[Solon Solomon will join King’s College of London, Dickson Poon School of Law as of September 2013, and Jackson Nyamuya Maogoto is a Faculty member of the University of Manchester, School of Law.]
Much has already been written on the Comoros referral to the International Criminal Court (ICC) in light of the Mavi Marmara incident (
EJIL:Talk!,
Opinio Juris,
Human Rights Blog and
Dov Jacobs Blog). The referral while premised on a legal footing arguably has a second facet which is significant—political. It is as been noted elsewhere (
EJIL:Talk!) that this was the first case where an African state referred a non-African state to the Court. The political parameter aside, the Comoros referral introduces two important doctrinal issues which pervade the discussions of this referral. These are article 12(2) of the Rome Statute regarding vessel jurisdiction and the legal discourse around the axiom that all State Parties can refer to the Court possible crimes perpetrated on the territory of a State Party. The authors’ assertion is that the two spectra have wider implications for future cases and thus their elaboration is essential in the realm of the Prosecutor’s response to the Comoros referral.
As far as jurisdiction is concerned, we add our voice to authors who have so far who have held this is asserted. (See
EJIL:Talk!,
Opinio Juris and
Human Rights Blog-spot) In this particular piece we would like to argue that such an assertion is
de lege lata and not necessarily the case
de lege ferenda. The assertion of jurisdiction derives from article 12(2)’s grammatical reading. However it is imperative to bear in mind that since the Rome Statute is a negotiated treaty, it is subject to wider reflection other than the narrow confines of the black letter provision. In this regard we aver that as a treaty, the
Vienna Convention on the Law of Treaties (VCLT) is at play and in this regard invite consideration that the treaty provisions as provided for in the VCLT should be read in their contextual and historical depth, including their negotiation history and the volition of the parties. As such, there are elements that accompany the Rome Statute provisions on vessel jurisdiction which while not embedded in the wording of the provision itself, still constitute part of its essence. The Rome Statute provision was drafted along the lines of article 91 of the UN Convention on the Law of the Sea (
UNCLOS). The
latter, echoing a strong jurisprudence and treaty tradition stipulates and favours the notion that there must be a genuine link between the flag state and the vessel. This genuine link requirement is critical. While in some instances judicial bodies may have appeared reluctant to assert it, the reason was not its denial, but
judicial and
academic fears that a strict diligence to the principle would eventually preclude the forging of any nationality bonds, a far worse scenario.
In the MV “Saiga” (No.2) case, the International Tribunal on Law of the Sea expressly
stated that the role of the genuine link requirement is to secure more effective implementation of the duties of the flag state. UNCLOS does not envision an arrangement where states just confer nationality to ships and then are not at all engaged in their activities. Nationality is regarded as having a
functional character. States try to protect social bonds of attachment against mere formal nationality imposed by the technicalities of
law. This functional inquisition is evident in diverse fora. For example in the case of UN sanctions, such as those against Serbia and Iran, the relevant Security Council Resolutions considered the nationality of the vessel based on ownership or contract terms, regardless of the flag under which the ship may sail. (see
UN SC Res 787 (1992) and
UN SC Res 1929 (2010)). Essentially then, Article 91(1) of UNCLOS should be read
in conjunction with article 94, in a way that the exercise of effective jurisdiction over the vessel constitutes one of the necessary conditions for granting nationality. It is thus too long a legal bow to draw that with embryonic jurisprudence on the subject, the ICC will have in mind previous positions and thus reflect on its article 12(2) vessel jurisdiction as not only encapsulating the straight line reading on flag jurisdiction but also the matter of a genuine link with the vessel particularly given the nature of its mandate.
In the case of Comoros, the Mavi Marmara was Comoros
flagged just a week before the flotilla incident.
