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.

The Senkaku Islands, Pt. I: UNCLOS, the EEZ, and the Conflict Between Land- and Sea-Based Sovereignty Regimes

In the East China Sea, north off the coast of Taiwan and south off the coast of Okinawa, there exists an island chain consisting of five small islets, and three smaller rocks. These islands — known as the Senkaku Islands in Japan, the Diaoyu Islands in China, and the Diaoyutai Islands by Taiwan — are the subject of a longstanding territorial dispute between those three states, and in recent months the dispute has become heated once again. military and diplomatic sparring over the islands has resumed once again.

China claims the islands are part of its sovereign territory, having been wrongfully stolen by Japanese military expansions in the late 19th century. Japan, in turn, claims that it is the rightful sovereign of the Senkakus, alleging that the islands were terra nullius until 1895, when Japan incorporated the islets by cabinet decision. Japan further asserts sovereign title to the islands owing to China’s failure to object to Japan’s claims of sovereignty for over seventy years, until China first raised a competing claim to the islands in 1970.

Not coincidentally, China’s first assertions of sovereignty over the Senkakus were made just one year after seismic surveys of the sea floor surrounding the islands had discovered the existence of significant oil and gas reserves. But while the discovery of natural resources in the East China Sea precipitated the ongoing territorial dispute between China and Japan, during this same time period there was another event occurring that would prove equally responsible: the development of modern international law of the sea. As result, the Senkaku Islands became a massively valuable commodity, and a previously dormant territorial dispute has become a flashpoint. Both Japan and China argue that, under international law, they are the rightful owners of the land.

The problem is, despite all the diplomatic strife and threats of military action, no one actually wants the Senkaku Islands.

And why would they? Seriously, look at these things:

Hardly anything there to speak of — and these are the three of the four biggest islets in the Senkaku Islands. In all, the island chain is nothing more than a barren 1,700 acres of sand, scrub, and rock. A few endangered moles live there, along with some feral goats, but the Senkakus are not suitable for human habitation. It is debatable whether any fresh water sources even exist on the islands, and previous attempts at establishing industry on Uotsuri, the largest islet, have all ended in failure.

The above-water portions of the Senkaku Islands are of negligible value. But the islands’ worthlessness is irrelevant to the intensity of the dispute over their ownership. China and Japan do not seek possession of the Senkakus because they wish to possess the islands, but because possession of the Senkakus is a mechanism for obtaining possession over the surrounding sea. In other words: possession of the Senkakus is a means, not an end.

In previous eras, when competing claims of sovereignty over a territory could not be determined by reference to either treaties or to customary international law, there did remain one additional mechanism that states could resort to for conclusively resolving the question of ownership. That particular mechanism, however, has now been expressly prohibited by Article 2 of the UN charter. With sovereignty-by-conquest no longer a sanctioned means of dispute resolution, and when the states involved in the dispute have no interest in submitting the matter to an adjudicative body, the result is an effective stalemate. In a fruitless attempt to resolve the conflict by reference to international law, Japan and China have now been reduced to squabbling over ancient maps and conflicting historical accounts.

This is the current status of the Senkaku Islands, and of numerous other disputed island territories off the coast of China and Japan. Japan and China can each point to various 19th century maps or little-noticed governmental decrees to bolster their claims of sovereignty. But based on the existing historical record concerning the occupation and use of the Senkaku Islands, neither China nor Japan can convincingly demonstrate a superior claim.

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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

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

Temporarily Out of Fashion: Somalian Piracy. Temporarily In Fashion: Viking Piracy.

I realized this morning, to my intense disappoint, that International Talk Like a Pirate Day was yesterday, and I completely missed it. This won’t happen again, I’ve already programmed it into my phone so there’s no chance of me missing it next year. But to make up for my laxness, I’m declaring today International Pirate Blogging Day and celebrating that by giving an update on the somewhat under-reported story of the Arctic Sea. The Arctic Sea was captured by pirates last July before going MIA on an ocean voyage from Sweden to Africa, and the theories surrounding the whole incident sound suspiciously like the plot of Dan Brown novel.

The (roughly known) facts: The Arctic Sea is a Maltese-flagged ship, owned by a Finnish company, which is in turn owned and run by a Russian citizen living in Finland. which when the hijacking occurred had left port from Finland bound for Algeria, with a cargo of timber (owned by a separate company also controlled by the same Russian citizen who owned the ship) worth $1.7 million on board. Around July 24, the Arctic Sea was then captured off the coast of the lawless, warlord controlled territory of Sweden, but this was not reported publicly. Contact was lost with the ship around July 31, during which time the ship chugged down through the English Channel, around the Iberian peninsula, and then remained missing for a number of weeks. On August 17th, Russia successfully recaptured the ship off the coast of Africa near the island nation of Cape Verde. There were no reported injuries. The eight (ten?) hijackers are apparently ethnic Russians, who speak English, and are either stateless or hold passports to Russia, Latvia or Estonia. As an additional point of confusion, when captured off of Africa the ship’s captain “unexpectedly claimed” to be the North Korean ship Congdin 2, en route from Cuba to Sierra Leone — but as far as I can gather, essentially no one has any idea what the hell that was all about.

Russia announced it would be taking the ship back to a Russian port. Instead, the ship next turned up at the Canary Islands, where it remains in limbo as Spain continues to refuse entry to the Arctic Sea. Malta, where the ship is flagged, has been involved in the negotiations but apparently wants to wash its hands of the whole thing. Russia is less than pleased, and announced that:

“The decision of the Maltese authorities has puzzled the Russian Investigative Committee. Moreover, it contradicts international maritime law. The Maltese action makes the ship docking in the Spanish port of Las Palmas problematic. This also creates problems for the ship’s crew because they are running out of fuel and drinking water[.]”

Far as I can make out, the ship’s still bobbing about in the waters off of Las Palmas, but transfer of the ship to the original owners is being organized. Meanwhile, all the pirates are back in Russia and are currently facing prosecution.

The conspiracy theories: There are dozens of theories out there, but the major claim being made seems to be this whole deal was really about “Russian mobsters selling missiles and/or air defense shields to Iran.” The most convoluted of these tales involve Israel’s Mossad being responsible for the diversion of the ship’s trip to Iran:

Another theory is that Mossad concocted the alleged hijacking by setting up a criminal gang, who were unlikely to have known anything about a secret cargo, instead blocking the route to Iran by the mounting media interest.

“Once the news of the hijack broke, the game was up for the arms dealers. The Russians had to act,” said a former Russian army officer. “That’s why I don’t rule out Mossad being behind the hijacking. It stopped the shipment and gave the Kremlin a way out so that it can now claim it mounted a brilliant rescue mission.”

One serious problem for fans of this theory: Why the heck would Israel entrust the recapture of an arms smuggling ship to a bunch of drug addicted bar brawlers? (Additional note to the hijackers: Fire your lawyers. No one believes y’all were members of a stranded environmentalist group trying to “document environmental abuses.” If that’s the best cover story you’ve got, you’re in big trouble.)

And while it seems like something fishy was going on, given the extreme shortage of reliable reporting out there, its hard to tell right now if it’s anything more sinister than a bunch of deluded Russians becoming the Keystone Kops of the piracy world. Because this was the most incredibly awkward ship hijacking the world has seen since Blackbeard was a teenager. The only thing clear about this whole mess is that the pirates were basically a bunch of dogs chasing a car, and they had no idea what to do with the ship once they actually captured it. So they just decided to cruise it down to Cape Verde for the heck of it.

However, combined with recent diplomatic trips by Israel’s president to Russia to discuss Iranian relations the day after the Arctic Sea was found, as well as the cancellation of the U.S. missile shield plans in Poland and the Czech Republic, there’s enough fodder there for the conspiracy theorists to last them for months.

-Susan