De Maribus

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

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

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

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

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

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

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

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

Concerning admissibility:

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

Concerning the merits:

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

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

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