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Law of the Sea

Russia Charges Greenpeace Protesters with Piracy, When Will the Netherlands File Its ITLOS Action?

by Julian Ku

I’m late to this story, which has already outraged Greenpeace and other supporters worldwide.

Greenpeace activists who were seized while protesting against Arctic oil drilling face up to 15 years in a Russian jail after being formally charged with piracy.

The 14 charged include four British nationals. Kieron Bryan, a freelance videographer, and the activists Alexandra Harris, Philip Ball and Anthony Perrett were all accused of “piracy as part of an organised group”. The offence carries a prison sentence of between 10 and 15 years.

Altogether there are 30 activists from 18 different countries being held in jails in the Russian port of Murmansk. They were travelling aboard the Arctic Sunrise, a Greenpeace ship that last month mounted a protest against the Prirazlomnaya oil rig. The drilling platform, in the Pechora Sea, is operated by the Russian energy group Gazprom. As two activists tried to scale it, Russian border guards descended on to the boat from helicopters and escorted it back to Murmansk with those on board kept under armed guard.

Professor Eugene Kontorovich has been first out of the box in the U.S. blogosphere, denouncing the piracy charges as “groundless.”  Based on the facts as alleged, I think he is right. Even if the Greenpeace activists were pursuing a “private end,” scaling an oil rig doesn’t seem to satisfy the “ship” requirement in UNCLOS (to which Russia is a signatory by the way).

So assuming Eugene is right (which is always a safe bet), are there any international legal remedies for groundless piracy charges?  In fact, Russia has recognized the competence of the International Tribunal for the Law of the Sea (ITLOS) under UNCLOS Art. 292 “in matters relating to the prompt release of detained vessels and crews.”

So it seems that the Netherlands (since the Greenpeace ship was Dutch-flagged) should be able to bring an action under Article 292 arguing that the detention of the Greenpeace ship was not in compliance with UNCLOS (and citing Eugene’s point about how this isn’t piracy). Article 292 allows the Netherlands (the flag state) to send the question of the legality of the detention to ITLOS 10 days from the time of the detention. ITLOS seems to have the authority to determine whether there should be a release, and should have the authority to order Russia to release the vessel and crew upon posting of a bond.

I see no legal obstacle to such a Dutch action, and I think the 10 days waiting period has run.  The Dutch Government has apparently demanded the release of the ship and crew, and has sent consular officials to see the detained activists.  I assume the next step is a legal action at ITLOS. They might as well do this now, since any ITLOS hearing will take another 15 days at lest.

It is worth noting that Russia has already been subject to an Art. 292 ITLOS proceeding before, in the 2007 incident involving 2 Japanese fishing vessels.  ITLOS ordered the release of the one of the vessels upon posting of a 10 million rouble bond, and Russia complied with this order within 10 days. I am curious whether Greenpeace would be willing to post a bond here, or whether it could be so easily settled.  Still, with this precedent,  I would expect an ITLOS filing any day now.

Russia May Charge Greenpeace Activists with Piracy; Will They Cite the Ninth Circuit? (Updated)

by Julian Ku

[See update at end of this post] Russia’s government has recently been talking up international law, so it will be interesting to see if they follow through with plans to charge Greenpeace activists with piracy.

MOSCOW — Russia opened a criminal case Tuesday against Greenpeace activists, accusing them of piracy for attempting to stage a protest on an Arctic oil rig. A Greenpeace spokeswoman called the accusation “absurd.”

Russian border troops seized the Greenpeace icebreaker Arctic Sunrise, along with its multinational crew of 30 activists and sailors, in a commando operation Thursday in the Barents Sea. The day before, the group had been foiled while attempting to raise a protest banner on a Russian oil drilling platform.

The facts remain pretty fuzzy, but I don’t think the Russian charge of piracy is quite as absurd as Professor Joseph Sweeney of Fordham, an eminent authority on admiralty law, makes it out to be.  Prof. Sweeney says in the article:

“They can’t be too serious about charging them with piracy,” said Joseph C. Sweeney, professor emeritus of international and maritime law at Fordham University Law School. “That requires stealing things and the intention of stealing things.”

But current definitions of piracy don’t require an intention for financial enrichment. Rather, as we noted back in February when the U.S. Ninth Circuit Court of Appeals upheld an injunction against anti-whaling protestors for attacking Japanese whalers, UNCLOS requires only that the attackers be acting for “private ends.”  As Kevin argued in his post, there is reason to believe that “private ends” does not include “politically motivated” acts (although Eugene Kontorovich has a good rebuttal of that point here).  In any event,  I think the traditional idea that piracy requires the goal of financial enrichment cited by Professor Sweeney is no longer widely held.

This means that the Russians can make out a colorable charge of piracy.  It also means that this theory will allow them to avoid questions about whether they were in the Russian exclusive economic zone, etc, since that shouldn’t matter if they stick with the piracy charge.  I expect the Russians will cite the Kozinski Ninth Circuit opinion, and if they do, this may be an important precedent for the development of modern piracy law.

[UPDATE: I stand by the analysis above, but I should note that 1) Eugene Kontorovich argues that this can’t be piracy because they did not attack a “ship”; and 2) Russia’s President Putin seems to have admitted this can’t be piracy, although he maintains there is some other legal violation here somewhere since he alleges they tried to “seize the rig by force”.]

Who Needs the Law of the Sea Convention? U.S. Signs Maritime Boundary Agreement With Kiribati

by Julian Ku

20130906_us_kiribati_map OK, I have to admit I was not familiar with the Pacific Island nation of Kiribati before reading this article, but I was heartened to learn that the U.S. signed a maritime boundary treaty with it on Friday.  Sometimes supporters of U.S. ratification suggest that it would be almost impossible to work with Law of the Sea signatories like Kiribati if the U.S. doesn’t join, but this actually doesn’t apply to most maritime boundaries.  Put another way, joining the Law of the Sea Convention won’t make it easier to resolve ongoing maritime disputes with, say, Canada. That remains the hard work of diplomacy, and negotiations.  Glad we have the ol’ Kiribati border settled though.  (Amusingly, the article notes that US government aid actually helped fund Kiribati’s legal and negotiating team. We paid their lawyers as well as ours!  Maybe we could try that with Canada!).

White House Counsel Announces Syria Strike Would Not Violate International Law, But Doesn’t Explain How

by Julian Ku

In the UK, the government released a brief note which described the legal theory justifying a strike on Syria.  The note may have had flaws, but it certainly offered a basis to evaluate the UK government’s view of international law.  In the United States, the equivalent appears to be conversations between the White House Counsel and Charlie Savage of the NYT

Ms. Ruemmler said that while an attack on Syria “may not fit under a traditionally recognized legal basis under international law,” the administration believed that given the novel factors and circumstances, such an action would nevertheless be “justified and legitimate under international law” and so not prohibited.

Come on, Charlie, you have got to push her to elaborate!  Why would it be “justified and legitimate”? Is it illegal but legitimate, or is it actually legal under a theory yet to be revealed by the administration? Has the State Department been asked for an opinion?

I don’t fault the reporter here since the constitutional issue is plainly more important than the international one, as a practical matter.   But I am curious that the President, who has publicly cited international law as a factor in his decisionmaking, has not bothered to offer anything more than a quote in a NYT article to explain its international legality.  To be sure, Congress is not exactly pushing him to do so, but I am surprised the bureaucracy hasn’t generated anything yet. Leak, please!

Not Even the Brits Can Make the Case Bombing Syria Is Lawful

by Deborah Pearlstein

Good thing nothing much happened while I was away on summer vacation… So as I wrote here last spring, there’s no clear basis under international law for a U.S. use of force in Syria – no UN Security Council resolution, and no apparent claim at this stage that the United States is acting in self-defense. The only theory of legality in play seems to be the one put forward by the British government, right before Parliament voted to reject the use of force in Syria. Namely, that force may be justified as part of an emergent customary norm permitting humanitarian intervention (see, e.g., NATO intervention in Kosovo).

The statement from the UK Prime Minister’s Office says a state may take “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention, provided” a set of conditions hold. Those conditions: (1) “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;” (2) it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved;” (3) the force used is “necessary and proportionate to the aim of relief of humanitarian need…”

But it just can’t support U.S. action here. Here’s why.
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Non-Syria News: Update on that Philippines-China Arbitration

by Julian Ku

I’ve been distracted the last few days by all this Syria stuff (and a nasty case of poison ivy), so I neglected to keep up with the latest on that Philippines-China UNCLOS arbitration now seated at the Permanent Court of Arbitration at The Hague.  Luckily, Luke Petersen of Investment Arbitration Reporter is on the case and has this great post analyzing the information released so far about the arbitration.  Note that the Philippines has until March 2014 to file their memorial.  This seems ridiculously long given that they’ve been preparing their case for at least a year already, and they have an interest in moving this along more quickly.  But that’s another conversation.

I don’t have much to add to Luke’s post except I would point readers to Luke’s interesting discussion of other arbitrations where one party doesn’t participate (like China is refusing to do here).  Those cases, he notes, can go all the way to an award, and even (in one case) to enforcement. Wouldn’t bet on that here, but you never know.

So Why Does the U.S. Need Seven Years to Decide Whether to Sign the Maritime Labor Convention?

by Julian Ku

It is not surprising that the U.S. has not ratified the Maritime Labor Convention, which came into force yesterday seven years after its text was adopted by the ILO. As David Kaye reminds us,  the Senate is not exactly in a ratifying mood these days.

But it is worth remembering that treaty enthusiasts can’t put always blame on the Senate’s “sovereigntists” for treaty ratification problems. This appears to be a case of massive Executive Branch dilatoriness.  Not only has the U.S. State Department failed to submit the text to the Senate, the U.S. government has not even signed the treaty yet. Apparently, the five years of negotiation leading up to the agreement on the MLC’s text, plus the seven years since its adoption has not been enough time for the U.S. government’s various agencies to come up with a position on this treaty. Is there some secret controversy here that I don’t know about? What is the Coast Guard up to?   Did it just get lost in the bureaucracy somewhere?

 

Emerging Voices: Pirates of the Indian Ocean–Enforcement in the Seychelles

by Tamsin Paige

[Tamsin Paige is an M.Phil (Law) Candidate, Australian National University College of Law]

Piracy originating from the coast of Somalia hit its peak in 2011, with 236 attacks occurring in the Red Sea, Gulf of Aden and the Somali region of the Indian Ocean in that year, according to the IMB’s 2012 piracy report. So far in 2013 the IMB has reported only 9 attacks originating from Somalia, resulting in two hijackings, indicating that significant headway has been made through counter-piracy efforts. As part of my thesis examining the role the law has played in the rise and fall of piracy, in Somalia and throughout history, I had the privilege of being invited by the Seychelles Attorney-General to spend January 2013 observing piracy prosecutions in the Seychelles and conducting confidential interviews with those involved in the investigation, prosecution and incarceration of Somali pirates. This fieldwork yielded a wealth of interesting data, some of which I will share here.

The first thing that struck me about the broader regional prosecution process was the importance that was put on the Seychelles involvement and how it was viewed as key to the continued efforts to engage in regional prosecutions of Somali pirates. The esteem in which the Seychelles government is being held for its efforts in counter piracy is tempered by two of the key issues being faced by the legal enforcement regimes: capacity and the repatriation of convicted pirates to United Nations Office on Drugs and Crime (UNODC) established and mentored prisons Somalia.

The repatriation of convicted pirates from Seychellois prisons to UNODC mentored prisons in Somaliland and Puntland are the key to the continued regional prosecutions. In January 2013 it was estimated that convicted and suspected pirates made up 20% of the prison population in the Seychelles. The repatriation program is referred to as the conveyor belt, as the Seychellois government is reluctant to take any more suspected pirates for prosecution unless it can repatriate an equal number of convicted pirates to Somali prisons. However, a number of capturing nations are disinclined to authorise these transfers as the prisons in Somalia did not meet European standards, even though evidence overwhelmingly shows that they more than meet human rights standards. However, more recently there have been indications that the EU has agreed to future repatriation transfers.

The capacity issues that were highlighted by my observations and by the interview participants are in no way restricted to the size of the prisons. The capacity and structure of the court systems in the region, the administrative capacity of the investigatory bodies and the investigatory capacity of the enforcing navies were all raised (along with other issues) as stumbling blocks to the effective prosecution of Somali pirates. Beyond highlighting the need for more nations within the region to engage in prosecuting captured piracy suspects, the issues being faced with the court system were varied.

One participant argued…

Emerging Voices: Piracy vs. Core Crimes–Assessing the Consequences of the Juxtaposition between Transnational and International Crimes

by Marta Bo

[Marta Bo is a Ph.D. candidate at the University of Genova, Italy and a member of the Peace and Justice Initiative. She wrote this post while she was a Visiting Fellow at the British Institute of International and Comparative Law]

Over the past few years, several proposals have been made to put an end to the culture of impunity persisting among Somali pirates. The use of international adjudicative mechanisms – such as an international piracy court, or the International Criminal Court with an amendment to its ratione materiae jurisdiction – has been proposed (United Nations Secretary General Report of 26 July 2010) and, also, defended by several scholars. These instruments are typical expressions of a direct system of adjudication that has been conceived exclusively for the prosecution of international crimes stricto sensu (genocide, war crimes, crimes against humanity and aggression). Although these options seem now to be displaced by more practical avenues for prosecution, such as specialized piracy chambers within national jurisdictions of Regional states (ex plurimis, R. Geiß and A. Petrig, Piracy and Armed Robbery at Sea, 2011, 184), they nonetheless deserve consideration in light of the existing fundamental differences between piracy and international crimes stricto sensu, otherwise called core crimes A closer scrutiny of piracy and core crimes, may suggest that, not only practical matters, but also a different logic should underpin the legal discourse concerning possible judicial fora to prosecute piracy.

Piracy and core crimes are a good example of the juxtaposition of transnational crimes and international crimes. Piracy is often referred to as an international crime, and sometimes as the first international crime. However, this is misleading. Piracy is not directly criminalised under international law: customary law and the UNCLOS regime neither provide for individual criminal responsibility for piratical acts nor proscribe the piratical conduct. Article 101 of the UNCLOS merely defines the offence. Notwithstanding the fact that national courts may directly apply the UNCLOS definition when constitutional arrangements allow so, piracy generally needs to be criminalised domestically in order to be adjudicated upon by national courts. The UNCLOS primarily sets out an obligation for states to adopt the necessary national criminal law establishing individual criminal responsibility for the conduct. Therefore, the customary definition of piracy as mirrored in the UNCLOS provision (“This definition is generally, though not universally, accepted as having codified pre-existing customary international law”, see D. Guilfoyle, Piracy off Somalia: UN Security Council Resolution 1816 and IMO regional counter-piracy efforts, 57 I.C.L.Q. 690 (2008), 693) does not ordinarily constitute the basis for piracy prosecutions, but rather it is the municipal legislation which does.  The Harvard Draft Convention, which is the basis for the UNCLOS piracy provisions, lends support to this argument.  The theory behind the Draft Convention was that “piracy is not a crime by the law of nations” (Harvard Research Draft Convention on Piracy, 26 Am. J. Int’l L. Sup 739 1932, 760) and “pirates are not criminals by the law of nations” (Id., 756). The Harvard Researchers adopted the view that piracy constitutes a special ground of jurisdiction, “the basis of an extraordinary jurisdiction ” (Id., 760).

By contrast, core crimes are directly criminalised under international law. International norms directly prohibit these offences by virtue of norms directed at individuals. These norms create universal direct criminal responsibility for individuals under international law.

Crimes that international law directly criminalises and piracy, only indirectly criminalised under international law, differ, in particular, on the following points: i) state involvement as compared to de-nationalisation; and ii) an exceptional gravity that constitute a threat to the most important values of the international community (international element) as compared to a cross-border harm to interests common to all or a number of states (transnational element). From these different characterizations, it follows that…

China and the Philippines Take Their “Battle” Over South China Sea to Military Conference

by Julian Ku

The indefatigable Benjamin Wittes at Lawfare has a short post describing a lively exchange between the Chinese and Filipino representatives at MILSOPS, an invitation-only off-the-record meeting of top military officials from the Asia-Pacific region, about China’s nine-dash-line claim to the South China Sea.

Apparently, this has been an ongoing debate at this annual conference. Last year, the Chinese representative presented this set of powerpoint slides usefully entitled:  “China has indisputable sovereignty over the islands in the South China Sea: Understanding the South China Sea issue from the angle of law”.  (The title says it all). Ben says he is somewhat constrained in his reporting since the conference is off-the-record, but hopefully he can get participants to write more about their exchange.

The one thing that is a constant in these slides and from other articles from China is that Chinese officials are using their claim to sovereignty over the “Nansha” islands as the basis for their claims of “indisputable sovereignty.”  And China does indeed have plausible sovereignty claims to many of the islands in the South China Sea, and those sovereignty claims are of course not subject to UNCLOS arbitration.  But no one in China has really offered a particularly detailed explanation of how the sovereignty claims to the islands can justify the “nine-dash line” (see my earlier post here describing the nine-dash line claim) which goes well beyond a 12 mile territorial sea or the 200 mile exclusive economic zone. Thus, even if China had sovereignty over every random rock in the South China Sea, it can’t quite support the nine-dash line.  I wish Chinese scholars would offer a more comprehensive explanation or defense of the nine-dash line, as oppose to muddying the issue by raising their island sovereignty claims.  It is the nine-dash line that makes China’s claims unusual, and particularly dangerous.  And, oddly, it overshadows and weakens China’s much better and more legally supportable claims to particular South China Sea islands.

Law of the Sea Symposium: Ilias Plakokefalos Comments on Anastasia Telesetsky’s post

by Ilias Plakokefalos

[Dr Ilias Plakokefalos is a post-doctoral researcher at the SHARES Project at the Amsterdam Center of International Law, University of Amsterdam]

Cross-posted at SHARES Blog.

Telesetsky’s highly interesting post highlights the problem of flag state responsibility in the law of the sea. The post identifies two major issues: Illegal Unreported and Unregulated (IUU) fishing and structurally unsafe vessels. Both these issues have been hard to resolve and difficult to regulate, at least from a flag state perspective. This comment seeks to further the debate by raising two questions regarding the role of the flag state in terms of its international responsibility.

First, if we assume that articles 91 and 94 of the Law of the Sea Convention (LOSC) do in fact impose an obligation on flag states to control registration of their ships, the obligation is still rather vague. Article 94 provides that states ‘shall take measures’ to ensure safety at sea, and that these measures shall conform to ‘ international regulations, procedures and practices’. But which regulations are to be followed and which procedures must be adopted is not evident from the LOSC. Even if regulations and procedures are indeed identified (through the International Maritime Organization for example) then the problem of identifying the flag state’s conduct appears. What is the precise conduct that may lead to responsibility? Telesetsky argues that the flag state must exercise due diligence in its authorization procedure. The contents of due diligence obligations are notoriously hard to define in international law. Some guidance might be found in technical standards adopted by international organizations but the problem persists, especially if the role of the classification societies is taken into account (i.e. another non-state actor-besides the shipowner- involved in the process of ensuring the safety of the vessel).

Second, Telesetsky asks in her conclusion (in reference to the Erika and the Prestige incidents) why flag states should not bear responsibility for damage caused by the vessels. She concludes that flag state responsibility could indeed offer a solution to issues of pollution or IUU. It is a fair question and a reasonable conclusion. The fact is that states have opted to resolve claims for oil pollution damage at the national level, through the Civil Liability and Fund Conventions. They have also concluded similar conventions on other areas, covering for example the problem of hazardous and noxious substances (HNS Convention). But is this approach enough? I would answer in the negative. While the oil pollution system works rather efficiently, although not without problems, it seems that states have managed to deflect the discussion from their own responsibility on most other issues. If states had sought to tackle the problem of pollution or IUU directly, they would have to accept a number of obligations, and they seem unwilling to do so.

In any case, I concur that clarification of the obligations of flag states and consequently their more ready exposure to responsibility claims is a step in the right direction.

Law of the Sea Symposium: State Responsibility and Flag State Duties

by Anastasia Telesetsky

[Anastasia Telesetsky is an Associate Professor of Law at the University of Idaho College of Law]

Cross-Posted at SHARES Blog.

Sovereign nations have the right to extend their nationality to non-state actors who agree to adhere to national laws. But is there any broader international state responsibility associated with the granting of flag state status to known problematic non-state actors? Take the example of the South Korean flagged F/V Premier. This vessel licensed to the Dongwon company, the parent company of Starkist Tuna, was recently accused by Liberia of illegal fishing in the coastal waters of Liberia. In April, the Dongwon company settled with the government of Liberia for somewhere between one million and two million dollars.  An interesting question has arisen over whether the government of Korea now has the obligation to list the F/V Premier as an Illegal, Unreported and Unregulated fishing vessel which would mean that the vessel would not be permitted to operate in regional fishery management areas such as those regulated by the Indian Ocean Tuna Commission.  Within the IOTC waters, contracting parties and cooperating non-contracting parties are expected to demonstrate that vessels permitted to fish “have no history of IUU fishing activities or that, if those vessels have such history, the new owners have provided sufficient evidence demonstrating that the previous owners and operators have no legal, beneficial or financial interest in, or control over those vessels…”

Granting the use of the flag and vessel registration are not part of an unconditional sovereign right. While Article 91 permits every State to  “fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag”,  this right is conditioned by Article 94 which provides that “[e]very State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.” When read together, Article 91 and Article 94 suggest that among the necessary conditions for granting nationality or issuing registration is a State’s demonstration of effective jurisdiction and control over “technical matters” which would include vessel safety and “social matters” which in addition to labor practices might also  include enforcing sustainable fishing practices. Healthy fisheries should be considered today a “social matter” since so many people globally depend on marine fisheries for basic animal protein and employment.  A State is, of course, not required to fix structurally unsound ships or to staff fishing vessels with reliable fishing crews who understand conservation practices—but it is required to exercise control over those who might own unsound ships or practice unsound fishing practices. One easy way to exercise effective control over “problem ships” is simply to refuse to grant such vessels nationality or to allow registration of these ships.

This post argues that States granting their nationality to or providing ship registration for any vessels that are 1) known or suspected IUU fishing vessels or 2) structurally unsafe cargo vessels violate erga omnes customary international legal duties as well as discrete treaty obligations.  (more…)