (UNCLOS, art. 18(2)).
A copy of the judgement is available here.
The provincial court (Audiencia Provincial) of A Coruña, in Spain, has awarded the Spanish state EUR 1.6 billion in damages over the 2002 Prestige oil spill. The court also said the regional government of Galicia must be compensated EUR 1.8 million; France, which was also affected, will be compensated EUR 61 million. Various private parties were awarded compensation as well. The sum will have to be paid by the captain of the ship and the insurance (The London Steamship Owners Mutual Insurance Association) or by the owners of the ship (Mare Shipping Inc.); the award also mentions the obligation of the IOPC Funds to compensate for damages up to the limits established in the applicable treaty. The text of the award, dated 15 November 2017, may be found here (in Spanish).
Update (21 Nov. 2017): The London P&I Club has reacted to the Prestige judgment, assessing the claims and presenting the next steps ahead. The note may be found here.
Through a series of confidential meetings with a Conciliation Commission in The Hague, Timor-Leste and Australia have reached agreement on the complete text of a draft treaty which delimits the maritime boundary between them in the Timor Sea. This draft treaty also addresses the legal status of the Greater Sunrise gas field, the establishment of a Special Regime for Greater Sunrise, a pathway to the development of the resource, and the sharing of the resulting revenue. The Parties will now pursue their domestic approval processes in order to proceed with the signing of the Treaty. More information on this treaty is available here.
The Special Chamber of the International Tribunal for the Law of the Sea, constituted to deal with the Dispute concerning delimitation of the maritime boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), delivered its Judgment. Among other points, it unanimously rejected Ghana’s claim that Côte d’Ivoire is estopped from objecting to the “customary equidistance boundary” and it found that Ghana did not violate the sovereign rights of Côte d’Ivoire. The Award may found here. A reaction by Tullow Oil plc, who explores the Tweneboa Enyenra Ntomme (TEN) oil fields on Ghana’s side of the delimitation line, may be found here.
The conciliation proceedings between the Government of the Democratic Republic of Timor-Leste and the Government of the Commonwealth of Australia, pursuant to article 298 and Annex V of the UN Convention on the Law of the Sea, has reached “agreement on the central elements of a maritime boundary delimitation between them in the Timor Sea”, on the 30 August 2017.
In the arbitration concerning a territorial and maritime dispute between the Republic of Croatia and the Republic of Slovenia, the Tribunal issued a unanimous Final Award on 29 June 2017.
For more information see the Final Award, press release and case page. Croatia has responded it is not bound by the Final Award and shall not implement it, here. Slovenia’s responses may be found here.
On the 12 May 2017, the arbitration tribunal in respect of, Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation), PCA Case No. 2017-06, held its first procedural meeting. On the 18 May 2017 the Rules of Procedure were adopted.