Category Archives: Jurisprudence

PCA: The ‘Enrica Lexie’ Incident (Italy v. India) Award

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.

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PCA: Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. Russia)

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.

For more information see PCA Case No. 2019-28, as well as the related provisional measures case, ITLOS Case No. 26. For previous DeMaribus reports, see here.

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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.

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.

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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.

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

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UN HR Committee: Views Concerning Communication No. 2728/2016 (Ioane Teitiota)

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.

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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.

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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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ICJ: court seised of dispute between Guatemala and Belize

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).

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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.

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

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.

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Netherlands/Russia: Settlement Concerning the Arctic Sunrise

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.

See the Joint Statement here and here.

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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.

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

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ITLOS: Judgment in The M/V “Norstar” Case (Panama v. Italy)

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.

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Arbitral Tribunal and ECtHR: The Kerch Strait Incident November 2018

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.

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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.

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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. 3Procedural 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.

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ITLOS: Public hearing M/V “Norstar” Case

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 (press@itlos.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.

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CJEU: judgment on the “Bosphorus Queen Shipping” case delivered

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.

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ICJ: Revision and Interpretation requests for Pedra Branca/Pulau Batu Puteh case discontinued

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.

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CJEU: EU-Morocco Fisheries Agreement not applicable to Western Sahara adjacent waters

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.

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European Commission’s six charts showing the extent of the fishing zones, used in the Opinion of the Advocate General Wathelet, delivered on 10 January 2018.

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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.

For more information see the Statement of Ukraine’s Foreign Ministry here, and PCA Case No. 2017-06 page here.

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I/A Court H.R.: Advisory Opinion on the Environment and Human Rights

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.

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ICJ: Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua)

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.

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Sketch-map No. 13: Course of the maritime boundary (available here)

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Australia: ship master convicted and fined for entering no-go zone

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.

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India: M/V Seaman Guard Ohio crew and persons aboard aquitted

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.

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Spain: court awards compensation for Prestige damages

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.

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PCA: Timor-Leste and Australia reach agreement on maritime boundary treaty

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.

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ITLOS: Judgment on the Ghana/Côte d’Ivoire Dispute

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.

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The single maritime boundary, taken from the Judgment (p. 150).

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PCA: Timor-Leste and Australia Maritime Boundary Conciliation (update)

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.

For more information see Press Release No. 9, and, generally, PCA Case No. 2016-10. Previous reporting may be found here.

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PCA: Arctic Sunrise Arbitration (Netherlands v. Russia) Award on Compensation

The Tribunal constituted under Annex VII of the UNCLOS in the matter of the Arctic Sunrise Arbitration (Netherlands v. Russia) has rendered its Award on Compensation (see previous posts here and here). In a decision dated 10 July 2017, the Tribunal unanimously determined the quantum of compensation owed by Russia to the Netherlands. The Award may be found here. The press release, which also features the quantum of compensation, may be found here.

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PCA: Arbitration Between the Republic of Croatia and the Republic of Slovenia

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.

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PCA: Coastal State Rights (Ukraine v. the Russian Federation) – Rules of Procedure Adopted

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.

For more information see the press release and Rules of Procedure. The Case View may be found here.

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WTO: US ‘Dolphin Safe’ Labeling – Retaliatory Measures

The World Trade Organization (WTO) arbitrator’s decision, released 25 April 2017, in respect of DS381: US — Tuna II (Mexico), provided “Mexico may request authorization from the [Dispute Settlement Body] DSB to suspend concessions or other obligations […] at a level not exceeding USD 163.23 million per annum”. The dispute originally arises from the 2013 US tuna labeling policy (since modified and further challenged), which was used as the basis to assess the “level of nullification or impairment of benefits accruing to Mexico”.

For further information see here, and the reported decision here.

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ICJ: Somalia v. Kenya Judgement on preliminary objections delivered

Following our previous post, the International Court of Justice (ICJ) has delivered today its Judgment on the preliminary objections raised by Kenya in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya). It finds that it may proceed with the maritime delimitation between Somalia and Kenya in the Indian Ocean. The Judgement can be found here and the summary here.

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PCA: Conciliation between the Democratic Republic of Timor-Leste and the Commonwealth of Australia (update)

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 resulted in measures intended to facilitate the conciliation, reported within a Trilateral Joint Statement issued 9 January 2017. After further exploration of negotiating positions, Timor-Leste  has written to the tribunals to withdraw the two claims it had initiated with Australia under the Timor Sea Treaty, reported within a Trilateral Joint Statement issued 24 January 2017.

See Trilateral Joint Statement – PCA Case Nº 2016-10 (9 January 2017) and Trilateral Joint Statement – PCA Case Nº 2016-10 (24 January 2017).

 

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ITLOS: Tribunal has jurisdiction over The M/V “Norstar” Case (Panama v. Italy)

The Judgment of the Tribunal on the Preliminary Objections raised by Italy on 11 March 2016 in The M/V “Norstar” Case (Panama v. Italy) was delivered today. The Tribunal finds that it has jurisdiction to adjudicate the dispute and decides that Panama’s application is admissible. According to the Application, the dispute concerns the arrest and detention of the M/V “Norstar”, a Panamanian-flagged oil tanker. More details can be found in the Tribunal’s Judgement.

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PCA: Conciliation between the Democratic Republic of Timor-Leste and the Commonwealth of Australia (update)

Following what has been previously reported here and here, the PCA’s Conciliation Commission has issued its Decision on Competence in the compulsory conciliation initiated between Timor-Leste and the Australia under Annex V of the United Nations Convention on the Law of the Sea. In its Decision, the Commission held that it was competent to continue with the conciliation process. These compulsory conciliation proceedings concern the maritime boundary between both States and were initiated by Timor-Leste by way of a Notice addressed to Australia pursuant to Article 298 and Annex V of the Convention. More information about this development can be found in the PCA’s press release.

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Ukraine Initiate Arbitration Against the Russian Federation under UNCLOS

According to the Ministry of Foreign Affairs of Ukraine, “[o]n 14 September 2016, the Ministry of Foreign Affairs of Ukraine officially served the Ministry of Foreign Affairs of the Russian Federation with a notification of arbitration and statement of claim instituting ad hoc arbitral proceedings under Annex VII of UNCLOS”.

For more information, see here.

Russian Foreign Ministry spokeswoman Maria Zakharova has told a news briefing that the Russian Federation had not, by then, received any notification from Kiev on that matter. That statement can be found here.

 

<updated on 3-10-2016 with paragraph on Russian Federation statement (N.F.C.)>

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

The Tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS) in the matter of the Duzgit Integrity Arbitration has just issued an Award in respect of the dispute between the Republic of Malta and the Republic of São Tomé and Príncipe. The dispute concerns the arrest by São Tomé of a Maltese flagged vessel – the Duzgit Integrity – on 15 March 2013 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.

The Tribunal found that it had jurisdiction over the dispute and that, while the initial detention of the vessel fell within the lawful exercise by São Tomé of its law enforcement jurisdiction, the other penalties imposed by São Tomé could not be regarded as proportional to the original offence or the interest of ensuring respect for São Tomé’s sovereignty. Accordingly, the Tribunal held that the cumulative effect of the sanctions imposed by São Tomé was incompatible with Article 49 of the UNCLOS and that Malta was entitled to claim reparation in a further phase of the proceedings.

More information about this case can be found in the PCA’s press release; the Award is available here.

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PCA: Conciliation between The Democratic Republic of Timor-Leste and The Commonwealth of Australia

Following the previously reported initiation of compulsory conciliation by Timor-Leste in respect of a dispute with Australia, readers may follow the inter-state conciliation on the Permanent Court of Arbitration website, PCA Case No. 2016-10.

For more information, press releases and transcripts see here.

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PCA: Philippines v. China (final Award)

The PCA has issued today a unanimous Award in the arbitration instituted by the Republic of the Philippines against the People’s Republic of China. This arbitration concerned the role of historic rights and the source of maritime entitlements in the South China Sea, the status of certain maritime features and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China that were alleged by the Philippines to violate the UNCLOS. The full text of the Award can be downloaded here. A summary has been provided by the PCA and can be downloaded here.

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PCA: Philippines v. China (date for issuance of final Award)

The Permanent Court of Arbitration has today informed the Parties that the Tribunal will issue its Award in the arbitration initiated by the Republic of the Philippines against the People’s Republic of China under Annex VII to the United Nations Convention on the Law of the Sea. The Tribunal will issue its Award on Tuesday, 12 July 2016 at approximately 11 A.M. CEST, The Hague. More information can be found in this press release.

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PCA: the “Enrica Lexie” Incident (Italy v. India) Arbitral Tribunal Order issued

On 29 April 2016, the Arbitral Tribunal in the arbitration concerning the “Enrica Lexie” incident (Italy v. India) adopted its Order in respect of a request by Italy for the prescription of provisional measures. In the operative part of the Order, the Arbitral Tribunal unanimously prescribed the following provisional measures:

a) Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant Girone so as to give effect to the concept of considerations of humanity, so that Sergeant Girone, while remaining under the authority of the Supreme Court of India, may return to Italy during the present Annex VII arbitration.
b) The Arbitral Tribunal confirms Italy’s obligation to return Sergeant Girone to India in case the Arbitral Tribunal finds that India has jurisdiction over him in respect of the “Enrica Lexie” incident.
c) The Arbitral Tribunal decides that Italy and India each shall report to the Arbitral Tribunal on compliance with these provisional measures, and authorizes the President to seek information from the Parties if no such report is submitted within three months from the date of this Order and thereafter as he may consider appropriate.

The full text of the Order is available on the Case Repository of the PCA.

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ICJ: Judgement delivered on Nicaragua v. Colombia

The International Court of Justice delivered its Judgment on the preliminary objections raised by Colombia in the case concerning Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia). The Court found that it has jurisdiction, on the basis of Article XXXI of the Pact of Bogotá, to entertain the First Request put forward by Nicaragua in its Application, in which it requests the Court to determine “the precise course of the maritime boundary between Nicaragua and Colombia in the areas of the continental shelf which appertain to each of them beyond the boundaries determined by the Court in its Judgment of 19 November 2012”, and that that Request is admissible. The award of the court can be found here.

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ITLOS: Panama institutes proceedings against Italy

Panama filed an application with the International Tribunal for the Law of the Sea in a dispute with Italy regarding the arrest and detention of the MV Norstar, a Panamanian-flagged vessel. More details on this case is given in the Tribunal’s press release.

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