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Law of the Sea

The OTP Concludes Israel Is Still Occupying Gaza

by Kevin Jon Heller

As Thomas Escritt has reported for Reuters, the OTP has declined to open a formal investigation into Israel’s attack on the MV Mavi Marmara. I will have much more to say about the decision tomorrow; I agree with the OTP’s conclusion but have serious problems with much of its reasoning. But I thought I’d tease tomorrow’s post by noting that, despite the declination, Israel is going to be very angry at the OTP — because the OTP specifically concludes (as part of its decision to classify the conflict as international) that Israel is still occupying Gaza. Here are the relevant paragraphs:

26. Israel maintains that following the 2005 disengagement, it is no longer an occupying power in Gaza as it does not exercise effective control over the area.

27. However, the prevalent view within the international community is that Israel remains an occupying power in Gaza despite the 2005 disengagement. In general, this view is based on the scope and degree of control that Israel has retained over the territory of Gaza following the 2005 disengagement – including, inter alia, Israel’s exercise of control over border crossings, the territorial sea adjacent to the Gaza Strip, and the airspace of Gaza; its periodic military incursions within Gaza; its enforcement of no-go areas within Gaza near the border where Israeli settlements used to be; and its regulation of the local monetary market based on the Israeli currency and control of taxes and customs duties. The retention of such competences by Israel over the territory of Gaza even after the 2005 disengagement overall supports the conclusion that the authority retained by Israel amounts to effective control.

28. Although it no longer maintains a military presence in Gaza, Israel has not only shown the ability to conduct incursions into Gaza at will, but also expressly reserved the right to do so as required by military necessity. This consideration is potentially significant considering that there is support in international case law for the conclusion that it is not a prerequisite that a State maintain continuous presence in a territory in order to qualify as an occupying power. In particular, the ICTY has held that the law of occupation would also apply to areas where a state possesses “the capacity to send troops within a reasonable time to make the authority of the occupying power felt.” In this respect, it is also noted that the geographic proximity of the Gaza Strip to Israel potentially facilitates the ability of Israel to exercise effective control over the territory, despite the lack of a continuous military presence.

29. Overall, there is a reasonable basis upon which to conclude that Israel continues to be an occupying power in Gaza despite the 2005 disengagement. The Office has therefore proceeded on the basis that the situation in Gaza can be considered within the framework of an international armed conflict in view of the continuing military occupation by Israel.

I’m not certain I agree with this analysis, though the OTP’s conclusion is far from unreasonable. Regardless, let the fireworks begin…

Guest Post: Friction in the Cyprus EEZ: Analyzing Conflicting Claims under the Law of the Sea

by Nikolaos Ioannidis

[Nikolaos A. Ioannidis is a doctoral candidate in Public International Law at the University of Bristol]

Αs of October 20, a Turkish survey vessel, the “Hayreddin Barbaros Pasa”, accompanied by a frigate of the Turkish Navy, has been carrying out seismic surveys within the continental shelf and the Exclusive Economic Zone (“EEZ”) of Cyprus.The area of operarions is very close to block 9, where the Italian oil company ENI is drilling for hydrocarbons on behalf of the Republic of Cyprus. Although these activities have sparked rigorous reactions on the part of the Republic of Cyprus, the “Barbaros” has yet to terminate its operations.

Prior to analyzing the ongoing situation, I’ll begin with a short review of the legal regime of the waters under consideration. According to customary international law and the Law of the Sea Convention 1982 (“LOSC”) a coastal state maintains an inherent right to a continental shelf, which extends up to a distance of 200 nautical miles (“nm”) measured from the coast. In addition, a littoral state is also entitled to claim an EEZ of a breadth of 200nm. In these zones, the coastal state enjoys exclusive sovereign rights for the purpose of exploring and exploiting the natural resources, either living or non-living, in its seabed and subsoil (articles 58(1)(a), 77(1)(2) and 81). Consequently, no other state can set forth assertions over the natural resources in another state’s maritime zones. Nevertheless, in both the continental shelf and the EEZ the freedom of navigation shall not be hindered (articles 58(1) and 78) as those waters, in essence, form part of the high seas. This is a trade-off aiming at striking a balance between the viewpoints of the great maritime powers on the one hand (which were reluctant to concede expansion of state jurisdiction over the high seas) and the smaller states on the other hand (which sought extended maritime rights in order to safeguard the natural resources of their sea waters).

The Eastern Mediterranean conundrum

(more…)

Guest Post: Update on Israel/Palestine and the Revival of International Prize Law

by Eliav Lieblich

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC)]

Back in January, I wrote a guest post  about prize proceedings initiated by the Government of Israel against the Finnish vessel Estelle, intercepted by the Israeli navy while attempting to breach the Gaza blockade in late 2012. As I wrote back then, the proceedings were held before the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel. The State based its application to condemn the vessel on old pieces of British legislation, which granted prize jurisdiction to courts in Mandatory Palestine (the British Naval Prize Act of 1864 and the British Prize Act of 1939).

As I noted back in January, prize powers have never been exercised by Israel before. Moreover, prize proceedings are extremely rare globally. Indeed, since customary prize law allows belligerents to capture and condemn private vessels – both “enemy” and, in some cases, “neutral” – prize law seems at odds with contemporary human rights norms protecting private property.

In this context, my January post raised several questions for the Haifa Court. Among these, I’ve questioned the continuous relevance of prize law in the human rights era, and whether Israeli administrative law will affect the Court’s understanding of prize law. Well, the wait is over: on August 31, the Court (Judge Ron Sokol), has rendered a 33-page decision in The State of Israel v. The Vessel Estelle.

I will spare the readers from detailing the Court’s finding of jurisdiction, although doubtless interesting to legal historians: the bottom line is that it has found itself to have inherited the jurisdiction from the former British prize courts in Palestine. But the Court had some interesting things to say in terms of substantive prize law. (more…)

Dear News Agencies of the World: China Did NOT Breach Taiwan’s Airspace, Just Its ADIZ

by Julian Ku

Several news agencies (here and here) have suggested that recent reports of Chinese military aircraft entering into Taiwan’s Air Defense Identification Zone  is akin to a territorial incursion.  For instance, J. Michael Cole warns at the Diplomat, “If they were indeed intentional, the latest intrusions could signal a further denigration of Taiwan’s sovereignty….”  In my view, calling ADIZ intrusions a breach of “airspace” and a denigration of “sovereignty” overstates the significance of an ADIZ under international law.

Taiwan’s own government has used the phrase “airspace”, so reporters can’t be faulted for repeating this phrase. But legally speaking, entering an Air Defense Identification Zone is NOT the same as entering a nation’s territorial airspace.  For an island like Taiwan, such territorial airspace would presumably start  end 12 nautical miles from its relevant island coast.  An ADIZ is usually a much larger zone declared by countries in order to allow them to track and identify aircraft that come near their territorial airspace.  If you look at Taiwan’s ADIZ  (in red), you’ll notice it goes well beyond 12 20131209DEN0006Mnautical miles from Taiwan’s coast (in fact, it technically stretches into China itself!).  An ADIZ is adjacent to a nation’s territorial airspace.  Declaring an ADIZ is not by itself illegal because it is not a claim of sovereign control over the airspace.  Of course, nations with an ADIZ usually demand foreign aircraft identify themselves before entering their ADIZ, but nations do not usually claim the right to exclude other nations’ aircraft from their ADIZ, as if it was sovereign territory. (For a recent discussion of the legal issues in ADIZ declarations, see here).

Now, since China has usually been careful to avoid crossing into Taiwan’s ADIZ (or at least parts of Taiwan’s ADIZ), its decision to do so now is interesting and significant.  But it is not a territorial incursion and it is not (technically) breaching “Taiwan’s airspace”.  So news agencies should be careful not to report it as such.

Guest Post: Are States Injured by Whaling in the Antarctic?

by Priya Urs

[Priya Urs has recently received a Master of Law (LL.M.) with a specialisation in International Law from the University of Cambridge, U.K.]

The recent Whaling in the Antarctic decision of the International Court of Justice (ICJ) has unraveled existing debates about the propriety of whaling today, illustrated by the pivotal determination of whether the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II) was in line with the object and purpose of the International Convention for the Regulation of Whaling 1946, and what that object and purpose might be. This issue, in turn, raises less discussed questions about the nature of the obligations the Convention imposes on contracting states; specifically, whether it includes an obligation erga omnes to refrain from commercial whaling. In this brief post I describe what the dispute does and does not tell us about the increasingly multilateral quality of state obligations, allowing even non-injured states like Australia to hold others accountable for obligations owed to the international community as a whole.

Multilateralism in International Law

Australia in its application to the Court alleged that the Japanese Government’s authorization of commercial whaling under the guise of scientific research was a violation of its obligations under international law – the Convention in particular, as well as ‘other obligations’ for the preservation of marine mammals and the marine environment. New Zealand (intervening) went a step further, suggesting that Japan’s actions were a challenge to the system of collective regulation established by the Convention, including contracting parties’ duty of ‘meaningful co-operation’. Japan on the other hand insisted that JARPA II was in line with the treaty’s Article VIII exception for scientific research, also claiming that there exists in customary international law a freedom to engage in whaling.

Considered collectively, the tenor of these various arguments raises a larger question about the very nature of state obligations: have multilateral ‘law-making’ treaties become the dominant source of obligations among states in contemporary international law? Professor James Crawford in a recent publication argues that to a large extent, they have. This trend is evident not only from the pleadings of Australia and New Zealand that conservation is a collective interest among states, but from the framework of the Convention itself. The Court’s discussion of the system of regulation set up by the Convention alludes to the cooperative effort among states contemplated during its drafting. In particular, the majority opinion notes the ‘significant role’ accorded to the Whaling Commission in regulating the activities of contracting states. In sum, whether the Convention amounts to a prohibition on or merely the regulation of commercial whaling, its law-making effect is well established.

The obvious conclusion to be drawn, then, is that multilateral agreements – such as the present Convention – are not merely aggregations of bilateral relationships. Their multilateral effect is manifested in the interest of states like Australia and New Zealand in ensuring mutual compliance irrespective of their ability to make claims to specific injury arising out of Japan’s violation. As a result, irrespective of whether the Convention was intended to prohibit commercial whaling as a conservationist effort, or simply to regulate states’ access to a common resource, this emphasis by the Court reaffirms this trajectory in the development of international law.

Obligations Erga Omnes

What is interesting about the proceedings in this dispute, then, is an issue that was not debated at all. Japan made no challenge to Australia’s standing before the Court (only making a challenge to ICJ jurisdiction using Australia’s reservation to the Convention), seemingly accepting as law the proposition that even though Australia was not an injured state in a bilateral relationship with Japan, it had a legal interest in ensuring widespread compliance among contracting states. This conclusion is purely conjecture, yet, regardless of whether this omission was a conscious decision or a glaring mistake by Japan, it is indisputable that all three parties’ positions in the Whaling dispute fall in line with the ICJ’s gradual recognition of obligations erga omnes over the last half-century.

Quick to offer an apology for its rejection of Ethiopia and Liberia’s public interest claim against South Africa in the South West Africa Cases, in 1970 the Court in its famous dictum in Barcelona Traction identified obligations erga omnes for the first time as obligations owed to the international community generally. It was only in 2012, however, that the question of standing was addressed by the Court directly, affirming in Obligation to Prosecute or Extradite that all states – including Belgium, a non-injured state – had a legal interest in ensuring Senegal’s compliance with the Convention Against Torture 1984.

This trend is reflected most clearly in Article 48 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts 2001 (ARSIWA), a progressive development of the law in which, instead of diluting the definition of an injured state, the ILC ultimately chose to recognise the right of a non-injured state to invoke the responsibility of a state in violation of its international obligations. Though not formally, the ICJ has affirmed the text of Article 48(1)(a) in its 2012 decision in Belgium v Senegal.

It is worth noting, however, that the Court indulged Belgium as a complaining state in a situation where the obligations involved were erga omnes partes only. As a result, its position on the broader category of obligations erga omnes in Article 48(1)(b) – owed to the international community as a whole – remains uncertain. It would appear that Article 48(1)(a) might have been similarly applied in the Whaling decision as involving obligations erga omnes partes on the basis of which Australia could defend its standing before the ICJ. Indeed, the Court seems to have subconsciously restricted itself to its position in 2012, determining the whaling dispute entirely on the basis of the Convention and choosing not to address Australia’s claims to Japan’s ‘other obligations’ outside of it.   

The ICJ’s silence on these developments in the law of standing in the Whaling decision is perhaps an unfortunate result of Japan’s failure to challenge to Australia’s locus standi. It might have been worthwhile for Japan to have argued that Australia had no legal interest in its alleged non-compliance with its treaty obligations, refuting Australia and New Zealand’s characterization of the dispute as involving multilateral obligations of the sort contemplated by Article 48(1)(a).

Conversely, Japan could have taken greater advantage than it did of Australia’s characterization of the Convention as a ‘multilateral regime for the collective management of a common resource’ in its jurisdictional challenge, precluding the need for the ICJ’s resolution of the dispute in the first place. Judges Owada and Bennouna hint at this in their dissenting opinions, each arguing that the self-contained institutional framework created by the Convention should be allowed to take effect in the interest of genuine multilateral cooperation, but stopping short of challenging Australia’s right of standing before the Court.

Is it possible to conclude that the ICJ is inclined towards expanding the content of obligations erga omnes to include efforts towards conservation of common resources? While the peremptory norm against torture might have been persuasive in recognizing Belgium’s claim to locus standi in Obligation to Prosecute or Extradite, strictly speaking, the peremptory status of the norm in question is irrelevant to the determination of whether the obligation to adhere to it is erga omnes. Consequently, it would be inaccurate to suggest that the Court in the Whaling decision has recognized the existence of an international norm against whaling. (more…)

Can International Law Be an Obstacle to Peace? Some Thoughts on Taiwan’s East China Sea Peace Initiative

by Julian Ku

I had the privilege today to attend a conference in Taipei today discussing the “East China Sea Peace Initiative”.  The ECSPI is Taiwan’s proposal to reduce and maybe even eliminate the confrontation between China and Japan in the East China Sea over the Diaoyu/Senkaku Islands.  The ECSPI is not all that complicated.  1) Shelve Territorial Disputes;and 2) Share Resources Through Joint Development.  There is more to the proposal (but not much more).  President Ma of Taiwan put his personal imprimatur on this initiative with a speech this morning.

As it was a conference sponsored by a foundation closely linked with the Taiwan government, no one at the conference had much to say that was critical of this initiative.  Of course, no scholar or speaker I saw today came from China os it is hard to know what they might have said. But there is nothing wrong or objectionable to the ESPCI.

What’s interesting about the “shelve disputes” strategy is that eschews the formal legal resolution of particular questions and suggests plowing forward despite sharp differences on legal rights and obligations.  For instance, the ECPSI recommends “joint conservation and management” of the living (mostly fish) and non-living resources (mostly hydrocarbons) of the East China Sea.  Yet this proposal is preceded by a fairly long statement of the justness of Taiwan’s legal claim to sovereignty over those same resources.

“Never compromise on sovereignty,” President Ma recommended today, but he also then suggested that countries can share and develop resources each country believes it has sovereign legal rights over.  Isn’t this really compromising on sovereignty, while at the same time denying you are compromising on sovereignty?

The idea that we can shelve (in this case) legal disputes in international relations is not one that originated with Taiwan, but it is not surprising that Taiwan is the country proposing this strategy.  After all, Taiwan itself is the living embodiment of the success of avoiding legal resolution of complex sovereign claims.  In its relations with China, it has agreed to shelve the question of Taiwan’s ultimate legal status in favor of increasingly close economic and other relations.  Interestingly, this approach would also eschew international arbitration or judicial resolution of these arbitral disputes, since such legal proceedings would adjudicate, rather than shelve, the sovereignty issues.  In reality, this approach suggest international law, which defines rights and obligations, is an obstacle to peace, rather than a facilitator of it.

I do hope Japan and China consider the Taiwan ECSPI.  But I have my doubts as the viability of continuing to “shelve” questions about sovereignty.  At some point, these questions will re-emerge and the “joint development” will actually result in giving up sovereign resources.   Some more stable equilibrium is probably needed.  My guess is that China feels the time for a new equilibrium is getting closer.

Can Israel Cut Off Water and Power to Gaza?

by Kevin Jon Heller

That’s the question at the heart of a complicated debate between a variety of IHL scholars. The debate began with a legal opinion that Avi Bell submitted to the Knesset, in which he argued that nothing in international law prohibits Israel from cutting off the water and power it provides to Gaza. Although the opinion is dense — and has been updated in response to a document criticising an earlier published version — the bottom line is that Bell rejects the idea that Gaza is still occupied and believes it is thus impossible to find a positive obligation on Israel to continue to provide water and power (p. 5):

Some have argued that Israel is required to supply the Gaza Strip because Israel allegedly maintains control over Gaza. There are two versions of this claim: one version claims that Israel belligerently occupies the Gaza Strip; the other claims that Israel “controls” the Gaza Strip for purposes of human rights treaties or “post-occupation” duties even though it neither occupies nor exercises sovereignty over the Gaza Strip. When it controls territory through belligerent occupation, a state may have the duty supply certain goods to a civilian population if there is no other way to ensure access to the goods. Similarly, when it controls territory over which it has lawful sovereignty, a state may have the duty to supply certain goods when human rights treaties demand their provision to the civilian population. However, Israel does not control the Gaza Strip for purposes of the law of belligerent occupation or human rights  duties. Thus, Israel cannot be held to a duty to supply.

Bell’s legal opinion led a group of leading Israeli international-law scholars, including Eyal Benvenisti, Aeyal Gross (also at SOAS), David Kretzmer, and Yuval Shany, to submit a response to the Knesset. The essence of the response is that even if Israel is no longer occupying Gaza (on which the experts do not take an opinion), its ongoing control over basic features of Gazan life means that it is not free to completely ignore basic Palestinian humanitarian needs. Here is the key paragraph (pp. 10-11):

Israel and Gaza are not equal sovereign entities. Israel has controlled Gaza for decades, which resulted in significant dependence on Israeli infrastructure. Even after the disengagement, it still holds certain powers over the population in Gaza – including by its control over essential infrastructure. Since Israel does not allow, de facto, the development of independent infrastructure in Gaza, it cannot completely deny the responsibility to provide these essential supplies. Therefore, the interpretation suggested in the Opinion does not reflect a proper balance between the different objectives of IHL – even when considering the special challenges of asymmetric warfare. Chiefly, this is because it results in a legal “black hole” which deprives the civilian population of the effective protection of international law.

The debate between Bell and the other experts led Diakonia, a Swedish NGO, to commission a third report from Michael Bothe, one of the world’s foremost IHL experts. Bothe concludes, like the group of experts, that cutting off water and power to Gaza could (in certain circumstances) violate IHL. But he offers two independent bases for that conclusion…

Let Me Be Clear: Taiwan Should Be Defended, Even Though the Defense is Illegal

by Julian Ku

So I managed to anger lots of folks (mostly on twitter) with my post Friday (republished in the Diplomat and RealClearWorld yesterday) on the international legal problems created by any Japanese intervention to defend Taiwan from an attack by China.  I don’t mind angering people (especially on twitter), but I do want to make sure they are angry with me for the right reasons. Many readers seem to think I want China to invade Taiwan, which is in fact the complete opposite of my policy goal.   So let me offer some clarifications of my position on policy, and a few rebuttals of legal responses to my arguments.

1) Policy: I am squarely in favor of U.S. military intervention to defend Taiwan against any PRC military attack. I am even in favor of intervention in the case of a declaration of independence by Taiwan as long as Taiwan acts in a responsible way so as not to threaten China’s national security.(My only hesitation on this is the cost to the US, but not on the merits of Taiwan’s case). Given how strong China is these days, I am pretty sure Taiwan could not be a real military threat to China (nor would it want to be).  Whether the US would actually protect Taiwan is the zillion dollar policy question that I don’t have the answer to.  I hope it does, but I don’t know if it will.

2) Law: However, my favored US policy is in deep tension with, or even direct conflict with, traditional understandings of the international law governing the use of force.  For those of us who love and cherish Taiwan, it is no use pretending as if the law supports a US or Japanese military intervention to defend Taiwan. It doesn’t. It would be better for all concerned if we faced this legal problem head-on rather than try to come up with complicated not-very-persuasive workarounds.  Here are the two most obvious workarounds, raised in this very angry and excited post by Taiwan-expert J. Michael Cole:

a) Responsibility to Protect and Humanitarian Intervention
Here is a simple response: R2P are non-binding principles that, even if they were binding, seems to require Security Council consent.  Humanitarian intervention remains deeply contested and doubtful in international law, and would not apply to Taiwan in any case until it was probably too late. Kosovo is a great example of how contested this doctrine is. Syria is another.

b) The ROC is a separate legal entity.
I get that this is a complicated issue, but I don’t think I am “misreading” historical documents when I write that i) the US recognizes the PRC as the government of China and that the US accepts that Taiwan is part of China; 2) Japan recognizes the PRC as the government of China, and Japan accepts that Taiwan is a part of China.  Sure, neither country recognizes that Taiwan is a part of the PRC, but both the US and Japan have made clear that China is a single legal entity that includes Taiwan, and that the PRC is the sole government in charge of this entity. We can futz around the details, but there is a reason why neither the US nor Japan (nor almost anyone else) have diplomatic relations with Taiwan.

Here is one interesting and unexpected policy consequence of Taiwan’s current legal position: it would be safer from a legal perspective for Taiwan to declare independence, since that would protect it from this legal problem I’ve identified. Of course, that legal position would probably be the least safe from a policy perspective, since it is the mostly likely to spark a Chinese attack.

Which brings me to my real point: the increasing irrelevance of Article 51 of the UN Charter to decisions by major powers on whether to use military force. The decision on whether to defend Taiwan should not depend on workarounds for Article 51. It should depend on the combination of moral values and national interests the US and Japan consider worth protecting here in Taiwan. I think Taiwan is worth protecting, but it is important to recognize that the law is not on Taiwan’s side.

Why “Lawfare” Won’t Deter China in the South China Sea

by Julian Ku

Harry J. Kazianis, the managing editor of The National Interest, has a smart post discussing the risk that the U.S. is taking if it tries to take more aggressive action to counter China in the South China Sea.  Essentially, he argues the U.S. has no effective strategy to counter China’s “non-kinetic” strategy to subtly alter the status quo by using non-military assets to expand control and influence in the region.  I agreed with Kazianis all the way until he offered his own solution:

There only seems one solution to the various territorial disputes in the region—specifically, what some are calling “lawfare.” All of the various claimants that have disputes with China in the South China Sea should appeal collectively to any and all international bodies that could possibly hear their claims. Only together can they hope to get Beijing to halt its aggressive actions.

He goes on to cite the Philippines claim against China in the UN Law of the Sea arbitration system as a possible model for other nations.

“Lawfare” or international law litigation is not going to be an effective counter to China here for at least two reasons (one legal, one policy-based):

  • 1) China has opted out of any “compulsory” system of international dispute resolution that would rule on its territorial claims in the South China Sea (or anywhere, for that matter).  This “opt-out” is perfectly legal and may very well prevent the Philippines from even making their full case to the UNCLOS arbitration tribunal.  There are no other legal institutions that have jurisdiction.  So the only way “lawfare” can work here is if China consents to arbitration. But if Kazianis is right that this is a strategy by China’s neighbors to block its expansion, then why would China ever agree to arbitration?
  • 2) Even if compulsory jurisdiction were somehow found in one of these international bodies, there is very little chance that China would feel compelled to comply with any negative ruling.  This is not a China-specific problem, but rather a problem almost every country faces when considering arbitration over territorial disputes.  The effectiveness of tribunals in these contexts is highly limited since they depend for enforcement on the individual state-parties.  This is why voluntary arbitration tends to work better than compulsory arbitration in these kinds of territorial disputes.  The U.S. and Canada, for example, have managed to settle (most of) their often contentious land and maritime borders through a combination of non-arbitral commissions, and then special bilateral arbitrations.  In the famous “Gulf of Maine” case, the U.S. Senate actually approved a special treaty with Canada to send a maritime dispute to a special chamber of the ICJ.  Although clunky, this model is far more likely to succeed in getting state compliance.

So while I agree with Kanianis and other commentators that China needs to be deterred from its current strategy in the South China Sea, I am fairly confident the use of “lawfare” will not be a way to accomplish this goal.

Game On, Again? Vietnam Planning to File Legal Action Against China Over South China Sea Dispute

by Julian Ku

There have been lots of reports out in the last 24 hours saying that the Government of Vietnam is planning to take legal action against China for its movement of an oil rig into disputed waters in the South China Sea.  Indeed, the Philippines Government has stated that Vietnam has consulted it about its ongoing arbitration case against China and the two nations issued a joint statement of solidarity opposing China’s actions in the South China Sea.

What would the Vietnam legal action look like? The most likely action would be to seek arbitration under Annex VII of UNCLOS, just as the Philippines has done.  Of course, China would have the same defense and likely the same reaction to any Vietnam claim: that China’s Article 298 declaration excluding disputes over matters involving “sea boundary delimitations”or “involving historic bays or titles….” would exclude jurisdiction.  Moreover, China might further argue that Article 298 also allows it exclude “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction….”

At first glance, I can’t see how Vietnam’s claim would be any better or worse than that of the Philippines with respect to jurisdiction.  Vietnam has the same objection to China’s Nine Dash Line, and Vietnam similarly argues certain South China Sea features claimed by China are not “islands” for purposes of UNCLOS entitled to an Exclusive Economic Zone.  So I think we will see a rerun of the Philippines arbitration.  Vietnam will constitute a tribunal, China will not participate, and away it goes.

Some other reports out of Vietnam suggest it will file a claim with the International Court of Justice, if only to show their good faith, even though the ICJ has no jurisdiction over China.  I don’t think this is a great strategy, but maybe it will be a useful diplomatic showcase.

Finally, there are reports Vietnam will allow its state-owned oil company to file an action against China’s state-owned oil company in Vietnamese courts.  This actually seems like an interesting idea, since once the Vietnamese company won the judgment, it could in theory try to enforce it against the assets of the Chinese company overseas.  It is not a slam-dunk, but it certainly could be a plausible claim.

I am doubtful that  an additional arbitration will lead to China backing down.  Certainly, the Philippines arbitration has not caused China to moderate its behavior toward the Philippines.   The extra added pressure of  a Vietnam arbitration is not huge, and my guess is that China will continue to simply ignore the arbitrations, reputational costs be damned.  I am not saying that it is bad strategy for Vietnam to try the arbitration route, but Vietnam should be realistic about the veryreal costs, and limited benefits of this strategy.

Did You Know Hazarding a Vessel Was a War Crime? Me Neither.

by Kevin Jon Heller

We have a new challenger in the competition for worst decision by a military commission ever! Judge Pohl has now issued an order in al-Nashiri concluding that Charge IX, Hijacking or Hazarding a Vessel or Aircraft, states a violation of the international laws of war. Here is the definition of that “war crime,” 10 U.S.C. § 950t(23):

(23) Hijacking or hazarding a vessel or aircraft.— Any person subject to this chapter who intentionally seizes, exercises unauthorized control over, or endangers the safe navigation of a vessel or aircraft that is not a legitimate military objective shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

Hijacking or hazarding a vessel is not a grave breach of either the Geneva Conventions or the First Additional Protocol. The Rome Statute does not criminalise hijacking or hazarding a vessel. No international tribunal has ever prosecuted the hijacking or hazarding a vessel as a war crime — not the IMT, not the ad hocs, not the ICC. The ICRC’s study of customary IHL does not mention hijacking or hazarding a vessel — although it does note that both the US Naval Handbook (Vol. II, p. 3893)  and The Restatement (Third) of the Foreign Relations Law of the United States (Vol. II, p. 3938) specifically distinguish between hijacking and war crimes. And so on.

How, then, does Judge Pohl somehow conclude that hijacking or hazarding a vessel is a war crime — as opposed to attacking civilians or civilian objects, both of which are war crimes and are both of which are also detailed in al-Nashiri’s charge sheet? By citing the widespread ratification of the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation.

Seriously. By citing the widespread ratification of the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation.

Here is what Judge Pohl says (emphasis mine):

The M.C.A. prohibits conduct that “endangers the safe navigation of a vessel.” The similarity between the M.C.A. and the SUA Convention is plain and unambiguous. The SUA Convention proscribes the same conduct the M.C.A. proscribes and of which the Accused is charged… The Commission finds by a preponderance of the evidence the Prosecution has demonstrated the crime of Hijacking or Hazarding a Vessel or Aircraft is based on norms firmly grounded in international law and can be plainly drawn from established precedent. Therefore, the Commission concludes the offense of Hijacking or Hazarding a Vessel or Aircraft was an international law of war crime at the time the Accused allegedly engaged in the conduct, thus conferring jurisdiction over the offense.

That’s it. That’s Judge Pohl’s entire argument. Never mind that the SUA Convention says nothing about the laws of war, applying equally in armed conflict and peacetime. Never mind that the SUA Convention does not even purport to create an international crime — it is, of course, a suppression convention that simply obligates States Parties to domestically criminalise certain acts. Never mind that, even if it is possible to argue that the widespread ratification of the SUA Convention somehow creates a customary rule prohibiting hijacking or hazarding a vessel (difficult in itself), such a customary rule would still not create “an international law of war crime.”

I hope I don’t need to explain in more detail why the widespread ratification of a suppression convention doesn’t create a war crime. But let’s take Judge Pohl’s methodology seriously. Want to know what other kinds of acts are also war crimes prosecutable in a military commission?

  • Nuclear proliferation (NPT — 190 ratifications)
  • Threatening civilian aviation (Safety of Civilian Aviation Convention – 188 ratifications)
  • Drug trafficking (Illicit Traffic in Narcotics Convention – 188 ratifications)
  • Manufacturing hallucinogenic drugs (Psychotropic Substances Convention – 182 ratifications)
  • Using child labor (Worst Forms of Child Labor Convention – 177 ratifications)
  • Transnational organised crime (Transnational Organized Crime Convention – 176 ratifications)
  • Kidnapping diplomats (Internationally Protected Persons Convention – 176 ratifications)
  • Corruption (Anti-Corruption Convention – 167 ratifications)
All of those conventions are suppression conventions — and each has been much more widely ratified than the SUA Convention. According to Judge Pohl’s logic, therefore, all of those acts are also violations of the international laws of war.In the off chance you needed additional proof that the military commissions are a joke, Judge Pohl’s decision is Exhibit A.

Guest Post: Law Of The Sea Tribunal Implies A Principle Of Reasonableness In UNCLOS Article 73

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law and of Marine and Environmental Affairs at the University of Washington.]

On April 14, 2014, the International Tribunal for the Law of the Sea (ITLOS) issued its ruling in the M/V Virginia G case (Panama/Guinea-Bissau), Case No. 19.  The dispute arose out of  Guinea-Bissau’s 2009 arrest of the Panama-flag coastal tanker M/V Virginia G after it was detected bunkering (i.e., delivering fuel to) several Mauritanian-flag vessels fishing in the Guinea-Bissau exclusive economic zone (EEZ) without having obtained a bunkering permit.  The case presented a number of issues, including whether the 1982 UN Convention on the Law of the Sea (UNCLOS), to which both states are party, grants a coastal state competency to control bunkering activities by foreign vessels in its EEZ.

After disposing of objections raised over jurisdiction and admissibility (notwithstanding the parties’ special agreement transferring the case to ITLOS), the decision adds a substantial gloss to several articles of the UNCLOS, particularly with respect to Article 73 on enforcement of coastal state laws regarding the conservation and management of living resources in the EEZ. Among other things, Panama alleged that Guinea-Bissau violated each of the four operative paragraphs of Article 73 in its boarding, arrest and confiscation of the Virginia G and by seizing and withholding the passports of its crew for more than 4 months. The tribunal’s holding can be summarized as follows:  (more…)