Professor Stefan Talmon of the University of Bonn and St. Anne’s College in Oxford offers one of the first serious attempts to defend China’s position on the UNCLOS arbitration brought by the Philippines.  In an essay published by the Global Times, China’s hawkish state-owned daily paper, Professor Talmon argues that all of the Philippines’ claims against China fall outside of the jurisdiction of the UNCLOS arbitral tribunal.

For example, the claim that China’s maritime claims in the South China Sea based on the so-called nine-dash line are invalid, the claim that China has unlawfully claimed maritime entitlements beyond 12 nautical miles around certain insular features and has prevented Philippine vessels from fishing in the waters adjacent to those features, and the claim that China has unlawfully interfered with the exercise by the Philippines of its right to navigation and other rights cannot be decided without touching upon China’s claim to historic title and rights within the area of the nine-dash line.

In addition, any measures taken by China against the Philippine vessels may also be subject to the “law enforcement activities” exception with regard to fisheries matters or may be excluded as an exercise of China’s sovereign rights and jurisdiction provided by UNCLOS.

The claim that China unlawfully occupies certain low-tide elevations in the South China Sea cannot be addressed without dealing with the question of sovereignty or other rights over these insular land territories.

Finally, declarations that certain submerged features form part of the continental shelf of the Philippines, that China has unlawfully exploited the living and non-living resources in the Philippines’ exclusive economic zone and continental shelf, and that China has interfered with the Philippines’ right to navigation and other rights in areas within and beyond 200 nautical miles of the Philippines cannot be made without engaging in sea boundary delimitations.

I have to admit I am not very persuaded by this analysis. In Prof. Talmon’s defense, the essay is very short and not an attempt to provide a deep legal analysis of the problem.  But the idea that any challenge to the nine-dash line is excluded from UNCLOS arbitration is hardly obvious to me, since the basis of China’s nine-dash line is very murky anyway. It is not an historic bay.  I suppose it could be an “historic title” within the meaning of Article 298, but that is hardly obvious. Under Prof. Talmon’s reading, any claim of historic title, even if it undermines all of the other principles of UNCLOS, are outside the jurisdiction of the UNCLOS tribunal.

Similarly, when the Philippines argues that something is a “rock” and not an “island” under the definition of UNCLOS, I don’t see how that requires a sea boundary determination?

Most importantly, I can’t see how Prof. Talmon can avoid the question of why China is not even bothering to make these jurisdictional arguments in the UNCLOS tribunal. It is an oddly disrespectful move, to say the least, for China to essentially boycott the tribunal. Does Prof. Talmon think the Philippines case is so weak that ignoring the arbitration is justified?

Still, it is worth exploring these questions, since the arbitral tribunal will likely do so. I would hope Prof. Talmon has a longer version of his views posted somewhere, and if not, he is welcome to do so here at any time!

In my previous post, I expressed my skepticism that the OTP will open a formal investigation into the situation — loosely defined — involving Israel’s attack on the MV Mavi Marmara. In this post, I want to raise two issues concerning Comoros’ referral that I find particularly troubling.

First, why is Comoros being represented by Turkish lawyers, the Elmadag Law Firm Istanbul? There is nothing wrong with a state outsourcing its legal work, of course, and most of the victims of the attack on the MV Mavi Marmara were Turkish. But if the referral is really being driven by Comoros, you’d think the government would be relying on lawyers in its Ministry of Justice — or at least on a Comorian law firm. Instead, the Comoros hired a foreign law firm that has already unsuccessfully requested, on behalf of victims and a Turkish NGO, the OTP to investigate the attack on the flotilla. (See para. 9 of the referral.) That suggests, in my view, that this new request is a “state referral” in name only — a smart litigation strategy, but a curious one.

Second, why now? The attack on the flotilla took place nearly three years ago, yet Comoros is only now referring the situation to the Court. The timing seems particularly curious given that Israel and Turkey appear to be making genuine diplomatic progress in resolving the Mavi Marmara crisis. Just a few weeks ago, Haaretz reported that Israel has agreed to pay “as much as tens of millions of dollars” in compensation to the Turkish citizens wounded and killed during the attack. This latest effort to get the ICC to investigate will not only fail, it could well harm negotiations between Israel and Turkey — especially as one of the points that apparently remains to be resolved is whether Turkey is willing to immunize the IDF soldiers involved in the attack. Indeed, a cynic might suggest that this new referral is designed to undermine those negotiations.

This referral clearly puts Fatou Bensouda in a difficult situation. My hope is that she will conclude her preliminary examination quickly and will release a detailed explain of why (I predict) the OTP is not opening a formal investigation into the attack on the flotilla. Doing so would provide Bensouda with an opportunity to affirm the Court’s potential jurisdiction over the attack — Article 12(2) means what it says about a ship qualifying as a state’s territory, although I assume the drafters of the article assumed that the OTP would investigate crimes committed at sea only as part of a larger situation — while explaining why it would not be appropriate for the OTP to investigate only one small aspect, and only one side, of the Israel-Palestine conflict.

UPDATE: Make sure to read excellent posts on the referral by Bill Schabas and Dapo Akande.

This is very interesting. The Union of the Comoros, a state party to the Rome Statute since 2002, has formally referred Israel’s attack on the flotilla that included the MV Mavi Marmara to the ICC. The question I want to address in this post is whether the Court has jurisdiction over the flotilla attack. I think it’s clear that it does — although there is at least one important wrinkle in the analysis. But I also think it’s exceedingly unlikely the OPT will open a formal investigation into the attack.

In terms of jurisdiction, the critical provision in the Rome Statute is Art. 12, “Preconditions to Jurisdiction.” Article 12(2) provides as follows (emphasis mine):

In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a)     The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

The bolded text is critical. The Court has jurisdiction over an international crime only if that crime was committed by a national of a state party to the Rome Statute or on the territory of a state party. Art. 12(a) makes clear, however, that a vessel registered to a state party qualifies as the territory of that state. According to the referral, the MV Mavi Marmara was registered to Comoros at the time of the attack, 31 May 2010. (Comoros provides documentation of registration in an appendix to its referral that is not available on the ICC website.) For purposes of jurisdiction, therefore, the MV Mavi Marmara does indeed qualify as Comoros territory. And that means Art. 12 is satisfied.

The wrinkle in the analysis is whether the attack on the MV Mavi Marmara qualifies as a “situation.” States are permitted to refer situations to the Court, not specific crimes. Here is Art. 14(1):

A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

Is Comoros referring a situation to the Court? All of the situations currently being investigated by the OTP — Kenya, Libya, Cote D’Ivoire, etc. — are much broader than the situation being referred by Comoros. That said, the referral is not limited solely to the attack on the MV Mavi Marmara. As Comoros’ supporting documentation notes, one other ship in the attacked flotilla, the MV Sofia, was registered to a state party — Greece. Moreover, the referral suggests that Israel’s June 6 attack on the MV Rachel Corrie, which was registered to Cambodia, a state party, should also be included in the overall situation. (The referral tries to link the attack on the flotilla to the situation in Gaza, suggesting that the attack would be part of any situation referred to the Court by Palestine. That’s clever but irrelevant, at least at this point, because Palestine has not yet ratified the Rome Statute.)

In terms of the Rome Statute’s legal requirements, I think that Comoros has indeed referred a situation to the Court. Article 14(1) speaks of situations in which “one or more crimes… appear to have been committed,” suggesting that even one crime can, in the right circumstances, qualify as a situation. (An attack with a nuclear or chemical weapon, for example.) The limited scope of the situation being referred by Comoros, therefore, should not legally disqualify the referral.

In short, the ICC does indeed have jurisdiction over the attack on the flotilla (and the later attack on the MV Rachel Corrie), so the OTP would be well within its rights to open a formal investigation into the attack. The real question is whether the OTP will open an investigation. A full answer is beyond the scope of this post, but I think it’s exceedingly unlikely. Although the limited scope of the referred situation is not legally disqualifying, I think it significantly reduces the situation’s overall gravity. To begin with, it is not clear whether any international crimes were committed on the MV Sofia or the MV Rachel Corrie (readers should feel free to weigh in), so the referred “situation” may, in practice, be limited to crimes allegedly committed on the MV Mavi Marmara. I don’t want to minimize the tragedy of nine civilian deaths, and I am no fan of determining gravity by simply counting victims, but I think the OTP would have a difficult time justifying a decision to prioritize the flotilla attack over many of the other situations it is considering, such as Colombia, Georgia, or Afghanistan.

Moreover, and more fundamentally, it does not seem sensible for the OTP to investigate one isolated component of the much larger conflict between Israel and Palestine. If the OTP ever does investigate that conflict — which, as I’ve discussed before, I don’t think it should — it needs to address all of the potential crimes, both Israeli and Palestinian. And that, I think, is the fatal flaw in the Comoros referral: it is essentially asking the OTP to investigate crimes committed by only one side of the conflict, Israel. Even if Israel’s account of the attack on the flotilla is correct and the IDF killed the civilians in self-defense, the ICC would still not have jurisdiction over the civilians’ actions — it is not a war crime to attack a soldier (though it could, of course, be a domestic crime).

Finally, a plea to the media: please do not overstate the importance of the OTP’s “decision” to open a preliminary examination into the attack on the flotilla. As the ICC’s press release notes, the OTP is required to conduct such an examination into every state referral, regardless of merit. I have no doubt that the OTP takes state referrals more seriously than referrals from individuals and human-rights groups. But that does not mean, nor does it even suggest, that the OTP will decide to open a formal investigation into the flotilla attack. Indeed, for all the reasons mentioned in this post, I think that is exceedingly unlikely.

The WSJ Saturday edition has a long review essay by distinguished historian Ian Buruma providing some historical perspective on the close to hot Chinese-Japanese conflict over the Senkaku Islands. It is a fascinating essay, and I was particularly struck by his argument that the Senkaku issue was essentially ignored by Mao Zedong and Deng Xiaopoing, whereas today’s comparatively weaker Chinese leaders cannot afford to downplay it.

As a historian, Burama sees this conflict as driven almost entirely by nationalist forces in both China and Japan (but mostly China) for contemporary political reasons rather than for deepseated historical animosities.  This is a view that is worth keeping in mind.

But I have one quibble with Buruma’s narrative.  He first describes the Senkakus as part of the territorial booty acquired in Japan’s 1895 military victory over China.  But this is not the official Japanese view of how Japan acquired sovereignty over the Senkakus because everything that was acquired in 1895 (like Taiwan) was returned to China in the post-World War II settlement. Japan’s view is that the Senkakus had perhaps had been part of Okinawa, but at any rate, had never been part of China pre-1895.

Buruma later describes the Senkakus as part of Okinawa that was returned to Japan in 1971.  But now he adopts the Japanese view of the legal position, and rejects China’s view that the Senkakus were never part of Okinawa.  But the U.S. acknowledged that there was a difference between the two island entities when it returned both in 1971 to Japan.

This is not really to criticize Buruma, whose writing I admire.  Rather, it is to highlight just how confusing the legal background to this territorial dispute is. Even historians can’t keep the positions straight. How will we ever expect the politicians to do so.

An article in China’s leading state-run paper, the People’s Daily, suggesting that the time may be ripe to reopen the question of Japanese sovereignty over Okinawa has already sparked sharp reactions.  The WSJ’s blog on China picked up the story, as did this Business Insider post, headlined: “China Now Says It May Own Okinawa, Too.” Other even more lurid headlines: “China Demands Japan Cede Sovereignty Over U.S. Military Base Okinawa.” have popped up all over the internet.  As there is a massive U.S. military presence on Okinawa, this issue will likely draw more attention here in the States.  The idea had already been mooted last July, as this article notes. The Chinese foreign ministry has already been asked about this, and failed to clarify matters much, leading to more heated reactions in Japan.

I think all of this might be a bit of an overreaction (perhaps an overreaction that the Chinese actually were hoping for).

The argument about Okinawa was raised as part of the larger argument about the sovereignty over the much disputed Senkaku/Diaoyu Islands in the East China Sea.  Okinawa, also known as the largest of the Ryukyu Islands, was historically treated as a vassal kingdom by both China and Japan.  Its status, like that of the nearby Diaoyu Islands, was never entirely settled during much of the nineteenth century.

The Okinawa discussion was part of the article’s attempt to rebut the Japanese claim that the Diaoyu/Senkaku islands were historically part of the Okinawa/Ryukyu kingdom, and since Okinawa is now part of Japan, the Diaoyu/Senkaku are as well.  The article’s position is that the Diaoyu/Senkakus were always considered part of Taiwan, and hence part of China.

To fully push back on the Okinawa point, the article raises questions about the Japanese claim to Okinawa.  This is not exactly new, since Okinawan independence activists have raised the same arguments. I think Okinawa is today similar to Puerto Rico, and it is largely a self-determination question rather than a historical title question.

But what makes everyone nervous, however, is the idea that Okinawa’s previous status as a vassal state to the Chinese Empire gives China some sovereignty claims to Okinawa as well. This idea is deeply troubling, since at various times Korea, Vietnam, and other states have arguably had that relationship with China.  It has little basis in contemporary international law, as far as I can tell.  So I think this idea needs to be firmly rejected, and I have little doubt that countries like Korea, Vietnam, etc. are going reject it.

But the article is not really focused on establishing the vassal state theory of sovereignty (Now that would be quite an article). Most of the article is about the Diaoyu/Senkakus.  The Okinawa argument is only meant to further weaken Japan’s arguments for sovereignty over the Diaoyu/Senkakus.  If Japanese sovereignty over Okinawa is uncertain or at least less than perfect, than its claim to the Diaoyu/Senkakus is weakened as well.  But the article doesn’t flesh out, nor does it need to, actually establish China’s own claim to Okinawa in order to question Japan’s claim.

I don’t think the Chinese government will be making any moves on Okinawa any time soon. But it is useful for the Chinese to float such ideas, so that they can gracefully back down and “settle” for the Diaoyu/Senkakus one day.  A dangerous game to play, unfortunately, and one that may backfire if it continues to foster anti-Chinese Japanese nationalism.

Professor Craig Allen of University of Washington alerts me to this excerpt from the press conference held yesterday at China’s Ministry of Foreign Affairs.  It is the first time, as far as I know, that a Chinese government spokesman has offered a detailed explanation of China’s legal position in the Philippines arbitration.   It still doesn’t fully make sense, or at least it is still not fully responsive, but it is something at least.  China’s explanation goes something like this.

1. It is the Philippines that is illegally occupying various islands in the South China Sea, not China.

2. Although the Philippines claims it is not seeking to contest sovereignty in the arbitration, it has consistently said it is seeking a “durable solution” to dispute.  This is “self contradictory.”

3. The principle of the “Land Dominates the Sea” means that all of the Philippines’ claims are essentially maritime delimitation claims that “inevitably” involve resolving questions of territorial sovereignty over various islands and reefs. But these are the questions excluded from UNCLOS arbitration. Hence, China’s rejection of arbitration has a “a solid basis in international law.”

4. Every nation in the region, including China and the Philippines, has committed to the Declaration of the Code of Conduct for the South China Sea, which obligates them to resolve disputes on territorial and maritime rights through bilateral negotiations.

Let’s toss out points 1 and 4 since they don’t really change much of the legal analysis on whether China’s rejection of arbitration has a “solid basis in international law.”

The really interesting parts of the statements are in points 2 and 3.  To China, the Philippines is misleading everyone by pretending to be interested in the Law of the Sea when they are really trying to advance their sovereignty claims. I am not sure that “durable solution” necessarily means “resolving sovereignty claims” but I suppose it is plausible.

The most important point is Number 3, which is that the disputes over the island/rock/reef distinction or the Nine Dash Line are so inextricably linked with sovereignty that they cannot be separated.

This is really what a jurisdictional challenge would look like, if China argued its case.  I think this is the most plausible part of China’s argument, but it is not exactly a slam dunk.  First of all, China’s invocation of the “Land Dominates the Sea” doesn’t help their argument much here since the infamous Nine Dash Line doesn’t seem to flow from any land claims, or at least China has usually based the Nine Dash Line on “historic rights,” not land.

In any event, the Philippines is not rejecting the “Land Dominates the Sea” principle.  They are just arguing that the “land” China is relying on is a rock, not an island within the meaning of UNCLOS Art. 121(3), and hence cannot grant China a 12 mile territorial sea even if China did have sovereignty.  Since some of these rocks/islands fall within the Philippines Exclusive Economic Zone, this is not a sovereignty issue but a UNCLOS issue.  I am not sure that the Philippines is right about this, but they certainly have a good case.

It is also worth noting that the Chinese statement is conspicuously silent on China’s obligation under UNCLOS to at least allow a UNCLOS arbitration tribunal to determine whether it has jurisdiction (UNCLOS Art. 288(4)).  China’s statement simply assumes that the jurisdictional issue is clear, and it has no further obligations.  As almost any lawyer could tell you, jurisdictional issues are almost never clear, and even when they are, you have an obligation to go to court/arbitration to resolve them.

So China is slowly beginning to engage on this issue, and they are making a bit of progress. Still, they need better talking points. (And they need to be careful invoking the phrases like the “Land Dominates the Sea,” that could come back to hurt them later.)

Yesterday, President of the International Tribunal for the Law of the Sea, Shunji Yanai, announced the appointment of the final three members of the Annex VII UNCLOS tribunal.

International Tribunal on the Law of the Sea (ITLOS) President Shunji Yanai on April 24 transmitted a letter to Philippine Solicitor General Francis Jardeleza, head of the Philippine legal team on the arbitration case, informing Manila of the appointment of Mr. Jean-Pierre Cot (France), Mr. Chris Pinto (Sri Lanka), and Mr. Alfred Soons (The Netherlands.)

Yanai earlier appointed Mr. Stanislaw Pawlak (Poland) as the second member of the tribunal who will represent China in the proceedings. The Philippines, on the other hand, nominated Mr. Rudiger Wolfrum (Germany) to the tribunal.

I have to admit I am a bit surprised that President Yanai did not appoint any arbitrators from East Asia or Southeast Asia. As it turns out, the Annex VII tribunal will have four Europeans, three of whom are currently serving as judges on ITLOS.  Chris Pinto of Sri Lanka will be the only member of the tribunal from Asia (broadly defined).  I would have appointed a Chinese national and a Philippines national, which would be in keeping with the tradition of many other interstate arbitrations.

It turns out that I had the opportunity to meet Philippines Solicitor General Jardeleza, who is spearheading the Philippines arbitration team, just yesterday at an event sponsored by the U.S.-Asia Law Institute at New York University.  I got some great insights in to the strategy behind the Philippines’ decision to pursue arbitration, which I hope to share in a later post.  But for now we can say that the arbitration is going to happen, for sure.

If China continues to ignore the arbitration, it is worth keeping in mind that UNCLOS actually has a provision guiding tribunals in this situation.

Article 9 Default of appearance

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

(Emphasis Added).  So the tribunal has a legal duty to consider the jurisdictional issue seriously and to ensure that the Philippines’ claim is well-founded.  No “default” judgments can be issued here (Nor would that be in the interest of the Philippines anyway).

The Asahi Shimbun is running a couple of interesting features on the International Court of Justice and Japan’s relationship with it.  One essay features interviews with Japan’s current and former members of the ICJ: President Owada and former vice-president Oda.  The other explores what might happen if Japan were to somehow send its disputes with China and Korea to the ICJ.

“Since we are already facing such an explosive situation, it would probably be good for Japan to take action and suggest that China file a claim–and then respond in court,” said Yoshio Otani, 73, an honorary professor at Hitotsubashi University.

To date, however, the Chinese side has made no move to file a claim unilaterally.

“The stances of both countries with regard to the Diaoyu (Senkaku) Islands are too far apart to be able to bring the problem to a third party, including to the ICJ, for resolution,” said Xinjun Zhang, 45, an associate professor at Tsinghua University in Beijing. “The issue of territory, even domestically, is intertwined with ethnic pride. It is a very sensitive matter. Currently, it would be better to think about how to manage the issue rather than try to resolve it.”

I am not sure I agree with Prof. Zhang that the stances of the two countries are “too far apart” to go to a third party, since that is kind of always the case in these kinds of disputes.  But I do agree that it is hard to imagine the China-Japan dispute going to the ICJ.

Having said that, it might be smart politics for Japan to announce its willingness to take the Diaoyutai/Senkaku disputes to the ICJ, and put the onus on China to reject the offer. Japan is already becoming ICJ-savvy in the upcoming Australia Whaling case (hearing finally scheduled for June), they might feel like the ICJ is a good forum for them.   In our panel last week at ASIL, Stephanie Kleine-Ahlbrandt suggested that that Japan had already privately made such an offer, and had been turned down.  I wonder if it is now time for Japan to go public with this offer.  Then again, maybe it should sit still and wait and see how the Philippines arbitration turns out, since China has not so suffered any serious damage from their non-response to that claim.

Just in case there was any doubt, the Philippines-China arbitration over the South China Sea will go forward.  International Tribunal of the Law of the Sea President Shunji Yanai has appointed a second arbitrator.

The [Philippines] Department of Foreign Affairs (DFA) confirmed on Monday that the Itlos president, Judge Shunji Yanai, appointed Polish Itlos Judge Stanislaw Pawlak to the panel last week, leaving only three more slots to be filled in the tribunal.

Pawlak will join the panel with German Judge Rudiger Wolfrum, the arbiter appointed by the Philippines when it announced its arbitration bid in January.

The Polish judge’s appointment is the first for Yanai, who took on the task of composing the arbitral panel after China announced its rejection of the proceedings.

As I discussed here earlier, China’s refusal to appoint an arbitrator does not in any way divest the arbitral tribunal of jurisdiction under the Annex VII of UNCLOS.  President Yanai now will appoint the remaining three arbitrators, as he would do whether or not China had acted to appoint an arbitrator.

The interesting question is what China will do now.  It seems likely that they will continue to ignore the arbitration and question its propriety.  But China can no longer claim that the arbitration cannot proceed without China’s participation.  This article from the reliably hawkish state-owned Global Times offers a pretty clear-eyed analysis, correctly noting that UNCLOS itself grants the ITLOS arbitral tribunal the power to determine its own jurisdiction, and that UNCLOS also specifies the procedure for appointing arbitrators.  It also notes that China’s position is going to be somewhat more difficult, and that the Philippines is using this legal proceeding to level the playing field somewhat in this maritime dispute.

The nationality of President Shunji Yanai has not gone unnoticed.  As this news broadcast puts it, “Expert Says Nationality of ITLoS President Detrimental to China”.  The broadcast (full of ominous shots of the Japanese flags (interspersed with ominous shots of the U.S. flag since the US is often believed to be behind the Philippines litigation) also notes that Japanese nationals have also acquired other important positions within UNCLOS.  If things start to go south for China in UNCLOS institutions, expect this little factoid about Japan’s nefarious control of UNCLOS institutions to pop up more often in the Chinese media.

China still has the option to show up to contest jurisdiction once the tribunal is constituted. I think they could still do that, and that they would have a plausible case against jurisdiction here. But it is seems that China is committed to its path of rejecting the arbitration. Indeed, if the tribunal finds they have no jurisdiction, China wins.  But if the tribunal rules it can hear the case, expect the denunciations of the Japanese- appointed one-sided illegal tribunal to start flowing.

My previous posts (see here for the most recent) have explained why Judge Kozinski’s opinion in the Sea Shepherd case wrongly considers a political end to be a private end. In this post I want to highlight what is ironic — though not technically incorrect — about Judge Kozinski’s conclusion that Sea Shepherd committed an act of piracy on “the high seas.” That is an essential element of piracy; UNCLOS art. 101, for example, defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed… on the high seas, against another ship.” The high seas, in turn, are defined by art. 86 as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an  archipelagic State.”

The Japanese whaling that Sea Shepherd resisted took place near Antarctica in the Australian Whale Sanctuary (AWS), which was established by John Howard’s conservative Australian government in 1999. Here is a map of the AWS:

Did Sea Shepherd’s acts take place on the “high seas”? Not according to Australia and a number of other states. Australia has long claimed sovereignty over what it calls the Australian Antarctic Territory (AAT), the white part of Antarctica on the map, and it has also consistently claimed sovereignty over the waters adjacent to the AAT, the blue section of the map that stretches around the AAT. Those waters, which are part of Australia’s Exclusive Economic Zone (EEZ), include the AWS. A good history of Australia’s claim can be found in this law-review article by David Leary; here is the Australian government’s own statement about the AWS…

Eugene Kontorovich has responded at Volokh Conspiracy to my previous post about politically-motivated acts of violence on the high seas. I invite interested readers to examine for themselves the various documents Eugene and I discuss; in this final post I simply want to correct a fundamental error on Eugene’s part concerning the Harvard Draft Convention on Piracy — an error that goes to the very heart of our debate. Both of our arguments depend on the Draft Convention and its commentary, because — as Eugene points out — the ILC Commentary to the Law of the Sea Treaty specifically notes that the Commission “in general” agreed with the Draft Convention. The proper interpretation of the Draft Convention, therefore, is of critical importance to the proper interpretation of the Law of the Sea Treaty.

Here is what Eugene says about whether “private ends” include acts of violence on the high seas that are politically motivated:

The Harvard Draft supports the lack of any subjective, motive-based inquiry. Here is exactly what it says in its commentary on the “private ends” part of the definition of piracy:

[A]lthough it is true that the typical pirate of fiction and tradition was an indiscriminative plunderer, expediency and not traditional epithets or the fancy of traditional concepts should direct the definition of the common jurisdiction over piracy, and every consideration of certainty in prosecution and of assured protection in places outside the territory of all states argues that the jurisdiction to seize and to punish a robber or a killer for private ends should not depend on whether the offender had by acts or words displayed an intent to plunder or slay only once or oftener, or on whether he intended to attack only the citizens of certain states and their ships and other property, or to prey on the people and commerce of all nations indiscriminately. Such matters of collateral intent of an offender (often uncertain and indistinct) and of his transactions other than those involved in the case at hand, are very unsatisfactory as elements in a basis of state jurisdiction.

On the other hand, the language in the Draft that Prof. Heller says best supports his position does not come from the commentary on “private ends,” or indeed from the definition of piracy at all (contained in Art. 3). Rather, it comes from the commentary on Art. 14, which is not defining, or even discussing piracy at all, but rather the authority of states with traditional jurisdiction to apply non-piracy law.

Eugene’s claim about Articles 3 and 16 (his reference to Article 14 must be a typo) is extremely misleading. It is true that the language on which I rely does not come from Article 3, which defines piracy under international law — the kind of piracy to which universal jurisdiction applies under Article 2 of the Draft Convention, and the kind of piracy that is governed by the substantive provisions in Articles 3-15 of the Draft Convention. But I quote the commentary to Article 16 instead of to Article 3 for a very specific reason: because Article 16 deals with acts that do not qualify as acts of piracy under international law and are thus excluded from universal jurisdiction and the substantive provisions of the Draft Convention.  Here is the text of Article 16 (emphasis mine)…

Both Eugene and Maggie disagree with my claim that politically-motivated acts of violence on the high seas were not traditionally considered piracy under international law, but were instead simply criminal acts that the offended state could prosecute as it saw fit. Here is Eugene (my emphasis; combining two comments):

The rule is clear as both a matter of customary international law and the Law of the Sea Convention. On the latter score, the “private” ends requirement of the UNCLOS Art. 101 (which defines piracy) has to be read in conjunction with Art. 102, which distinguishes between “warship” or “government ship” – which cannot commit piracy while under governmental control and “private” ships, which are the kind that can be pirates. Thus “private” clearly means “non-governmental,” rather than selfish or not selfish.

I would add that the Harvard commentary only seems to make an exception for the classic hard case – rebel warships in an actual belligerency. The International Law Commission seems to endorse that exception in its commentary to the treaty draft, but at the same time seem to exclude merchant vessels not in a belligerent context from an possible immunity.

There are three problems with Eugene’s argument. First, it does not address the League of Nations report, which specifically states that politically-motivated acts do not qualify as piracy. The report adopted a private/political binary, not a private/public one. Second, the Harvard commentary does not make an exception only for “rebel warships in an actual belligerency.” On the contrary, the commentary specifically rejects the idea that the exception applies only to rebel groups that have been recognized as belligerents. Here is the quote from my previous post (emphasis mine)…