The Law of the Sea and the Rome Statute Concept of Territory

[Dr. Michael Kearney is a legal researcher with Al-Haq.]

A March 2020 Amicus Brief submitted by Palestinian human rights organisations, including Al-Haq, to the Pre-Trial Chamber of the International Criminal Court suggested that the Court’s territorial jurisdiction extends to Palestine’s Exclusive Economic Zone. The Exclusive Economic Zone (EEZ), a jurisdictional space derived from the UN Convention on the Law of the Sea, was proclaimed by Palestine in September 2019. In April 2020 the Office of the Prosecutor disagreed with the Amicus contention, arguing that ‘the rights associated with this legal concept—which emanates from another treaty regime—do not amount to “territory” for the purpose of article 12(2)(a) of the Statute’. The Prosecutor asserted that while UNCLOS ‘confers certain rights and functional jurisdiction to the coastal State for particular purposes in such areas, this conferral does not have the effect of extending the scope of the relevant State’s territory but instead only enables the State to exercise its authority outside its territory (i.e., extraterritorially) in certain defined circumstances.’ (para 97) This comment will argue that the Prosecutor’s approach incorrectly diverges from that of the law of the sea jurisprudence, and that the ICC can exercise article 12 territorial jurisdiction over a member state’s EEZ.

UNCLOS and the Exclusive Economic Zone

Articles 55-75 of UNCLOS provide for the EEZ as a jurisdictional zone distinct from the sovereign area of the coastal state’s territorial waters or the regime of the high seas. Article 58.1 UNCLOS guarantees the right of all sates to exercise high seas freedoms in this Zone to the extent that they are ‘internationally lawful uses of the sea related to these freedoms’. Article 56 provides that:   

1. ‘In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, […] and with regard to other activities for the economic exploitation and exploration of the zone, […] (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures […] (ii) marine scientific research; (iii) the protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention.

That UNCLOS can accommodate other legal regimes not explicitly acknowledged in the treaty is not controversial. Stuart Kaye for example, by reference to the fact that the freedoms of the high seas are subject to the conditions set down in UNCLOS ‘and other rules of international law’, states that Article 87.1, ‘makes it clear that the LOSC is not intended to be the only source of law in relation to the use of the high seas or EEZ.’ (p 352)

Law of the Sea Jurisprudence

The jurisprudence of the International Tribunal on the Law of the Sea illustrates that other rules of international law have been held to be applicable when considering how costal states may act within the EEZ, particularly when faced with gaps in UNCLOS. In the ‘Saiga 2’ Judgment, ITLOS accepted the principle that coastal states may be justified in extending the exercise of their jurisdiction in the EEZ beyond the specific instances codified by UNCLOS, ruling that ‘the “other rules of international law” which a coastal State is entitled to apply in the exclusive economic zone are those which are not incompatible with Part V of the Convention’. (para 131)

In a separate opinion, Judge Vukas stated that ‘Article 59 of the Convention itself is a confirmation of the awareness of States participating in UNCLOS III that the specific legal régime they have established has not attributed all possible rights and jurisdiction to the coastal States or to other States. Therefore, not only in respect of fishing vessels, but also of other types of ships or specific situations in which they can find themselves at sea, new rules may be established not only through the practice of States, but also through other sources of international law.’ (para 21)

Certain unattributed rights were further identified in the ‘Arctic Sunrise’ Arbitration, in the context of the boarding of a Greenpeace vessel in Russia’s EEZ. The Tribunal held that it could ‘have regard to the extent necessary to rules of customary international law, including international human rights standards, not incompatible with the Convention, in order to assist in the interpretation and application of the Convention’s provisions that authorise the arrest or detention of a vessel and persons.’ (para 198) The Netherlands had conceded ‘that a coastal State may intervene to prevent or end protest actions in the EEZ’ (para 325) and in reflecting as to which manifestations of protest could reasonably be considered as constituting an interference with the exercise of coastal states’ sovereign rights, the Tribunal held ‘that it would be reasonable for a coastal State to act to prevent: (i) violations of its laws adopted in conformity with the Convention; (ii) dangerous situations that can result in injuries to persons and damage to equipment and installations; (iii) negative environmental consequences […]; and (iv) delay or interruption in essential operations. All of these are legitimate interests of coastal States.’ (para 327)

In the light of the Artic Sunrise and Saiga 2 reasoning, it is inconceivable that such protest actions fall within the scope of the coastal state’s jurisdiction in its EEZ, yet the perpetration of Rome Statute crimes should be considered as definitively excluded. The coastal state’s criminal jurisdiction is also at issue in the ‘Enrica Lexie’ proceedings before ITLOS. This concerns a 2012 incident where Italian marines on board an Italian oil tanker shot and killed Indian fishermen in India’s EEZ. The Tribunal’s 2015 order for provisional measures did not clearly address the question of EEZ jurisdiction, but several dissenting opinions, notably Judges Ndiaye, Lucky, and Bouguetaia, recognising UNCLOS’s silence as to criminality in the EEZ, held it to be practically self-evident that India could exercise criminal jurisdiction in the Zone. Similar sentiment can also be found in the various opinions appended to the Order for provisional measures in the ongoing “San Padre Pio” proceedings.

UNCLOS, and the jurisprudence on the law of the sea, though forthright in asserting that the specific sovereign rights and jurisdictional powers of coastal states in the EEZ are limited by the terms of the Convention, is equally clear that when glaring lacunae arise, UNCLOS adapts so as to be compatible with broader international law. As such there is no standing to claims that UNCLOS inevitably prevents coastal states from exercising jurisdiction over Rome Statute crimes within their Exclusive Economic Zones.

What further marks the Rome Statute question apart from previous considerations of the coastal state’s jurisdiction in the EEZ, is that Article 59 works on the assumption of mutually exclusive interests, whether those of the coastal state, or of all states. In exercising Rome Statute jurisdiction over the EEZ these interests are aligned, such that the coastal state and the international community are not in conflict, but rather that the coastal state is giving effect to the purported vision of the international community.

The ICC Prosecutor’s Unduly Restrictive Reading of Territory

In 2019 the OTP received a communication alleging the perpetration of crimes against humanity within the Philippines’ exclusive economic zone and continental shelf. The Office concluded ‘that a State’s EEZ (and continental shelf) cannot be considered to comprise part of its ‘territory’ for the purpose of article 12(2)(a) of the Statute.’ It noted that while the Rome Statute ‘does not provide a definition of the term, it can be concluded that the ‘territory’ of a State, as used in article 12(2)(a), includes those areas under the sovereignty of the State, namely its land mass, internal waters, territorial sea, and the airspace above such areas. Such interpretation of the notion of territory is consistent with the meaning of the term under international law.’ (paras 46-7)

The human rights organisations amicus brief, suggesting that ‘there appears to be cause for acknowledging that the scope of the Court’s territorial jurisdiction be properly understood as encompassing also the EEZ and the Continental Shelf’, noted its concern ‘with wide ranging human rights violations and potential international crimes connected with land closure and naval ‘blockade’ in the occupied Palestinian territory, the harassment and attacks on fisheries workers, and the pillage of natural resources at sea and on land’. It proposed that ‘while the Prosecutor may have been correct in considering the EEZ as being of a quality somewhat distinct from the territory of a coastal state, the UNCLOS does not exist in isolation, and its terms do not of necessity preclude the application of either the State or the International Criminal Court’s jurisdiction in this area.’ (paras 71-2)

The Prosecutor asked that the request ‘to rule that Palestine’s territory also encompasses the area designated as an “Exclusive Economic Zone”’ be dismissed’, and reiterated the position that ‘the rights associated with this legal concept—which emanates from another treaty regime—do not amount to “territory” for the purpose of article 12(2)(a) of the Statute’. It further restated that ‘While UNCLOS confers certain rights and functional jurisdiction to the coastal State for particular purposes in such areas, this conferral does not have the effect of extending the scope of the relevant State’s territory but instead only enables the State to exercise its authority outside its territory (i.e., extraterritorially) in certain defined circumstances’ and as such ‘criminal conduct which takes place in the EEZ and continental shelf is in principle outside of the territory of a Coastal State and as such, is not encompassed under article 12(2)(a) of the Statute.’ (paras 97-8)

Of key significance in this exchange is the distinction between the human rights organisations’ amicus which focused on territorial jurisdiction, and the Prosecutor’s conception of territorial sovereignty. In explaining ‘territory’ for the purpose of article 12, the Prosecutor relies on the 1928 Island of Palmas decision, that ‘sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular state’, to support the conclusion that ‘State territory refers to geographic areas under the sovereign power of a State – i.e., the areas over which a State exercises exclusive and complete authority’. (para 48)

In reducing jurisdiction to ‘authority’, and in relying upon a pre-UN Charter conception of sovereignty, the Prosecutor’s position is at odds with its own philosophy in constructing its jurisdictional requests in the Myanmar and Palestine Situations. For example, in the Myanmar Article 19 Request, the Office noted the need for ‘a “move beyond our traditional notions of Westphalia”— i.e., jurisdiction solely rooted in a 17th century concept of sovereign territory’. (para 42) Similarly with regards the Situation in Palestine, and in reflecting on the Rome Statute’s object and purpose, the Prosecutor emphasised that ‘Notwithstanding its differences with human rights treaties, the Rome Statute is a “special type of multilateral treaty” that “goes beyond protection of sovereignty and state interests”’. (para 58)

There appears to be a tension, if not contradiction, between the Prosecutor’s general approach to territorial jurisdiction, and the specific manner by which the office has approached the question of territory and jurisdiction over the EEZ. A further example of this disparity can be seen in how, when building an argument for the acknowledgment of objective territorial jurisdiction in the Myanmar Situation, the Office noted approvingly that ‘in recent years, Italy has routinely exercised jurisdiction over crimes committed against migrants on the high seas, including on charges such as conspiracy to commit murder and facilitating illegal immigration.’ (para 41)

That the Prosecutor’s reading of territory as sovereignty rather than territory as jurisdiction is an unduly restrictive approach is accentuated by the decisions of the Pre-Trial Chamber in the Situation in Myanmar. In September 2018 the Pre-Trial Chamber approvingly cited the SS Lotus decision of 1927: ‘In general, the Permanent Court of International Justice has found that “[t]he territoriality of criminal law […] is not an absolute principle of international law and by no means coincides with territorial sovereignty”. (para 66)

In November 2019 the Chamber affirmed that ‘Customary international law does not prevent States from asserting jurisdiction over acts that took place outside their territory on the basis of the territoriality principle’, (para 56), holding that ‘under customary international law, States are free to assert territorial criminal jurisdiction, even if part of the criminal conduct takes place outside its territory, as long as there is a link with their territory. Second, States have a relatively wide margin of discretion to define the nature of this link.’ (para 58).

Summary

In interpreting article 12 of the Rome Statute through the lens of the object and purpose of the treaty, the Pre-Trial Chamber has affirmed that ‘the drafters of the Statute intended to allow the Court to exercise its jurisdiction pursuant to article 12(2)(a) of the Statute in the same circumstances in which States Parties would be allowed to assert jurisdiction over such crimes under their legal systems, within the confines imposed by international law and the Statute.’ (para 70) From the law of the sea jurisprudence, in the cases of Saiga and Artic Sunrise, as well as the dissents from Enrica Lexie, we find compelling authority for the position that a coastal state’s territorial criminal jurisdiction can extend to the EEZ, so long as due regard is had to the rights of all states with regard freedom of navigation and the freedoms of the high seas, and so far as the exercise of that jurisdiction is not incompatible with the object and purpose of UNCLOS. As such the Prosecutor’s reliance on territory-as-sovereignty so as to exclude the application of Rome Statute jurisdiction to the EEZ appears untenable.