A Timeline of Events Leading up to Timor-Leste’s ICJ Claim Against Australia

Last week, the International Court of Justice heard three days of argument concerning Timor-Leste’s pending request for provisional measures in Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia). The case was brought by Timor-Leste following Australia’s execution of a search warrant at the office of Timor-Leste’s Canberra-based attorney. Australia claimed that the warrant was appropriately issued for national security purposes, and used it to obtain extensive electronic and paper files concerning Timor-Leste’s pending arbitration against Australia before a Hague tribunal. In that arbitration, Timor-Leste is seeking to overturn a 2007 treaty between Australia and Timor-Leste, as a result of Australia’s espionage on Timor-Leste’s internal communications during the course of negotiations.

Australia claims that it was justified in seizing Timor-Leste’s legal files because Timor-Leste’s evidence of Australia’s espionage was provided by a retired Australian spy. That spy, dubbed “Officer X,” informed Timor-Leste of the 2004 bugging operation as a result of his belief that the surveillance had been conducted for improper commercial purposes, rather than national security interests.

It is a complicated and messy situation, both legally and politically, but the significance of Australia’s seizure of Timor-Leste’s legal files, as well as Australia’s prior espionage against Timor-Leste’s government, can only be understood in the context of the history of the past treaty negotiations between the two countries. To give some background for future posts concerning the legal claims being raised by Timor-Leste and Australia, provided here is a timeline of events leading up to the recent case before the ICJ.

The International Legal Context

The dispute ultimately concerns Australia and Timor-Leste’s competing claims to an expansive section of the Timor Sea between Australia and Timor-Leste. If you drew a line in the middle of the ocean that was equidistant from both Timor-Leste and Australia’s shores, the maritime area stretches north from that median line to within approximately 40 nautical miles of Timor-Leste’s shore. There is a lot of oil and gas in this area of the ocean, and both Australia and Timor-Leste claims to have the sovereign right to exploit those resources.

Australia claims that this area belong to Australia on the basis of historical precedence and on the basis of somewhat dubious allegations concerning the underwater geographical features of the Timor Sea. Timor-Leste claims that it belongs to Timor-Leste on the basis of the UN Convention on the Law of the Sea and the widely prevalent state practice of delimiting maritime boundaries of states with opposite coasts along a median line. Timor-Leste’s claims are generally considered more robust than Australia’s.

Although the strength of Australia’s legal claims to the territory may be questionable, it turns out that inconvenient little problem becomes entirely irrelevant if a legal challenge is never actually brought. Australia almost certainly recognizes that it will not be able to prevail in acquiring the territory for itself, and so rather than pursuing its own claims, it has instead strategically eliminated any opportunity for a legal challenge to be brought by Timor-Leste.

Two months before Timor-Leste became an independent nation that was capable of pursuing a claim before an international adjudicative body, Australia withdrew any dispute over maritime boundaries from the jurisdiction of the ICJ and ITLOS, preventing Timor-Leste from ever having had an opportunity to establish its legal claim to the Timor Sea. In the absence of a decision from the ICJ or ITLOS recognizing the likely legal reality of Timor-Leste’s claims to the disputed oil and gas fields, the territory will remain perpetually “disputed.” So long as there is legal limbo over the territory, Timor-Leste is unable to obtain the foreign investment necessary to develop the resources. Australia, in turn, can continue to demand that in exchange for allowing foreign investment into the maritime areas, Australia gets a substantial portion of any resulting revenues.

The Disputed Territories

Image from dollarsandsense.org, “Minding The Timor Gap: Billions of dollars in oil and gas revenues are at stake as Australia continues to bully East Timor out of its undersea energy resources.”

Joint Petroleum Development Area (“JPDA”): Area marked in yellow on map. Revenues derived from oil and gas fields in this area are split 90/10 between Timor-Leste and Australia, pursuant to 2002 treaty. Although the JPDA is the largest delineated area within the disputed maritime areas, its gas and oil fields are not as valuable as that of the non-JPDA areas.

Laminaria-Corallina Fields: Located in the western (left) horn of the light blue area. (Light blue area marks maritime territory that is disputed by Australia and Timor-Leste.) These fields have never been a part of any treaty between Timor-Leste and Australia, and Australia has at all times obtained 100% of government proceeds from them. The Laminaria-Corallina fields have now been 95% depleted of their resources, and, as a result, no longer plays a significant role in the dispute between Australia and Timor-Leste.

Greater Sunrise Fields: Located in the eastern (right) horn of the light blue area. (Light blue area marks maritime territory that is disputed by Australia and Timor-Leste.) The Greater Sunrise fields are estimate to contain twice as much LNG as the JPDA fields. A small portion of the Greater Sunrise fields (20%) is located in the JPDA, but most of the fields’ area (80%) lays outside of it, in the disputed territory over which both Australia and Timor-Leste. Under the 2002 treaty between Timor-Leste and Australia, Timor-Leste received 90% of the revenue from the sliver of the Greater Sunrise fields in the JPDA, and 0% of the revenue from the Greater Sunrise fields outside of it. (Or, 18% of the revenue from the Greater Sunrise fields as a whole.) Under the 2007 treaty, Timor-Leste and Australia each receive 50% of future revenues from the entirety of the Greater Sunrise Fields. As of 2014, the Greater Sunrise fields have yet to be commercially developed.

Timeline of Events

August 1974: Woodside Australian Energy (later Woodside Petroleum), an Australian energy company, discovers gas in the Greater Sunrise fields.

1975: Indonesia invades and annexes East Timor, making further development of the Timor Sea resources impossible.

1989 – 1991: Indonesia and Australia sign and ratify the Timor Gap Treaty (“TGT”), opening the possibility once again of exploration and development of the Timor Sea gas and oil fields. The Timor Gap Treaty does not establish maritime boundaries between the countries but instead equally splits proceeds derived from development of the oil and gas fields in a delineated portion of the Timor Sea between the countries, with each country receiving 50% of the total tax revenues. Many observers believe that this 50%/50% division is not supported by international law, but was instead agreed to by Indonesia as a concession in exchange for Australia’s recognition of its annexation of Timor-Leste.

1995: Australia, pursuant to the Petroleum (Submerged Lands) Act of 1967, its sovereign claim to the resources of its continental shelf, and the TGT, issues licenses to a joint venture between Woodside and Shell for exploration and drilling of the portions of the Greater Sunrise fields that lie outside of what will later become the JPDA. The largest portion is within permit area NT/RL2, with an additional small portion in NT/P55.

1997: The Woodside and Shell JV announce proposals to set up a liquefied natural gas (LNG) plant in Darwin, Northern Territory, with production scheduled to commence in 2005.

August 1999: East Timor votes for independence, potentially throwing long-term development plans in the Timor Sea into doubt, due to uncertainty over future treaties and boundary determinations.

1999: Three multinational corporations, headed by Woodside, begin oil production in the Laminaria-Corallina fields. Between 1999 and 2012, approximately 201 million barrels of oil are produced, with resulting tax revenues to Australia of approximately $2 billion USD.

February 2001: Woodside, Shell, and Phillips Petroleum Company sign a cooperative agreement, establishing a joint venture for development of both the Bayu-Undan fields (within the JPDA) and the Greater Sunrise fields (in both JPDA and outside of it). The consortium companies base their agreement on a belief that the majority of the Greater Sunrise fields are “located in Australian waters.”

July 2001: Timor-Leste, in advance of its independence from Indonesia, had made it clear that Timor-Leste would not be bound by treaties previously entered into by Indonesia, including the Timor Gap Treaty, which concerned the soon-to-be new nation’s claimed territories. As a result of historical factors, both Australia and East Territory lay claim to large, resource-rich maritime area in the Timor Sea, and the nations are unable to reach an agreement as to their respective maritime territorial boundaries. Australia and Timor-Leste instead reach a Memorandum of Understanding of Timor Sea Arrangement (MOU) (which will later be adapted into the Timor Sea Treaty) under which proceeds from development in the JPDA, will no longer be split 50/50, but will instead be split 90/10, with 90% going to Timor and 10% going to Australia. This agreement does not, however, address the proceeds from resources obtained in disputed territories outside of the JPDA area, and Australia continues to receive 100% of government revenues from the resources in these areas. The MOU also specifies that the Greater Sunrise fields are to be divided with 80% going to Australia and 20% going to East Timor, based upon Australia’s claim to the waters outside the JPDA.

The MOU also specifically preserves the Woodside/Shell/Phillips joint venture’s contracts to the portion of the Greater Sunrise fields located in the JPDA.

Early March 2002: Oceanic Exploration Company, an oil and gas exploration company interested in developing the Timor Sea oil and gas fields, “offer[s] to finance a claim by East Timor in the International Court of Justice to support East Timor’s expanded seabed boundary claims in its dispute with Australia and to establish expanded boundaries for East Timor. Such expanded seabed boundaries, under applicable international law, would have tripled East Timor’s seabed hydrocarbon reserves.”

March 21 and 25, 2002: Australia files reservations with both the International Court of Justice (ICJ) and International Tribunal for the Law of the Sea (ITLOS), revoking Australia’s consent to jurisdiction before those tribunals for any disputes involving maritime boundaries. The apparent purpose is to prevent any claims arising from the Timor Sea dispute from being heard by either the ICJ or ITLOS, in anticipation of Timor-Leste’s rapidly approaching independence.

May 20, 2002: Timor-Leste gains independence from Indonesia. On the same day, Australia and Timor-Leste enter into the Timor Sea Treaty (“TST”) as an interim agreement to replace the Timor Gap Treaty (which went out of force with Timor-Leste’s independence). The TST continues the 90/10 split agreed to in the 2001 provisional agreement, and provides for a stopgap treaty concerning the division of the resources in the Timor Sea.

2002 – 2004: Timor-Leste and Australia engage in negotiations over the disputed territories outside of the JDPA area, but negotiations are unsuccessful. This is due in large part because Timor-Leste wants to establish its maritime territorial boundaries over this area, but under the provisions for maritime delineation in UNCLOS, Australia’s claims to the resources in the Timor Sea could be largely be extinguished. The two major oil and gas fields outside the JDPA are each subject to different pressures:

  • Laminaria-Corallina Fields: Australia is at this time obtaining revenues from the Laminaria-Corallina fields in the amount of approximately $1 million per a day, and every day that passed without a treaty meant more revenues that Australia can claim entirely for itself. In contrast, every day that passed for Timor-Leste was another day in which it got no share of the revenues from the rapidly depleting fields, and would forever lose that source of revenue.
  • Greater Sunrise Fields: In 2003, a multinational consortium, in which Woodside was once again the majority partner, obtained a license to development the resources contained in the Greater Sunrise Field. Due to the legal uncertainty caused by Timor-Leste and Australia’s disputing claims to the territory in which it was located, however, Woodside refused to fully invest in the fields until a firm agreement was established. For Australia, developing the Greater Sunrise fields would have been a good revenue source, but not if it came at the cost of its claims to the rest of the Timor Sea – which made Australia reluctant to open negotiations at all. For Timor-Leste, the revenues from the Greater Sunrise fields were urgently needed, but it lacked the resources to develop these fields on its own. Unless Australia would agree to resolve the territorial dispute, Timor-Leste could not obtain the outside investment required to obtain the resources.

As a result of the investors’ demands and Timor-Leste’s inability to proceed alone, Australia could effectively hold the Timor Sea territories hostage. By preventing any adjudication over Timor-Leste’s claims, Australia could prevent Timor-Leste from benefiting from the resources it was likely entitled to under international law, as well as continue to receive all revenues from the existing gas and oil production. Although Timor-Leste wanted to develop the remaining gas and oil fields (as well as lay claim to the existing revenue sources that Australia continued to receive), Timor-Leste lacked the infrastructure or financing to do so without foreign investment – and foreign investors refused to invest while Timor-Leste and Australia had disputing claims to the territory.

Australia could afford to be patient. As long as no action was taken, Australia would to continue obtaining 100% of the revenue from the existing fields, which had been developed prior to Timor-Leste’s independence and therefore before any legal dispute arose. Australia had no urgent need for the potential revenue that could be obtained from the other oil fields, especially when it was unclear that Australia would be entitled to any of that revenue at all – and when Timor-Leste was so desperate for that revenue that Australia could simply wait Timor-Leste out, and force it to voluntarily agree to give up is territorial rights in exchange for Australia allowing development to occur at all.

Consequently, during the 2002 to 2004 time period, negotiations are slow. Australia announces that it would wait 20 years to resolve the question if it had to, while Timor-Leste continued to petition Australia for a final agreement as to the boundaries. But this stalemate is eventually broken, thanks to the third party involved in the Timor-Leste/Australia treaty negotiations: the Woodside-led consortium, which was tired of delays, and waiting impatiently to develop the Greater Sunrise fields.

In 2003, Australia and Timor-Leste sign the Sunrise International Unitization Agreement (Sunrise IUA), but Timor-Leste’s parliament, believing it to be a bad deal, refuses to ratify it.

July 29, 2004: Woodside’s executive director personally flies to Timor-Leste to inform Timor-Leste’s prime minister that, if a treaty could not be reached by the end of the year, Woodside would terminate its operations in the Greater Sunrise fields and pull out its investment all together. At the same time, Woodside informed Australia of its strong interest in a quick resolution to the dispute over the Greater Sunrise fields. Following this political pressure, Australia and Timor-Leste begin considering a ‘creative solution’ to the problem, under which the question of territorial boundaries would be pushed off, and an agreement concerning resources would be reached.

September 20, 2004: Timor-Leste and Australia meet in Dili, Timor-Leste’s capital, to start a new round of negotiations concerning a treaty for the development of the Greater Sunrise fields.

October 2004: During the course of negotiations in Dili,

  • Australian Foreign Minister Alexander Downer allegedly orders the eavesdropping of the Timor-Leste’s parliament’s discussions concerning treaty negotiations. The listening devices are to be planted by the Australian Secret Intelligence Service (“ASIS”), then headed by David Irvine.
  • ASIS agents, posing as contractors for an Australian construction company, install recording devices in the offices of Timor-Leste’s cabinet and prime minister, allowing Australia to eavesdrop on Timor-Leste’s internal discussions concerning treaty negotiations. Australia is likely able to obtain detailed information on Timor-Leste’s planned negotiation strategies and the vulnerabilities it would face if talks fell through. Possible (and very hypothetical) scenarios that could provide particularly strong support for Timor-Leste’s current claim to overturn CMATS might include Australia learning through surveillance (1) that Timor-Leste did not believe Woodside’s bluff that it would pull out, but that if Woodside went through with it, it would have to capitulate; (2) that East Timor had other possible avenues to development it could use as an alternative, which Australia took steps to remove once it learned of it; or (3) information concerning the pending bribery claims in a U.S. federal court, accusing ConocoPhillips (the company with the second largest share, after Woodside, in the Greater Sunrise Joint Venture) of bribing Timor-Leste’s Prime Minister to obtain development contracts for oil fields located in the JPDA.
  • The negotiations begin to break down when Australia makes it clear it will not agree to any discussions about the disputed maritime boundaries, and that the only concession Australia was willing to negotiate about was a monetary one. Australia would provide financial compensation to Timor-Leste, and would allow Woodside to proceed with development of the Greater Sunrise fields, if Timor-Leste would agree to forfeit any ability to attempt to establish the maritime boundary through any other mechanism.  Timor-Leste was willing to agree to defer on claims to its territorial boundaries, but wanted to participate in the development of the gas and oil fields – a request Australia refused to consider. Australia would agree to give Timor-Leste a portion of the revenues as a pay out, but it would not have any role in the actual development and production of the gas and oil extracted.

November 17, 2004: Woodside’s deadline passes, with Australia and Timor-Leste having failed to come to an agreement to a permanent treaty. Woodside pulls out of its operations in the Greater Sunrise fields, stating that the uncertainty caused by the lack of an established legal framework for the area makes long-term investment untenable.

March-April 2005: Timor-Leste and Australia resume negotiations, this time in Canberra.

April 29, 2005: After three days of talks in Dili, Australia and Timor-Leste reach a draft agreement on development of the Greater Sunrise fields, the terms of which are finalized in the Treaty on Certain Maritime Arrangements in the Timor Sea (“CMATS”). The CMATS is a great deal for Australia; it makes no concessions to Timor-Leste beyond a strictly monetary 50/50 division of revenues between Australia and Timor-Leste from the Greater Sunrise fields.

It is not a particularly good deal for Timor-Leste. The deal concerns only the Greater Sunrise fields, and not any of the other maritime areas which are in dispute. All areas not within the Greater Sunrise fields or the JDPA remain unaddressed. Financially, Timor-Leste now secures a right to 50% of the Greater Sunrise revenues, when previously Australia had only agreed not to contest Timor-Leste’s right to 18%. But obtaining 50% of revenues is not necessarily an achievement, when there is a good chance a court would have awarded you 100%.

And, perhaps worst of all, CMATS contains a severe ‘moratorium,’ pursuant to which Timor-Leste effectively agrees not to try and establish its territorial boundaries. Article 4 provides that:

1. Neither Australia nor Timor-Leste shall assert, pursue or further by any means in relation to the other Party its claims to sovereign rights and jurisdiction and maritime boundaries for the period of this Treaty.

2. Paragraph 1 of this Article does not prevent a Party from continuing activities (including the regulation and authorisation of existing and new activities) in areas in which its domestic legislation on 19 May 2002 authorised the granting of permission for conducting activities in relation to petroleum or other resources of the seabed and subsoil.

3. Notwithstanding paragraph 2 of this Article, the JPDA will continue to be governed by the terms of the Timor Sea Treaty and associated instruments.

4. Notwithstanding any other bilateral or multilateral agreement binding on the Parties, or any declaration made by either Party pursuant to any such agreement, neither Party shall commence or pursue any proceedings against the other Party before any court, tribunal or other dispute settlement mechanism that would raise or result in, either directly or indirectly, issues or findings of relevance to maritime boundaries or delimitation in the Timor Sea.

5. Any court, tribunal or other dispute settlement body hearing proceedings involving the Parties shall not consider, make comment on, nor make findings that would raise or result in, either directly or indirectly, issues or findings of relevance to maritime boundaries or delimitation in the Timor Sea. Any such comment or finding shall be of no effect, and shall not be relied upon, or cited, by the Parties at any time.

6. Neither Party shall raise or pursue in any international organisation matters that are, directly or indirectly, relevant to maritime boundaries or delimitation in the Timor Sea.

7. The Parties shall not be under an obligation to negotiate permanent maritime boundaries for the period of this Treaty.

Essentially, through CMATS, Australia has solidified its ability to hold the disputed territory hostage for 50 years – because under CMATS, Timor-Leste cannot pursue any legal claim which could, even “indirectly,” legally establish its claims to the Timor Sea. Moreover, if a court does go ahead and make a ruling on Timor-Leste’s territorial boundaries anyway, Timor-Leste is prohibited from even mentioning the court ruling. And by the time those 50 years expire, there won’t be much oil left for the parties to argue over.

Australia, for its part, did very well in obtaining such an expansive prohibition. The fact that Australia’s claims in the Timor Sea are likely wrongful and in violation of international law was effectively rendered irrelevant as a result of the treaty, and Australia’s ability to develop any areas outside of the JDPA or Greater Sunrise fields was left unaffected.

January 12, 2006: Australia and Timor formally sign CMATS, which comes into force in 2007.

January 2008: Alexander Downer retires from politics and establishes a boutique lobbying firm, Bespoke Approach. Woodside becomes a client of Bespoke Approach, and through his lobbying firm, Downer ends up on the payroll of Woodside.

2008 – 2012: Development on the Greater Sunrise fields does not proceed, in large part due to disputes between Woodside, Australia, and Timor-Leste as to how and where the extracted oil will be diverted for processing. At an unknown date in this time period, a retired ASIS Agent, dubbed “Officer X,” who had been in charge of carrying out the 2004 surveillance operation against the Timor-Leste cabinet, contacts Timor-Leste’s government to inform them of the surveillance. Officer X  stated that he “decided to blow the whistle when he learned that in his life after politics, Alexander Downer had become an advisor to Woodside Petroleum through his lobbying firm, Bespoke Approach.” He provides Timor-Leste with an affidavit “refer[ring] to the 2004 bugging operation as ‘immoral’ and ‘wrong’ because it served not the national interest, but the commercial interest of big oil and gas.”

December 2012: Timor-Leste sends a diplomatic note to then-PM Julia Gillard, informing her of the espionage that was conducted during the 2004 negotiations, requesting that Australia reopen discussions with Timor-Leste about CMATS. Australia ignores the request.

April 2013: Timor-Leste initiates arbitration proceedings against Australia under the 2002 TST, seeking a declaration that the CMATS agreement is voided due to Australia’s failure to negotiate in good faith by conducting espionage on Timor-Leste’s internal treaty discussions.

May 3, 2013: Australian Minister for Foreign Affairs Bob Carr announces in a press release that Timor-Leste has initiated arbitration concerning the validity of CMATS, and that “Timor-Leste argues that CMATS is invalid because it alleges Australia did not conduct the CMATS negotiations in 2004 in good faith by engaging in espionage.”

Late November 2013: As part of pre-hearing arbitration procedures, Timor-Leste and Australia meet to discuss preliminary procedural issues and to exchange information. Timor-Leste provides Australia with a list of witnesses that it intends to call at the upcoming arbitration hearing, including the name of Officer X, as well as tree other “whistleblowers” who are prepared to testify to Australia’s espionage.

December 2, 2013: David Irvine, the former head of ASIS and the current Director-General of the Australian Security Intelligence Organisation (“ASIO”), Australia’s internal intelligence agency, requests the issuance of a warrant to search to conduct a search of Timor-Leste’s Australian attorney, whose office is located in Canberra. The Australian Attorney General, George Brandis, approves the request, and a warrant is issued under  section 25  of  the  ASIO Act,  “for  the  purpose  of  collecting  intelligence  on  a  matter  affecting  the security of Australia, concerning possible espionage.”

December 3, 2013: The ASIO carries out the search warrant, seizing materials and documents from the office of Timor-Leste’s attorney. Although Timor-Leste’s attorney has already left for the Hague in preparation for the upcoming arbitration hearing, “[o]ne of Mr. Collaery’s legal assistants, Ms Preston, was alone in the office at the time. The officers presented the warrant authorizing the entry and seizure of documents, but never told Ms Preston what exactly they were seeking, or why. In the pressure of the moment Ms Preston sought to read the warrant but felt so intimidated by the presence of over a dozen ASIO personnel that she could not finish it. Moreover, many of the words in it were blacked out. Her request for a copy was refused on the grounds that it was a matter of national security.”

Additionally, ASIO officers also go to the house of Officer X, where he is interrogated for several hours, and has his passport cancelled. All of this occurs a mere two days before a scheduled hearing before the Hague tribunal, on December 5, 2013, at which the parties were to determine how the whistleblower witnesses would be handled. Australia has denied that preventing Officer X’s appearance at the Hague played a role in the timing of its actions, but has conceded it does intend to prevent his testimony from being introduced.

December 18, 2013: Timor-Leste institutes proceedings against Australia before the ICJ, in Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia). Timor-Leste also files a request for a provisional (and expedited) order from the Court instructing Australia to return the seized materials while a final decision on the merits is pending.

-Susan

Google Earth Collection of the Disputed Territorial Claims in the South China Sea, East China Sea, and Sea of Japan-

Trying to keep track of all the contested territorial claims in the South China Sea and East China Sea can be difficult. There are hundreds of islands, reefs, rocks, and submerged shoals that are in dispute, and the relevant coastal states don’t always agree on which of those categories is applicable to each specific maritime feature. To make matters worse, most of those features also have at least three different common names in use, which reflects the myriad of competing territorial claims throughout the region.

So in order to have an easy reference source regarding the locations and identities of the disputes rocks, reefs, and islands, I’ve created a Google Earth collection with placemarkers for China’s disputed maritime claims.

South China Sea Dispute

Right now, this Google Earth file provides indicators for (1) the geographical coordinates declared by China as its baselines for measuring the breadth of its territorial sea,  pursuant to Article 16 of UNCLOS, for (i) China’s mainland territories; (ii) the territorial sea and EEZ divisions agreed upon in the 2000 treaty between China and Vietnnam; (iii) China’s claimed territorial baselines in the Senkaku Islands; and (iv) China’s claimed territorial baselines in the Paracel Islands; (2) the submerged features, rocks, and islands of the Paracel Islands which form the basis of China’s claimed territorial sea baseline; (3) the submerged features and rocks in the Spratly Islands and in the Scarborough Shoal that are identified as areas of dispute in the Philippines’ Annex VII arbitration against China; and (4) China’s Nine-Dashed Line Map, outlining China’s nonspecific territorial claims in the South China Sea.

Using Google Earth to view the disputed territories is also helpful in that it provides access to a large collection of user-uploaded photos of the disputed maritime features — which is handy for getting a better idea of just how rock-like many of these “islands” are, or for what a “low-tide elevation” really looks like. It also allows you to play around with the various distances involved, which puts into perspective the tenuousness of some of the territorial sea and EEZ claims that are being asserted.

-Susan

Annex VII Arbitration, Annex V Mandatory Conciliation, and China’s Nine-Dashed Line

There are nine states that have coastline along the South China Sea: the People’s Republic of China, the Philippines, Malaysia, Brunei, Indonesia, Singapore, Thailand, Cambodia, and Vietnam. There have been ongoing disputes for decades between those nations concerning their competing claims of sovereignty and jurisdiction over the South China Sea, as well as the islands and reef features it contains, and most of those disputes have involved China.

The reason for China’s leading role in these disputes can be fairly understood from a review of China’s infamous Nine-Dotted Line. This map, a version of which was submitted by China to the UN in 2009, is China’s depiction of what a fair and equitable division of jurisdiction over the South China Sea should look like:

China alleges that the extent of its claims of sovereignty over the South China Sea are based solely on its historically established territories and its lawful jurisdictional entitlements under UNCLOS and international law. The fact that these historical and legal claims provide China with self-proclaimed sovereignty over 80% of the South China Sea is, one assumes, merely a coincidence.

China’s coastal neighbors have, understandably, objected to China’s overreaching in its territorial claims under the Nine-Dotted Line, and it has been a frequent point of diplomatic contention in recent decades. Previously, however, none of the disputes concerning the South China Sea territorial claims have been successfully adjudicated by an international tribunal.

That streak may now be coming to an end. On January 22, 2013, the Philippines — perhaps finally realizing it has little to lose from taking legal action over China’s encroachments on their territories, and potentially a lot of diplomatic street cred to be gained — the Philippines filed a Statement of Claim instituting arbitration against China under Annex VII of UNCLOS,

“with respect to the dispute with China over the maritime jurisdiction of the Philippines in the West Philippine Sea, the Government of the Philippines has the honor to submit the attached Notification under Article 287 and Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the Statement of Claim on which the Notification is based, in order to initiate arbitral proceedings to clearly establish the sovereign rights and jurisdiction of the Philippines over its maritime entitlements in the West Philippine Sea.”

China was less than impressed with the Philippines’ notice of arbitration, and promptly returned the claim to the Philippines, stating that it declined to participate in the arbitration. In refusing to participate in the mandatory and binding arbitration procedure, China is taking a gamble. Not participating in the arbitration will greatly increase the odds of the arbitration tribunal rendering an unfavorable result. China is still hoping, however, that its usual rhetoric will prevail, and that the Philippines will stand down from the legal proceedings:

“The Chinese side hopes that the Philippine side keeps its word, not to take any action that magnifies and complicates the issue, responds positively to China’s proposals on establishing a bilateral regular consultation mechanism on maritime issues, resumes the operation of the Confidence Building Measures Mechanism (CBMs) as established between the two countries, and reverts to the right track of settling the disputes through bilateral negotiations.”

The reason for China’s refusal to play ball is obvious: China’s claims are devoid of any support under any customary international law or treaty. The longer China can go without having the unlawfulness of its claims officially decreed, the better China’s chances are at having its non-lawful claims take on the color of lawful action by dint of longstanding practice. As such, China has zero interest in allowing any tribunal, binding or unbinding, to render a legal decision concerning the validity of its maritime territorial claims.

China can, and has, found a way to somewhat legally assert its indefensible claims without facing legal challenge, through bullying any states that object into agreeing to submit the dispute to diplomatic negotiations rather than legal recourses. Article 280 of UNCLOS provides that “Nothing in this Part impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice.” As long as China can convince (or coerce) its maritime neighbors to agree to never-ending rounds of “bilateral negotiations” and “consensus building,” then the actual lawfulness of its claims will never be tested.

But in bilateral negotiations (conveniently, China always insists on bilateral, not multilateral), the strength of each party’s bargaining position is dependent on the weight of its political resources, not the weight of its legal arguments. This is precisely what the territorial divisions and corresponding dispute resolution procedures of UNCLOS were designed to avoid. UNCLOS’s provisions reflect a core goal of the parties in entering into the Convention, which was divorcing maritime sovereignty from maritime strength. Under UNCLOS, all coastal states, no matter the size of their GDP or their military, are, theoretically, entitled to the same breadth of their territorial seas and Exclusive Economic Zones (EEZ). UNCLOS was designed this way, in part, to prevent larger and more developed states from going on a maritime territory claiming rampage, done solely for the purpose of establishing a historical claim to occupation and use, with the goal of fully exploiting these territories at a future date. In short, there is no “use it or lose it” clause, under UNCLOS — developing states are not at a risk of losing the natural resources in their EEZ through inaction, and so do not need to divert resources towards shoring up their claims of sovereignty. The resources are theirs, and will be their waiting once a state’s economy develops to the point where it is able to harness and use those resources for itself.

China, in contrast, has subscribed to the exact opposite philosophy when it comes to maritime claims. China’s actions are consistent with its belief that, by virtue of its size and military power, it can claim any part of the ocean that is not actually within another state’s territorial seas. China often uses the language of law in asserting its maritime claims, but China’s actions indicate that it believes its claims are, in actuality, supported by the force of its military and not by the force of law.

In filing its Statement of Claim, the Philippines is now hoping to force China into either conforming its actions with its legal claims, or else be plainly shown to be a hypocrite who is not acting within the bounds of international law. It is not as if that would come as a surprise to anyone, but in terms of drumming up global support and united opposition against China’s maritime aggression, it could go a long way in the Philippines’ favor.

But whether or not the Philippines can lawfully bring its claims before an international tribunal is not a straightforward matter. True, Part XC of UNCLOS does provide for mandatory dispute resolution procedures, either through ITLOS, Annex VII arbitrations, the ICJ, or some other adjudicative body. But under Article 298, of UNCLOS, a limited exception is provided, and “a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more… categories of disputes.” China did in fact file a written declaration, dated August 25, 2006, which invoked the opt-out clause of Article 298, providing that “[t]he Government of the People’s Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.”

Of the three categories of disputes in Article 298, it is the category described at 298(1)(a)(i) that is likely most relevant here: “disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations[.]” Although the Philippines attempted to artfully draft its Statement of Claim to avoid implicating any of the disputes within Article 298’s categories, it is likely that at least some — though not all — of the Philippines’ claims would in fact encroach on the interpretation or application of articles 15, 74, and 83.

But this doesn’t mean the Philippines cannot have all of its claims decided by an international tribunal. China’s declaration under Article 298, regarding Section 2 of Part XV, does not affect China’s obligations under Section 1 of Part XV. This means China is still bound by Article 284’s conciliation requirements:

“A State Party which is a party to a dispute concerning the interpretation or application of this Convention may invite the other party or parties to submit the dispute to conciliation in accordance with the procedure under Annex V, section 1, or another conciliation procedure …

If the invitation is not accepted or the parties do not agree upon the procedure, the conciliation proceedings shall be deemed to be terminated.”

So why didn’t the Philippines opt for mandatory conciliation? Likely because conciliation, even when mandatory, is non-binding on the parties, and the Philippines would prefer to get a judicial order in its favor. On the other hand, it is possible conciliation was already tried, and failed. In the Philippines’ Statement of Claim instituting an Annex VII ad hoc arbitration against China, the Philippines stated:

“Most recently, during a series of meetings in Manila in April 2012, the Parties once again exchanged views on these matters without arriving at a negotiated solution. As a result of the failure of negotiations, the Philippines later that month sent China a diplomatic note in which it invited China to agree to bring the dispute before an appropriate adjudicatory body. China declined the invitation.” (emphasis added)

I have not been able to locate a copy of the note, and cannot determine what the “appropriate adjudicatory body” was. It is possible that the Philippines did invite China to conciliation — but presumably, if it had, the Philippines would have specifically noted it. If the Philippines has invited China to conciliation, and China has refused the request, this would strengthen the Philippines’ claims considerably. Because UNCLOS provides for mandatory conciliation for disputes that fall within Article 298(1),

a State may, without prejudice to the obligations arising under section 1, declare … that it does not accept any … of the procedures provided for in section 2… provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2[.]

So even if China has exempted itself from the (immediate) force of Part XV, Section 2, China is still obligated to engage in mandatory conciliation under Annex 5, Article 11:

Any party to a dispute which, in accordance with Part XV, section 3, may be submitted to conciliation under this section, may institute the proceedings by written notification addressed to the other party or parties to the dispute.

Any party to the dispute, notified under paragraph 1, shall be obliged to submit to such proceedings.

If that is what happened here — if the Philippines did give written notification to China that it wanted the parties to engage in conciliation, and China declined — then the Philippines may have some argument that it was entitled to immediately proceed with an Annex VII arbitration, and that China cannot now validly object to the arbitration tribunal’s jurisdiction. This isn’t a watertight argument — the Philippines could have proceeded with mandatory conciliation, per Art. 12 of Annex V, even if China refused to participate — but the “provided that” language of Article 298 could be read to imply that Article 298’s opt-out procedures only apply on the condition that the party accepts submission of those disputes to mandatory conciliation. If China declined to comply with the condition precedent of Article 298’s opt-out provision, then perhaps the Philippines was entitled to proceed under Section 2 of Part XV.

Additionally, the Philippines does have a viable argument that its dispute with China (or at least part of it) is not within the class of disputes that is covered by China’s Art. 298 declaration. Mandatory conciliation might not have been required in this case at all. However, given the ambiguous and unsettled question of whether an Annex VII arbitration could exercise jurisdiction over the dispute submitted by the Philippines, it should be no surprise that the Philippines selected Rüdiger Wolfrum, the former president of ITLOS, as its designated arbitrator. Judge Wolfrum has already gone on the record stating that he believes UNCLOS tribunals have the jurisdiction to hear maritime delimitation disputes that arise in the context of UNCLOS provisions that do not directly concern delimitation, but may indirectly affect it:

there can be no doubt that disputes concerning the interpretation or application of other provisions, that is, those regarding the territorial sea, internal waters, baselines and closing lines, archipelagic baselines, the breadth of maritime zones and islands, are disputes concerning the Convention (see articles 3 to 15, 47, 48, 50, 57, 76 and 121).

Although far from conclusive, it does suggest Judge Wolfrum may be willing to find that a maritime delimitation dispute of the type brought by the Philippines arises under UNCLOS pursuant to articles other than 74 and 83. If so, that would give the Philippines at least one potential vote on the arbitration panel — and a persuasive one, at that — in favor of an Annex VII tribunal finding in favor of its own jurisdiction to adjudicate the Philippines’ claims.

-Susan

A Brief History of the Solemn Salute Under International Law, and the Competence of an Annex VII Abritral Tribunal to Award a Salute as Satisfaction

In my previous post on Argentina’s procedural victory over Ghana in the ARA Libertad case, I talked about how Argentina used the UNCLOS’ dispute resolution procedures to get an expedited provisional measures order from the International Tribunal of the Law of The Sea — and how, in effect, that provisional decision operated as an adjudication of the merits. Argentina’s victory was, in part, attributable to its success in convincing the Tribunal that awarding Ghana to release the ARA Libertad would not be a resolution of the case in full. In reality, however, the Tribunal’s provisional order made the underlying dispute moot, and that a decision on the merits would never be reached.

Judge Paik, in his Separate Opinion, reasoned that ordering the release of the ARA Libertad was not the same as awarding Argentina the principal relief it was seeking, because “the various forms of relief sought by Argentina in its Application instituting the Annex VII arbitration are obviously broader than those sought in the request for provisional measures.” But, as I pointed out in my last post, through the Tribunal’s provisional measures order,

Argentina did receive, in substance, all of the relief that it actually sought — because the “obviously broader” “various forms of relief” that Judge Paik makes reference to were largely superfluous demands that the arbitral tribunal would not have even had jurisdiction to grant. In fact, I suspect that Argentina was fully aware that no tribunal would ever grant the superfluous forms of relief it demanded in its original Statement of Claim — but that it deliberately through a few bogus demands into its claims anyway, so that, when it made a request for provisional relief, Argentina could argue that the “provisional” measures it was seeking were not identical to the relief it sought in its Application.

In particular, two of the remedies Argentina sought were bogus claims for relief; these requests were guaranteed to be left unawarded and unaddressed by ITLOS in its provisional ruling, guaranteeing that there would be, at least in theory, a question ‘on the merits’ to be decided by the Annex VII arbitral tribunal. As stated in Argentina’s Statement of Claim, here are the four forms of relief that Argentina was seeking to be awarded:

Thus, Argentina requests the arbitral tribunal to assert the international responsibility of Ghana, whereby such State must:

(1) immediately cease the violation of its international obligations as described in the preceding paragraph;

(2) pay to the Argentine Republic adequate compensation for all material losses caused;

(3) offer a solemn salute to the Argentine flag as satisfaction for the moral damage caused by the unlawful detention of the flagship of the Argentine Navy, ARA Fragata Libertad, preventing it from accomplishing its planned activities and ordering it to hand over the documentation and the flag locker to the Port Authority of Tema, Republic of Ghana;

(4) impose disciplinary sanctions on the officials of the Republic of Ghana directly responsible for the decisions by which such State has engaged in the violations of its aforesaid international obligations.

The first request, for the release of the ship, is restitutionary relief, which is the most fundamental form of reparation under international law. As stated in Art. 35 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, “[a] State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed.”

Restitution, through the release of ARA Libertad, was the fundamental aim of Argentina’s institution of arbitration against Ghana. It is also precisely what Argentina was awarded by the International Tribunal of the Law of the Sea in provisional measures order.

Request number two is a straight-forward request for monetary compensation, in accordance with Art. 36 of the Draft Articles. Where restitution is insufficient relief to not repair a state’s breach in full, an award of monetary compensation — equivalent to a civil damages award — may be appropriate, to “cover any financially assessable damage.” In the Tribunal’s provisional award, Argentina did not receive compensation from Ghana — and to that extent, the Tribunal is correct that Argentina did not receive the full relief it sought. But Argentina’s financial damages were relatively limited, largely consisting of the costs of flying home a few hundred Argentinian cadets. The financial cost was not the state’s primary concern, and would not, in itself, have motivated an international arbitration.

In contrast to Argentina’s first two requests, the third and fourth requests made in its Statement of Claim 3 and 4 are demands for satisfaction, as described in Art. 37 of the Draft Articles:

Article 37. Satisfaction
1. The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.

There is reason to think that the inclusion of these requests in Argentina’s Statement of Claim was calculated; satisfaction in general is not a favored form of relief, and the satisfaction Argentina sought was phrased in a more insulting manner than was necessary. This may be because Argentina included these requests not because they actually wanted to receive what they were asking for, but because they wanted to convince the Tribunal — and as in fact it did convince Judge Paik — that there was daylight between Argentina’s demands for provisional relief and Argentina’s demands on the merits.

Argentina’s demands for satisfaction were not legitimate requests for relief, and they are not within the jurisdiction of any Annex VII arbitral tribunal to award. Although both the request that Ghana be forced to offer a “solemn salute” to Argentina’s flag and the request that the arbitral tribunal “impose disciplinary sanctions” against individual Ghanaian officials are illegitimate requests for satisfaction, in this post, I’ll only focus on why an Annex VII arbitral tribunal could not have rightfully awarded the relief sought.

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Argentina’s Sham Annex VII Arbitration and ITLOS’ Provisional Ruling on the Merits of the ARA Libertad Case

Libertad_1On October 2, 2012, the Ghanaian government detained an Argentinian “warship”, the ARA Libertad, that had been docked at the Ghanaian port of Tema while on a cadet training mission.

As a matter of domestic law, the detention of the ARA Libertad was a routine court action, nothing more than an ex-parte injunction order, duly issued by a Ghanaian civil court, for the purpose of preserving an asset that might be used to pay off a potential judgment against the asset’s owner. The plaintiff in that action, a Cayman Islands investment fund, was attempting to collect on a one billion dollar judgment against the Republic of Argentina — and had decided that one way of doing so would be to seize Argentinian ships had sailed into foreign jurisdictions.

As a matter of international law, however, the detention of the ARA Libertad was not quite so routine. NML Capital, the Cayman Islands investment fund responsible for the proceedings, might have thought it was being clever in targeting Argentina’s ships to collect against the judgment, but using a foreign sovereign’s judicial power to seize another nation’s “warship” — even if that warship is just an unarmed training boat — is not something that is going to go down well, diplomatically speaking.

And after diplomatic measures failed to resolve the dispute, Argentina responded by notifying Ghana, on October 29, 2012, that it was submitting the dispute to arbitration pursuant to Annex VII of the UN Convention on the Law of the Sea. Although both states are parties to UNCLOS, Ghana has not, in accordance with Article 287 of UNCLOS, declared a preferred venue for the settlement of disputes, which means that the forum for dispute resolution between Ghana and Argentina defaulted to UNCLOS’ arbitration procedures, at Annex VII.

As it turns out, this situation worked out very well for Argentina. As a result of its procedural handling of its claims concerning the ARA Libertad, in a mere six weeks of international litigation, Argentina was able to (1) secure the release of its vessel and (2) created a procedural posture which would likely result in the effective termination of any further related judicial proceedings, no matter the venue.

This result is due, in part, to the fact that the submission of a dispute to an Annex VII arbitral tribunal doesn’t actually do anything, other than serve as notice. The institution of proceedings under Annex VII is accomplished by a simple written notification to the opposing party, and once that is accomplished, nothing further happens until the parties decide upon a list of five arbitrators to sit on the panel. When Argentina notified Ghana that it was submitting the dispute to arbitration, Ghana was “supposed” to respond by appointing its own freebie arbitrator within 30 days of receiving the notification. But if Argentina does not thereafter force the matter by submitting a request for the President of ITLOS to make the remaining appointments, then the “arbitral tribunal” would simply never get off the ground.

And that appears to be what happened here.

Two weeks after instituting the Annex VII arbitration, on November 14, 2012, Argentina instituted proceedings before the International Tribunal on the Law of the Sea by requesting that the Tribunal issue a provisional ruling ordering Ghana to release the ARA Libertad. Argentina’s request was made pursuant to Article 290(5) of UNCLOS, which provides that “[p]ending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea… may prescribe, modify or revoke provisional measures.” Because the request for provisional measures was made in its initiation of the arbitration panel, in the letter to Ghana, Argentina was able to request a provision ruling from ITLOS a mere 14 days after it notified Ghana that it wanted to convene an Annex VII arbitration panel.

Of note, this sort of speedy provisional ruling could not have been requested in a case that was actually before ITLOS on the merits — although 290(1) allows ITLOS to issue provisional measures where it feels they are necessary, it does not explicitly allow a party to request them. Only by initiating an Annex VII arbitral tribunal could Argentina proceed with the request for provisional measures.

Four weeks later, on December 15, 2012, the Tribunal issued an order awarding Argentina all of the relief it requested in its Application for Provisional Measures:

Ghana shall forthwith and unconditionally release the frigate ARA Libertad, shall ensure that the frigate ARA Libertad, its Commander and crew are able to leave the port of Tema and the maritime areas under the jurisdiction of Ghana, and shall ensure that the frigate ARA Libertad is resupplied to that end.

In its Application for Procedural Measures, at paragraph 70, Argentina stated that “[t]o date, Ghana has not appointed a member of the arbitral tribunal and has not reacted to the invitation of Argentina to enter into discussions with it for the purpose of appointing the other members of the Annex VII arbitral tribunal.” This was somewhat premature at the time, as Ghana had until November 29, 2012 before it was required to appoint its own arbitrator, and Argentina had simply proceeded with filing its Request for Provision Measures at its earliest available opportunity.

But, as far as I can ascertain from the available records, Ghana never did get around to appointing an arbitrator. And, thereafter. Argentina never requested that the ITLOS President, pursuant to Article 3(e) of Annex VII, step in to make those appointments on the parties’ behalf. Although, pursuant to Article 3(b) of Annex VII, Argentina did appoint a single arbitrator to be on the arbitral tribunal (it could hardly have avoided doing so), there is no indication that Argentina has taken any further actions with regard to the arbitration panel it instituted. Having received “interim” relief that gave it everything it wanted, the Annex VII arbitral tribunal is now forgotten.

In other words, Argentina “initiated” an arbitration proceeding it did not intend to follow through on. The result is that the Tribunal’s Art. 290(5) provisional measure will, in effect, operate as a decision on the merits, and no further adjudication of this dispute will occur. The arbitral tribunal appears to have been stillborn, and the domestic suit also appears to have been abandoned. On December 19, 2012, the Ghanaian Supreme Court ordered that the ARA Libertad be released, in accordance with the Tribunal’s ruling, and the case was thereafter abandoned. After all, with the ARA Libertad no longer available for attachment, NML Capital had no reason to continue its Ghanaian collection action.

In short, Argentina’s use of procedural maneuvers enabled it to secure a fast-tracked award of its requested relief without any consideration as to the merits of its case. Heck, Argentina didn’t even have to prove that an Annex VII arbitration panel would even have jurisdiction to hear its dispute — it just had to convince the Tribunal that it had met, in the words of Judge Paik, the “rather low threshold of prima facie jurisdiction.”
Not a bad result at all.

At least for Argentina, anyway. The Tribunal’s award of provisional relief in the ARA Libertad case raises serious concerns about the effectiveness of UNCLOS’s dispute resolution procedures, however. Because, having received the provisional relief it requested from the Tribunal, Argentina seems to have the Annex VII arbitration that Argentina initiated seems to have been discarded.

The Tribunal’s judges are not unaware of this problem. In fact, three of the four separate opinions that were issued along with the Tribunal’s order in the ARA Libertad case make direct reference to the judges’ concerns regarding the Order’s lackadaisical approach to the issue of jurisdiction under Article 290(5). After noting their concerns, however, all three of those opinions then promptly fall over themselves in coming up with convoluted explanations for why, despite the significant jurisdictional problems in Argentina’s case, they nevertheless were ultimately in agreement with the Tribunal’s decision to award Argentina its requested relief.

Judge Wolfrum and Judge Cot, in their separate opinion, actually agree with Ghana that an Annex VII arbitral tribunal would not have jurisdiction to hear Argentina’s claims. The Tribunal’s decision to issue provisional relief to Argentina, they argue, would not be consistent with the purposes behind of Article 290, which is to ensure that a meaningful decision on the merits can be reached. As such, “[p]rovisional measures may only be requested and decided in the context of a case submitted on the merits. Provisional measures are meant to protect the object of the litigation in question and, thereby, the integrity of the decision as to the merits.” Granting provisional relief in the ARA Libertad case is troubling, even if it was done to protect Argentina’s own sovereignty, because “[i]t should always be borne in mind that the prescription of provisional measures constitutes an infringement of the sovereign rights of the responding State.”

But despite this acknowledged jurisdictional problem, Wolfrum and Cot don’t let that stand in the way of them concurring with the Tribunal’s ultimate decision:

Although we disagree with the finding of the Tribunal that the arbitral tribunal under Annex VII has jurisdiction in accordance with article 288, paragraph 1, of the Convention, in our view, Ghana is estopped from opposing the proceedings at this phase. … The Tribunal cannot accept the submission of Ghana “to reject the provisional measures filed by Argentina on 14 November 2012”. Ghana is estopped from presenting any objection on the matter, whatever the validity of the arguments presented to that effect.

In other words, according to Wolfrum and Cot, maybe the Tribunal doesn’t have jurisdiction to adjudicate a dispute between two sovereigns — but that’s okay, because, really, this is just a default judgment case, anyway, so there isn’t any real sovereignty violation going on.

Judge Paik, too, thinks that the Tribunal’s jurisdiction in the ARA Libertad case may be a little shake. Like Wolfrum and Cot, Judge Paik’s separate declaration to the Tribunal’s Order acknowledges that provisional rulings should not function as a decision on the merits:

As provisional measures are prescribed without there being any need to prove the conclusive existence of jurisdiction or the validity of claims, a request for measures that would result in virtually resolving the dispute should not be accepted. The Permanent Court of International Justice emphasized this point when it stated that any request ‘designed to obtain an interim judgment in favour of a part of the claim formulated in the Application’ should be dismissed.

Judge Paik ultimately decided that the Tribunal’s cavalier approach to jurisdiction was justified due to the fact that the Art. 290(5) ruling didn’t really give Argentina everything it wanted, it only mostly did:

In the present case, the relief sought by Argentina in the request, which is the unconditional release of the warship ARA Libertad, comes close, in substance, to the principal relief sought in the claims submitted in its Application. However, this fact alone should not preclude the Tribunal from considering the measures sought by Argentina. In addition, the various forms of relief sought by Argentina in its Application instituting the Annex VII arbitration are obviously broader than those sought in the request for provisional measures.

But Judge Paik’s justification for the Tribunal’s award is unsatisfactory. Because Argentina did receive, in substance, all of the relief that it had sought in its Application — as the “obviously broader” “various forms of relief” that Judge Paik makes reference to in his opinion were largely superfluous demands that the arbitral tribunal would not have even had jurisdiction to grant if it wanted to. In fact, I suspect that Argentina was fully aware that no tribunal would ever grant the overreaching demands it made in its original Statement of Claim. Rather, Argentina was fully aware that it would never succeed in having Ghana be ordered to give a “solemn salute” to Argentina’s flag, but it deliberately through the bogus demand into its claims anyway — so that, when it made its play for provisional relief in front of the Tribunal, Argentina could argue that the “provisional” measures it was seeking were not identical to the relief it sought in its Application.

The third separate opinion, from Judge Lucky, echoed all the same concerns as did Wolfrum, Cot, and Paik. Like them, Judge Lucky noted that “[w]hen a party to a dispute seeks the prescription of provisional measures, the Tribunal has to consider whether by granting the Request, it prevents the parties from taking any action that would render the final decision on the merits otiose.” But, in his explanation for why he nevertheless agreed with the Tribunal’s result, Judge Lucky provided perhaps the most honest assessment of the basis of his decision:

I think that international law and the relevant articles in the Convention should be considered as a whole and in these circumstances article 32 can be deemed to include internal waters; not only because it does not explicitly exclude the immunity of warships in internal waters, but because it should be read in congruence with other rules of international law which guarantee such immunity. Therefore, where the law is silent a tribunal ought to take a pragmatic approach and, bearing in mind the circumstances of the case, interpret and construe the law accordingly.

In other words, the Tribunal’s decision to award provisional relief to Argentina was justified for “pragmatic” reasons, and in accordance with well established norms of international law that exist outside of narrow scope of UNCLOS’s subject matter jurisdiction. While the ARA Libertad case undoubtedly put the Tribunal in an uncomfortable position — and I can understand the Tribunal’s reluctance to be complicit in one state’s unprovoked seizure of another nation’s military vessel — in order to avoid that result, the Tribunal arguably engaged in an overly expansive interpretation of its own jurisdiction.

If that is what happened here, then the Tribunal’s order was a short-sighted one. Judges Wolfrum and Cot, in their separate opinion, give warning of the long-term consequences of such an approach:

Any attempt to broaden the jurisdictional power of the Tribunal and that of arbitral tribunals under Annex VII going beyond what is prescribed in article 288 of the Convention is not in keeping with the basic philosophy governing the dispute settlement system of the Convention. It undermines the understanding reached at the Third UN Conference on the Law of the Sea, namely that the dispute settlement system under the Convention will be mandatory but limited as far its scope is concerned.

In the end, however, the true loser in the ARA Libertad case isn’t the Tribunal. It isn’t even NML Capital, the thwarted judgment creditor that kicked off the dispute in the first place — they’ll likely just find a new scheme for how they can get their billion dollars back from Argentina.

The real loser is Ghana.

Ghana didn’t even have a stake in this fight, initially. It was Ghana’s bad luck that NML Capital ultimately decided to use Ghana’s domestic judicial system to try and collect against Argentina. By not finding some judicial excuse to deny NML’s request for an injunction, Ghana’s judiciary dragged the whole state into an international dispute that was never its to fight in the first place. It was Ghanaian tax payers that bore the brunt of the costs, too; the Ghanaian port authority lost a reported $7.6 million as a result of the ARA Libertard proceedings.

But maybe Ghana won’t be totally out of luck — and perhaps the litigation over the ARA Libertad affair isn’t entirely over. As of December 2012, anyway, the Ghanaian Port Authority was considering going after NML Capital to recover its losses.

-Susan

Update, 2-26-13: Looks like Argentina was more serious about this arbitration than it initially appeared. Argentina had requested that the President of ITLOS appoint three arbitrators for the arbitration panel. Presumably, then, Ghana did nominate its own choice of arbitrator, but the parties were unable to decide upon the remaining three. It will be curious to see whether Argentina continues to prosecute this action.

Sovereignty, Soft Power, and the U.S.’s Refusal to Ratify the UN Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea (“UNCLOS”) is up for debate before the U.S. Senate once again, which means the perennial debate over whether the U.S. should finally ratify the treaty is currently making its rounds through the media. Last week, five former Secretaries of State — Henry Kissinger, Condoleezza Rice, George Shultz, James Baker, and Colin Powell — joined in on the effort, publishing an OpEd in the Wall Street Journal on Time to Join The Law of the Sea Treaty: The U.S. has more to gain by participating in convention deliberations than by staying out. The former Secretaries of State lay out their case for why ratifying UNCLOS in our national security, economic, and sovereign interests.

Unfortunately, judging from the tenor of other recent articles and political statements regarding UNCLOS, this latest round of debate before the Senate will not be any more productive at achieving that end than prior rounds have been.

The political wrangling over whether or not to ratify the UNCLOS has long been stalled out in the U.S., having been transformed into an argument between competing ideals rather than a policy debate. Opposition to UNCLOS is often not really about UNCLOS; the question has instead become a symbolic fight between two opposed camps, the sovereignists and the internationalists, regarding the U.S.’s proper role in the international community. Are we going to protect the democratic interests of the American people from foreign interference with our national interests by non-democratic international organizations? Or are we going to be a good little team player, and join UNCLOS to demonstrate just how committed the U.S. is to cooperation and kumbaya?

As a result, the arguments against ratifying UNCLOS tend to mention “sovereignty” a lot, without ever going into too many specifics, or else recite a list of generic problems inherent in just about any international agreement, without ever specifying why UNCLOS is more objectionable than any other treaty. In recent months, however, the argument de jure of the sovereignists has been that the U.S. cannot join UNCLOS because of China.

Because of what about China, exactly? Well, that part is not entirely clear. Although the specifics of the China argument are often murky, its general formulation usually goes something like this:

Herein lies a major danger in U.S. ratification of UNCLOS. In adopting, promoting, and acting on new interpretations of international law, China is attempting to upset the status quo and establish new norms of maritime behavior. By signing up to UNCLOS, the United States might unintentionally signal approval of these errant interpretations.

What this argument lacks in logic, it makes up for with self-promoting claims of American virtue, and how the United States — unlike, say, China or Iran — has no need to enter foreign treaties, since we already abide by international law. The sub-argument for this claim against UNCLOS is the “but we’re already obeying UNCLOS so why should we sign it” argument:

Besides, we are adhering to UNCLOS. It’s the Chinese that are trying to redefine UNCLOS according to their own purposes, without re-negotiating the contract, and in so doing undermining customary law.

Of course, this claim is completely contradicted by the arguments of yet other UNCLOS detractors. John Bolton, the former U.S. ambassador to the UN, suggested in his own Wall Street Journal OpEd that the U.S. shouldn’t sign on to UNCLOS because it gives us the power to redefine the law of the sea for our own purposes. By not being part of UNCLOS, he argues, we can act at will, while China will be stuck trying to find loopholes in the treaty:

With China emerging as a major power, ratifying the treaty now would encourage Sino-American strife, constrain U.S. naval activities, and do nothing to resolve China’s expansive maritime territorial claims. … If the Senate ratifies the treaty, we would become subject to its dispute-resolution mechanisms and ambiguities. Right now, since we are the world’s major naval power, our conduct dominates state practice and hence customary international law—to our decided advantage.

So, to summarize these claims: (1) Joining UNCLOS would be bad because, through China joining UNCLOS, China has been able to redefine the law of the sea by arguing for new interpretations of it; and (2) Joining UNCLOS would be bad because, through the U.S. not joining UNCLOS, the U.S. has been able to redefine the law of the sea through its own practices.

On the other hand, the arguments in favor of UNCLOS are largely premised upon a laundry list of supposed soft power benefits that are to be gained through ratifying the treaty. The OpEd from the former Secretaries of State are a good example of how nebulous and unsatisfying these alleged benefits can sound, in contrast to the claims of the sovereignists:

As the world’s pre-eminent maritime power with one of the longest coastlines, the U.S. has more than any other country to gain—and to lose—based on how the convention’s terms are interpreted and applied. By becoming party to the treaty, we would strengthen our capacity to influence deliberations and negotiations involving other nations’ attempts to extend their continental boundaries.

Which is probably why the pro-UNCLOS factions have, for nearly two decades now, failed to get UNCLOS ratified. No matter how you try and spin it, “increasing our capacity to influence deliberations” sounds like a rather flimsy prize, especially when it comes at the cost of American sovereignty.

But this lack of substantive debate likely persists due to the fact that the practical effects for the United States for ratifying UNCLOS, whether negative or positive, have been relatively minor. To date, the U.S. has done a decent job of splitting the baby when it comes to UNCLOS, consistently abiding by most of UNCLOS’s provisions while simultaneously claiming to only be following customary law. As a result, the question of whether or not the U.S. should formally ratify the convention has been largely academic.

Because the U.S. has been a superpower throughout all relevant points of UNCLOS’ existence, whether the U.S. joins or doesn’t join UNCLOS has made so little difference that the U.S. could afford to ignore the debate altogether, or at least make it into a question of lofty principles rather than concrete policy. Which is why the U.S. has succeeded in being the only major power that has avoided ratifying UNCLOS — the stakes just haven’t been that high.

But UNCLOS has been in force for eighteen years now. U.S.’s strategy of refusing to commit one way or another will not come without a price for much longer. Starting with 60 member nations when it came into effect in 1994, UNCLOS now has 162 members, including every Western nation other than the United States. During that time period, UNCLOS has been steadily solidifying, from its initial existence as a recital of customary international law, into the widely-adopted international institution it is today.

With 80% of the world’s nations party to it, UNCLOS is now the framework by which States negotiate the division of sovereignty interests over the world’s oceans. The law of the sea is no longer made through pure customary law, as it was in the 18th and 19th centuries; the frame for the debate has changed, and as a result UNCLOS and law of the sea are now effectively synonymous.

This is not to say that the rules under the UNCLOS regime are vastly different from what the rules were under the old pure-CIL regime. The actual substance of the law of the sea has not changed all that much — in most situations, complying with customary international law of the sea means complying with UNCLOS, and vice versa.

But even if the rules themselves haven’t changed, the ways in which those rules could change has been altered. UNCLOS is now the mechanism to which the overwhelming majority of states turn when they feel a need to settle a question regarding the content of the law of the sea. True, the old law of the sea is not likely to experience much upheaval, and UNCLOS is less important there — those customary norms were developed over centuries of seafaring, as states scuffled and squabbled with one another until an adequate balance of their rights was finally struck, and as a result those rules now enjoy a sort of tenure under international law.

But UNCLOS also provides the framework under which new rules are crafted, tinkered with, implemented. When, due to political or environment change, novel situations arise — be it the development of new deep seabed mining techniques, the opening of the Northwest passage, commercial investments in Antarctica, rising international sea levels, or what have you — states will have to find new ways of drawing jurisdictional lines and of coordinating their activities. Right now, the primary institution for establishing those new ways is through UNCLOS. UNCLOS provides both the procedural mechanisms for how and when states actually talk to one another, and the substantive rules that they play by.

When new jurisdictional schemes need to be created, states anchor their claims with references to UNCLOS, and expect states advancing competing interests to do the same. States that try to advance their interests outside of — or worse yet, in contradiction with — this framework are punished for it, occasionally through hard procedural mechanisms, but more often through a softer loss of diplomatic power. True, using the social framework of UNCLOS will not be nearly as effective as using the world’s strongest navy, when it comes to advancing the national interest — but the UNCLOS framework is present in every debate and discussion among UNCLOS members regarding international law of the sea, setting the scene for international relations for years to follow. U.S. naval ships, in contrast, are only invoked on the occasions where the U.S. direct interests are on the line, and are rather imprecise tools when it comes to shaping the precise contours of international law.

John Bolton, in the OpEd quoted above, displayed a somewhat questionable understanding of the concept of “state practice” by making the dubious assertion that the U.S. can unilaterally establish state practice, simply by virtue of its status as a superpower. But even if this claim were true, it fails to recognize a corresponding fact — that the overwhelming majority of state practice and opinio juris both lies behind using UNCLOS’s mechanisms as a means of developing international ocean policy. Superpower or not, the U.S.’s “state practice” of refusing to operate through UNCLOS hardly outweighs the state practice of the 162 nations who do use the institution. The institutional weight of UNCLOS is becoming firmly entrenched, and the longer the U.S. refuses to play ball, the less opportunity the U.S. will have to shape that institution in ways favorable to U.S. interests.

When it comes to the generation and development of customary international law of the high seas, UNCLOS is currently the biggest game in town. In a decade or so, it will be the only one. China, it seems, has realized this already. Maybe the next time ratification of UNCLOS comes up for vote before the Senate, the U.S. will have finally realized it too.

-Susan

Ecopiracy in the Contiguous Zone

It’s been a relatively exciting week for international law of the sea. Not only has Iran been demonstrating the importance of territorial seas, why straight baseline measurements matter and when they are appropriate, and the differences between transit and innocent passage, but now three Australians are helping to illustrate the concept of contiguous zones, thanks to their unauthorized boarding of a Japanese whaling support ship:

The so-called “Sea Shepherd” activists — Geoffrey Tuxworth, Simon Peterffy and Glen Pendlebury — boarded the Japanese whaling vessel Shonan Maru II early Sunday morning off the southwest coast of western Australia.

….

The three men are members of an Australian environmental organization called Forest Rescue Australia and their mission was designed to prevent the Japanese whaler from tailing an anti-whaling flagship belonging to the Sea Shepherd Conservation Society.

Because this all took place about 16 miles off of the Australian coast, the men boarded the ship and were apprehended by the Japanese vessel within Australia’s contiguous zone. There now seems to be a dispute between the Sea Shepherd organization and the Australian government over the significance of this fact — with the Sea Shepherds believing, while the Australian government is stuck in the position of awkwardly noting that the three men who boarded the vessel are subject only to Japanese laws.

Although the Australian government did eventually work through diplomatic channels to arrange for the release of the three activists, its position was that Australia had no particular claims to jurisdiction over the incident, beyond the fact it involved Australian citizens:

[Federal Attorney-General Nicola Roxon] said consular officials were attempting to contact the men, and the Government’s priority was to ensure their safety and well-being, and return to Australia.
“It is a difficult situation. This incident happened outside our territorial waters, in our exclusive economic zone,” she said.
“But that doesn’t give us rights for Australian law to automatically apply.
“In fact, our advice is that Japanese law will apply because a Japanese boat is the one that’s been boarded.”

The Sea Shepherds do not agree with the Gillard Government’s view:

Capt [Paul] Watson said he had not expected the men to be taken to Japan and charged.

“Considering it was within the 24 miles contiguous zone, which is where the Australian immigration and Customs has absolute authority, we didn’t think the Australian government would allow the Japanese to take Australian citizens out of that area.”

He accused Attorney-General Nicola Roxon of “not doing her homework”, adding the vessel was only 16 miles off the beach.

“This is not some ordinary boat that was boarded, this is a criminal boat supporting a criminal operation.”

Unfortunately for the Sea Shepherds, however, their interpretation of international law is a bit misguided. The contiguous zone’s actual significance is pretty negligible in most contexts, and completely negligible here. The contiguous zone is the band of ocean territory just beyond a nation’s territorial waters, and overlapping with its EEZ. States are permitted to extend this zone up to 24 miles from their coast; this means, in the typical circumstance, a nation’s contiguous zone is a 12 mile band that begins 12 miles out at sea, where the state’s territorial sea ends.

Under Article 33 of UNCLOS,

1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

(b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

And that is pretty much the extent of the contiguous zone’s importance, when it comes to a coastal state’s jurisdiction over foreign ships. Moreover, as the Shonan Maru II is not itself a whaling ship or a research ship — it’s basically a bodyguard for the whaling ships, engaged in counter-harassment measures against the Sea Shepherds — it was not even taking any actions which could have subjected it to Australian regulations at the time the Forest Rescue men boarded it. As for Australian criminal laws (even presuming that the Japanese could possibly have committed any violations), such laws are only enforceable in the contiguous zone to the extent that the enforcement was related to violations that occurred or were about to occur within Australia’s territorial sea. Here, all of the events concerned took place outside of territorial waters, and so Australia’s extended enforcement jurisdiction is inapplicable.

As such, if any criminal acts occurred with regard to the boarding of the Shonan Maru, the crimes were probably committed by the Forest Rescue activists rather than the Japanese whalers. In fact, an argument can even be made that, by forcibly boarding a Japanese vessel outside of Australian territorial waters with the intent of detaining it, or at least of diverting its course, the activists were engaging in an act of piracy, pursuant to UNCLOS Article 101. Although the Japanese whalers are hardly innocent when it comes to breaches of international law, in this case, it is the Sea Shepherds that are in the wrong.

-Susan

Is the Strait of Hormuz Governed by Treaty or by Customary International Law?

The Strait of Hormuz, as news articles in recent weeks have repeatedly stressed, is kind of a big deal when it comes to the global oil trade. The Strait, which is a mere 20 miles across at its narrowest point, connects the Persian Gulf and the Gulf of Oman — and also connects the rest of the world with 40% of its daily oil tanker traffic.

Which is why Iran’s recently renewed threats to close down trade through the Strait of Hormuz are risky for all concerned. Risky for the rest of the world, because any disruption would contain a severe economic toll. And risky for Iran, because if it ever actually did attempt to shut down the Strait, it would intensely piss off literally the entire world. So, while Iran periodically makes noises about taking such a move, the odds of it actually carrying out on its threats are minimal. Nevertheless, given the costs involved, the risk, however small, is taken extremely seriously by the rest of the world.

But ignoring the reality of the situation for a moment, and pretending as if international law actually possessed the power to effect state’s actions in the Gulf, would Iran actually have the legal right to carry out any of its threats?

For once, international law has a straightforward answer: no. Any attempt by Iran to close the Strait of Hormuz would be unambiguously illegal; the shipping lanes through the Strait of Hormuz, as laid out by the International Maritime Organization, lay within the territorial sea of Oman. Although the 12-mile territorial seas of Iran and Oman overlap at the narrowest points of the Strait, the deepest waters — and thus the shipping channels — lay to the south, within Oman’s territorial waters. As such, any military action by Iran to shut down shipping through Hormuz would inevitably impinge on Oman’s sovereign rights.

But Iran’s legal rights over the Strait of Hormuz vis-à-vis the rest of the world, and ignoring Oman’s sovereignty concerns, are a slightly more complicated question, although even there Iran’s claims are tenuous. The precise extent of Iran’s legal authority, however, differs based upon whether one applies the doctrine of innocent passage or transit passage to the Strait.

Both doctrines concern the passage of ships (as well as planes) through a nation’s territorial sea, which extends up to 12 miles from a state’s coast. The doctrine of innocent passage, which bears a greater claim to customary international law status, applies throughout all the territorial seas of the world. The concept of transit passage, in contrast, applies solely to those sections of territorial seas provide an exclusive link between two larger bodies of waters — i.e., straits.

The right of innocent passage, laid out in Articles 17 – 26 of the United Nations Convention on the Law of the Sea (“UNCLOS”), protects the right of ships in transit to pass through another nation’s territorial sea, subject to certain regulations that may be imposed by the sovereign. Passage is considered innocent “so long as it is not prejudicial to the peace, good order or security of the coastal State.” Innocent passage, however, can be subject to certain conditions imposed by the sovereign state, and may in fact be suspended temporarily in times of emergency.

In contrast, transit passage, which is regulated by Articles 37 – 44 of UNCLOS, is nonsuspendable, and not limited to innocent passage. The conditions that may be imposed by sovereign states are limited, and not subject to any real teeth. So long as a ship is not engaged in any nontransit activities and complying with certain traffic and safety measures, coastal States must permit ships to pass through their territorial seas.

So if the Strait of Hormuz is governed by transit passage, Iran’s legal ability to take any action to impede transport through the strait, even against an unfriendly foreign nation’s warships, is more or less nil. If, on the other hand, the regime of innocent passage applies, Iran has a fair bit more wiggle room to work with. Particularly in a situation where hostilities are shading towards war and the use of force, where a coastal state’s territorial waters governed by a regime of innocent passage, that state has a non-negligible claim to a right to enforce extensive regulatory control over the area, up to and including an ongoing suspension of all transit rights.

The question then is whether the Strait of Hormuz is subject to transit passage or not. Textually, it would seem clear that the Strait of Hormuz falls with Article 37’s scope, as it is a “strait[] which [is] used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.” Thus, under UNCLOS’s text, a strait like the Strait of Hormuz — which connects the Persian Gulf’s EEZ to the Strait of Oman’s EEZ, as well as the high seas beyond — is subject to transit passage. So why doesn’t that settle the question for good as to what transit regime applies here?

Well, for one, neither the U.S. nor Iran have ever actually gotten around to ratifying UNCLOS. Since neither state has ever entered the treaty, its terms can only apply if the terms are also obligatory under customary international law. And there, opinions differ, with no few authorities holding that the general right of transit passage has yet to be established outside of treaty-conferred obligations.

On the other side of that argument is the United States, which, despite its somewhat contentious and complicated relationship with UNCLOS, has long held that the bulk of UNCLOS’s provisions are merely a codification of customary international law. This includes UNCLOS’s provisions regarding transit passage, as U.S. authorities have repeatedly asserted these norms to be a component of CIL:

…the United States…particularly rejects the assertions that the…right of transit passage through straits used for international navigation, as articulated in the [LOS] Convention, are contractual rights and not codification of existing customs or established usage. The regimes of…transit passage, as reflected in the Convention, are clearly based on customary practice of long standing and reflects the balance of rights and interests among all States, regardless of whether they have signed or ratified the Convention… (Diplomatic Note of August 17, 1987, to the Democratic and Popular Republic of Algeria (intermediary for Iran)).

And,

…the regime [of transit passage] applies not only in or over the waters overlapped by territorial seas but also throughout the strait and in its approaches, including areas of the territorial sea that are overlapped. The Strait of Hormuz provides a case in point: although the area of overlap of the territorial seas of Iran and Oman is relatively small, the regime of transit passage applies throughout the strait as well as in its approaches including areas of the Omani and Iranian territorial seas not overlapped by the other. (Navy JAG, telegram 061630Z June 1998).

In contrast, Iran has consistently maintained the opposite view, holding that transit passage only exists among states that have agreed to submit to that regime via ratification of an international agreement. Although Iran has not ratified UNCLOS, it has signed the convention, and with its signature it submitted the following declaration:

Notwithstanding the intended character of the Convention being one of general application and of law making nature, certain of its provisions are merely product of quid pro quo which do not necessarily purport to codify the existing customs or established usage (practice) regarded as having an obligatory character. Therefore, it seems natural and in harmony with article 34 of the 1969 Vienna Convention on the Law of Treaties, that only states parties to the Law of the Sea Convention shall be entitled to benefit from the contractual rights created therein.

In other words, Iran viewed Article 38 of UNCLOS, concerning the right of transit passage through straits used for international navigation, to be an exclusively treaty-based obligation, and not one of customary international law. As Iran never got around to ratifying UNCLOS, the implication would be that Iran does not in fact believe itself to have acceded to any such treaty obligation. This position has been confirmed by numerous assertions by Iranian officials in the decades prior to and since UNCLOS’s entry into force.

Iran is not alone in this belief about transit passage’s status under international law, either. Oman, motivated by a similar interest in the Strait of Hormuz, also filed a declaration along with both its signature to and ratification of UNCLOS, which questioned the CIL status of transit passage, and also suggested that Oman did not intend to adopt the obligations of transit passage conferred by treaty, either. Its ratification statement indicated that it only recognized and agreed to compliance with provisions concerning the regime of innocent passage — and not that of transit passage. As such, Oman’s ratification was subject to the condition that “innocent passage is guaranteed to warships through Omani territorial waters, subject to prior permission.”

Although these declarations have never actually been enforced or acted upon by either Oman or Iran, making the bulk of state practice with regards to the Strait of Hormuz to be in conformity with the existence of transit passage through the Strait, it does not appear that either coastal state believes itself to be legally bound by a customary international law of transit passage, either. Moreover, state practice and opinio juris elsewhere in the world likewise fails to unambiguously confirm the existence of a customary international law of transit passage. As such, it cannot be automatically assumed that Iran does not possess a right to limit transit through the Strait of Hormuz, at least to the extent permitted by the regime of innocent passage.

While the practical effect of transit passage’s precise status under international law will likely (definitely) be minimal in shaping events in the Persian Gulf in the days and weeks to come, parties on both sides of the dispute will be likely to invoke the application of international law in their rhetoric, as they seek to imbue their military actions with the color of law. Still, as the Strait of Hormuz does not belong to Iran alone, and Iran’s sovereign claims over the Strait are limited by Oman’s own claims to its territorial seas, any action taken by Iran to close the entirety of the Strait will necessarily be an act of force prohibited by the UN Charter, and unquestionably a violation of international law.

-Susan

The Law of Aliens, Part III.1: Extraterrestrials on the High Seas

Editor’s Note: Yeah, I know I said this was going to be a three part series, but then I got slowed up this week. So the series will still be three parts, it’s just that part III is going to be done in two installments.

What happens if extraterrestrials slip through our solar system undetected, and are only encountered for the first time when they arrive on Earth itself?

Space law would no longer be applicable; rather, the situation would be governed by more traditional and more firmly established notions of international law. Although international/space law has not yet reached an ironclad understanding on where precisely outer space begins, for purposes of domestic laws and aeronautics regulations, the limit is most often set as the lowest point from sea level where an object can orbit the earth, i.e., 62 miles/100 kilometers up. (Objects cannot orbit for long at this altitude, due to air resistance, but they can take a few spins around the block.) Australia, in fact, has been proactive at setting the 100km boundary, and it does seem likely that it is eventually going to become the standard delineation.

So if aliens visit earth and are doing anything other than orbiting the planet, it’s good old fashion international law that’s going to provide any legal framework for the alien visitation. This means that, in practice, law will be a lot more relevant than it would be in the case of an outer space encounter.

A state’s sovereignty over its territory is one of the most fundamental concepts of international law. A state may not take action within another state’s territory absent consent. There are exceptions to every rule, of course. But although many parts of international law are often discarded or ignored, respect for a sovereign state’s territory is taken very seriously indeed.

In contrast, it would be fair to say that, in the not exactly probable event of an alien encounter in space, international law would most likely be given minimum lip service and little more. Space law is an infant body of law, and for obvious reasons, it is overloaded on the opinio juris component as compared to the state practice component. That’s a good indication that, in the event of a dramatic change in circumstances, states will not be reluctant to act in ways inconsistent with space law as it is currently understood, and instead will seek to justify their actions after-the-fact on the basis of previously “undiscovered” interpretations of law.

So, in a nutshell: international law would not survive five minutes past the first alien encounter in space.

On Earth, however, territorial sovereignty has such a deeply established normative and positive force in shaping the relationships between states that even in the event of an extraterrestrial landing, international law would continue to play a predominant role in how the world community reacted.

The exact strictures of international law to be applied, however, will depend in practice upon the location where the aliens choose to land.

Situation #1: Aliens land in the middle of the Atlantic Ocean and hover out over the high seas.

This is actually the worst possible scenario, for the aliens and probably also for earth. A “too many cooks in the kitchen” problem would quickly develop, as the high seas are open to all states. This includes a freedom of navigation, a freedom of overflight, and a freedom of scientific research. Essentially, every state would be free to go to, investigate, or attempt to talk to the alien spaceship — so that if North Korea wanted to start doing some “scientific research” on the ship, it would not be a straight forward matter for any State to justify prohibiting them from doing so.

If it turns out the aliens are friendly, Earth nations would be able to repel any attempts by non-state actors to attack the spaceship, as all States possess universal jurisdiction over pirates on the high seas. It wouldn’t be too much of a stretch to argue that unprovoked violence directed at a spaceship is an act of piracy, entitling other nations to use force to repel any attempts by private parties to act aggressively towards the spaceship.

But attacks on the spaceship by State actors will not be so easily regulated. Under Article 95 of the Convention on the Law of the Sea, “Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.” So if it’s North Korea acting aggressively against the aliens, we’ve got a problem.

True, Article 88 of the Law of the Sea Convention does declare that “The high seas shall be reserved for peaceful purposes.” But in the words of Captain Barbossa… this is really more of what you’d call a guideline than an actual rule. It doesn’t actually prohibit military actions, per se. It is international law of war, not the law of the sea, that would be the primary body of law to govern hostilities on the high seas. Although under international law, the threat or use of force is traditionally prohibited, it does not, technically speaking, prohibit the use of force against aliens.

Article 2:4 of the UN Charter declares, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” An alien spaceship does not obviously possess territorial integrity or political independence as a state, or at least not so clearly that North Korea couldn’t make a facially legitimate claim that Article 2:4 doesn’t apply to them. So the aliens would be fair game.

This doesn’t necessarily mean they’re defenseless, under international law. The right of self-defense is preserved in the UN Charter, and self-defense does extend to defense of others (I’ll assume for now aliens could qualify as part of the “collective” in Article 51) but in the chaos of an international free-for-all on the high seas, this would be of little practical protection. Besides, it’s not exactly settled law, regarding what acts a State can take against an extraterrestrial in the high seas before third party rights of self-defense kick in.

End result? The Law of the Sea isn’t going to be sufficient to protect or regulate any alien encounters on the high seas. If we’re lucky, however, the UN Security Council will be able to reach some kind of agreement and enable collective action to be taken. Under Article 42 of the UN charter, a blockade is one of the actions the Security Council can authorize to restore peace and international order. Although “blockades” are traditionally understood to apply to coastal navigation, it is not a heavy abuse of the language to say Article 42 would permit the Security Council to establish a blockade in the high seas. In this manner, the Security Council could authorize the use of force to protect the alien ship and to impose order on the normally unregulated oceans.

Next up tomorrow: The Law of Aliens, Part III.2: Extraterrestrials in Somalia South Africa and Extraterrestrials in France.

Previously: The Law of Aliens, Part I: The Law of Post-Atmospheric Extraterrestrial Encounters By National or International Organizations, and Part II — The Law of Outer Space Encounters With Extraterrestrials by Sub-State Entities.

-Susan

Here, Have Some More Pirates — Part I

Sadly, with regards to the hijacking of the Arctic Sea, as of yet there does not appear to be a factual basis for any truly interesting questions of jurisdiction, despite the proliferation of nations involved with strong jurisdictional claims over some or all of the hijacking. Russia has asserted full jurisdiction over the incident, and at the moment it does not appear any other nations are objecting. The hijackers, now in Moscow, have been charged under the Russian criminal code for piracy and kidnapping:

“On the strength of the gathered evidence, seven captors have been charged with complicity in the commission of the crimes covered by Article 227, Part 3 and Article 126, Item “a”, Part 3 (piracy and kidnapping committed with the use violence and arms by organized group). The eighth suspect has been charged with masterminding the above crimes,” Markin said.

However, it looks as if the hijackers themselves have been making noises about the propriety of Russian jurisdiction over them, both under international law and domestic Russian law:

According to Russian media, hijacking suspects say their case should be heard not in Russia but in Malta, or Sweden – in whose Baltic Sea waters the alleged hijacking occurred. But Bastrykin stressed that Russia now has jurisdiction over the ship and the suspects.

“We have the full legal right to conduct investigative activities with both the ship and its crew,” he was quoted as saying.

Egons Rusanovs, a lawyer at Rusanovs and Partners, says:

Russia has no relation to the current preliminary investigation into this case. This fact contradicts concrete norms of international law, in particular, the convention on maritime law adopted in 1982. This case should be under jurisdiction of either Malta or Sweden.

Dmitry Pronin, a lawyer who represents detained Latvian citizen Vitalij Lepin, believes that “this arrest is illegal and it’s without ground, because in accordance with the Russian Criminal Code, the type of punishment should be decided within 48 hours after the factual detention. In this case it took four days to specify the preventive punishment.”

It’s hard to know if there’s any weight to the hijacker’s arguments without more than that, but I’m highly skeptical about their chances of prevailing on that front. Under the Article 105 of the UN Convention on the Law of the Sea (“UNCLOS”),

On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

This article reflects longstanding customary international law that grants universal jurisdiction over all acts of piracy on the high seas, and that any state may capture and punish pirates wherever they may be found where they are outside of any other state’s territory. Assuming Russia did capture the Arctic Sea in international waters, Russia is soundly exercising its universal jurisdiction by bringing the pirates to Moscow to stand trial under Russian law. I expect the hijackers are trying to argue they were never pirates in the first place, and so Article 105 is not applicable, but that’s questioning the factual basis of jurisdiction, not the legal basis.

Moreover, while it is hard to get a straight story on the nationalities of the hijackers, all of the Arctic Sea’s crew were Russian, and the hijackers were themselves either Russian or stateless people who habitually lived in Russia. Under Article 6(1)(c) of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, this gives Russia some degree of an international obligation to establish jurisdiction over the pirates, and under 6(2)(a) and (b) clearly had the right to exercise such jurisdiction if it chose to do so.

So if Russia captured the pirate on the high seas, under a combination of passive personality jurisdiction, active personality jurisdiction, universal jurisdiction, and specific grants of jurisdiction under treaties, there is little argument to be made that Russia does not properly have jurisdiction over the pirates.

However, an important question that I’ve not seen definitively answered yet is where exactly in the Atlantic the Arctic Sea was captured by the Russian warship. Was it on the high seas, or in Cape Verde’s territorial waters? UNCLOS provisions on the seizure of pirates extend only to the high seas. Once in a nation’s territorial seas, authorization by the coastal state is required before any such enforcement action can be taken.

All I’ve been able to find on the exact location of the recapture is this:

“I have a report from the Russian Navy that the frigate is going to enter Cape Verde territorial waters,” Alexander Karpushin told the Russian News Service. “The warship has its own search plan.”

Cape Verde has declared that its territorial seas extend to the full 12 miles permitted under international law (see here [DOC]). Although the Russian warship would have had a right of innocent passage within that 12 mile territorial sea if the actual capture took place inside that limit, the question of jurisdiction gets trickier:

“[I]t is universally accepted under international law that law enforcement officials of one state may not act to enforce their laws in areas within the territorial sovereignty of another state. Therefore, the naval vessels or marine police from one state may not enter the internal waters, territorial waters or archipelagic waters of another state to patrol for pirates or to arrest persons for acts of piracy, regardless of where such acts took place.”

Of course, even if the Arctic Sea was in Cape Verde’s sovereign territory, Russia might well have obtained Cape Verde’s authorization before undertaking the capture. In part II of this post, I’ll take a look at what the legal status of Russian jurisdiction might be under the hypothetical scenario that no such authorization was sought or obtained.

-Susan