In association with the International Commission of Jurists

Law of the Sea

14 Oct

The BBC charts the latest back-and-forth between China, the U.S. over the Spratly Islands and, especially, navigation in the South China Sea. Much of the discussion of this issue has focused on the increased pace of China construction and land reclamation on series of islands and reefs, changing the “facts on the ground” to bolster its territorial and maritime claims....

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30 Jul

While I was on (my completely undeserved) vacation in California recently, I noticed more evidence that China's government is becoming hyper-sensitive about criticism of its non-participation in the Philippines-China arbitration at the Hague. First, a top U.S. government official stated at a conference on July 21 that, among other things, "...

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17 Jul

In late 2014, the Office of the Prosecutor rejected a request by Comoros to open a formal investigation into Israel's attack on the Mavi Marmara. To my great surprise, the Pre-Trial Chamber (Judge Kovacs dissenting) has now ordered the OTP to reconsider its decision. The order does not require the OTP to open a formal investigation, because the declination was based...

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27 May

I have been following closely the U.S. Navy's plans to use military ships and aircraft to challenge China's aggressive land reclamation activities in the South China Sea, and China's not very positive reaction to these plans.  But although there is a real dispute brewing here that could escalate into a sovereignty fight, I think media reports are making this dispute...

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07 May

Sea Shepherd, the activist group that has been aggressively protesting Japanese whaling practices, has filed a very interesting petition for certiorari with the U.S. Supreme Court.  Readers may recall that Sea Shepherd was sued by a group representing Japanese whalers under the Alien Tort Statute (ATS).  The Court of Appeals for the Ninth Circuit held that Sea Shepherd's actions of...

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05 May

[Sondre Torp Helmersen is a PhD Candidate at the University of Oslo and Niccolò Ridi is a PhD Candidate at King’s College London and SNSF Research Assistant, The Graduate Institute, Geneva.] 1. Introduction The recent disasters off the coasts of Italy have been the deadliest documented incidents in the troubled history of migration in the Mediterranean sea. The unprecedented number of lives lost at sea...

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04 Apr

[Craig H. Allen is the Judson Falknor Professor of Law/Professor of Marine and Environmental Affairs at the University of Washington.] The International Tribunal for the Law of the Sea (Tribunal) continued to develop the law of flag State responsibility in a 68-page advisory opinion issued on April 2, 2015 (Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC),...

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05 Mar

Last September, Ghana commenced an arbitration under Annex VII of the UN Convention for the Law of Sea seeking judicial confirmation of its rights to explore for oil and other resources in maritime areas disputed by its neighbor Cote D'Ivoire.  This past January, the two countries agreed to submit a dispute over maritime boundaries to a special chamber of the International Tribunal for...

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05 Nov

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...

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04 Nov

[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

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14 Sep

[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.
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