Tag: Law of the Sea

Good day everyone! Here is my follow-up post to the last case I discussed.

The earlier judgment, in this case, had an interesting ruling that is worth discussion.

There was a Memoranda of Understanding (MOU) between the countries, which had provisions that the delimitation of the maritime boundary would take place after the outer limits of the continental shelf of both nations were decided. The Court dismissed this. But the more interesting question of law regards the settlement of disputes found under Part XV of UNCLOS. Both Somalia and Kenya are state parties to the ICJ and UNCLOS.

Kenya argued that based on article 287(5), the ICJ does not have jurisdiction, and the dispute must be handled by Annex VII arbitration. However, under article 36(2) of the ICJ Statute, there is a compulsory component.

UNCLOS article 287(5) – If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree.

ICJ article 36(2) – The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

Therefore, any state party to the ICJ statute has agreed by default to the jurisdiction of the ICJ. This has the effect of making it rare for an Annex VII arbitration to be triggered since most of the state parties of UNCLOS are also state parties to the ICJ statute. However, Kenya made a reservation to article 36(2), which can be found here. As a Canadian, I found Kenya’s reservation to be of particular interest since it is very similar to Canada’s reservation, found here, starting on page 9.

The ICJ dismissed Kenya’s arguments regarding paragraph 1 of their reservation. Neither article 287(5) of UNCLOS nor the supposed MOU count as an agreement or a potential agreement (“shall agree”) that would bypass ICJ compulsory jurisdiction. Therefore, the reservation was not sufficient, and there must be evidence of an agreement or a likely agreement of another dispute resolution method, apart from the wording of UNCLOS.

Kenya raised two principles of law to support their claim that was also dismissed that is worth mentioning for educational purposes.

Lex posterior (derogat priori) – The principle that a later statute negates the effect of a prior one if the later statute expressly repeals, or is obviously repugnant to, the earlier law.[i]

Lex specialis (derogat legi generali) – The more specific rules will prevail over the more general rules.[ii]

I did not cite paragraphs of the judgment or go into the other aspects of it too heavily, but I think this judgment is worth reading if you are interested in jurisdiction issues. All countries with similar reservations, such as Canada, need to revisit them with the understanding of this ruling.

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[i] Bryan A Garner and Henry Campbell Black (eds), Black’s Law Dictionary (Eleventh edition, Thomson Reuters 2019) 1095.

[ii] ‘Lex Specialis | How Does Law Protect in War? – Online Casebook’ <https://casebook.icrc.org/glossary/lex-specialis> accessed 8 November 2021.

This week, the ICJ reached a judgment in the maritime boundary dispute between Somalia and Kenya. The case had some interesting aspects, such as potential agreements made when the countries were colonized.

The Judgment can be found here.

In paragraph 214, the Court found that:

• There was no past agreement between the two countries regarding the boundary;
• By a vote of 10 to 4 determined the boundary up until 200 nautical miles. See Judgment for exact boundry points;
• By a vote of 9 to 5, decided that the boundary would continue to the outer limits of the continental shelf. Both countries have submitted claims to have their continental shield extended past 200 nautical miles, as per the rules set out in UNCLOS;
• And rejected Somalia’s claim that Kenya violated its international obligations by its conduct in the disputed area.

Once again, the ICJ used their 3-stage method to determine the maritime boundary. It is important to note that this method is not in UNCLOS. The description of the method can be found on page 3 of the Judgment.

My interest in this case began with the question of jurisdiction. That Judgment can be found here, and I will break it down in my next post.

Tensions seem to be on the rise between Ukraine and Russia. Yesterday multiple media sources reported that Russia plans to close off parts of the Black Sea and the Kerch Strait between April 24 and October 31. The restrictions were said to apply to military vessels and other government vessels. The reports also state Ukraine’s opposition to this and that it would violate international law, specifically freedom of navigation, regarding international straits.

Today, updates to the reporting said that the Kerch Strait would not be blocked, but just parts of the Black Sea, for military exercise purposes.[1]

Background:

Ukraine’s issues regard both their rights as a coastal state and their rights as a flag state. The Kerch Strait connects the Sea of Azov to the Black Sea. The only two states in the Sea of Azov are Ukraine and Russia. Since Crimea is now part of Russia (not going to give a political stance, although most sources consider it an annexation), Russia has sole control over the strait. Both Russia and Ukraine have ratified the Law of Sea Convention. They have also signed a bilateral treaty regarding this area:

December 24^th, 2003 – Agreement on Cooperation on the use of the Sea of Azov and the Kerch Strait was signed by Russia and Ukraine.[2]

• The Sea of Azov was to be considered internal waters of both countries
• No delimitation was agreed regarding boundaries
• Foreign-flagged Russian and Ukrainian merchant vessels have freedom of navigation
• Other merchant vessels can pass the Kerch Strait if going to a port
• Military and state vessels by invitation or permission only

Most significant in this agreement is that the countries believe that the Sea of Azov is considered to be their internal waters.

Internal Waters and Straits under the Law of Sea Convention:

Internal waters are defined in the Law of Sea Convention (LOSC)[3] as:

Article 8

Internal waters

1. Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.
2. Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters.

How do the rights to pass through the strait under the LOSC affect a strait that leads to internal waters?

Article 38(2) prescribes the right of transit passage through international straits when one end of the strait is an exclusive economic zone or the high seas and connects to another exclusive economic zone or high seas. Therefore, the Black Sea connecting to internal waters does not work.

Article 45 prescribes the right of innocent passage through international straits excluded from transit passage under article 38(1) or between a part of an exclusive economic zone or high seas and the territorial sea of a foreign State. These two options do not apply to the Kerch Strait. It is not one of the straits excluded from article 38(1) and does not connect to the territorial waters but rather internal waters.

If the Sea of Azov is the internal waters of both Russia and Ukraine, what passage regime should apply?

Probably the regimes agreed upon in their Cooperation Agreement. Scholars have written extensively on the issues, especially since Crimea becoming a part of Russia and Ukraine losing their side of the strait.

Russian and Ukraine have been using an arbitration tribunal to try and resolve these issues. One source writes, “Russian interference with shipping in Ukraine’s internal waters in Kerch Strait and the Sea of Azov would be a violation of customary international law, but not UNCLOS(Law of Sea Convention).”[4] Blocking the Kerch Strait would, of course, damage the Ukrainian ports that rely on the passage of commercial vessels to deliver and transport goods. But, the initial reports stated Russia would ban military and government vessels, not commercial vessels.

A recent article concludes that if the countries stick to their original agreement regarding the Kerch Strait, then the issue can be resolved under the law of the sea and general international law.[5] However, this conclusion does not answer any of the boundary disputes within the Sea of Azov.

In summary, this situation is not so clear. The legal regime covering the Kerch Strait and the Sea of Azov has been in dispute since the Crimea situation in 2014. Several issues need to be resolved between the two countries regarding this dispute (and others)—first, the question of whether the Sea of Azov is internal waters or not. A legal regime for this Sea needs to be agreed upon or decided. If it is not internal, then territorial waters and exclusive economic zones can be formed, and its classification as an international strait under the LOSC could be established. If it remains internal, then provisions on customary international law and their agreement should be honoured and the Kerch Strait shall not be closed. I recommend reviewing the articles found in footnotes 2, 4 and 5 for an examination of the history of the Strait and Sea of Azov, Russia/Ukraine relations, and other possibilities regarding the resolving of the situation.

As of now, Russia is not planning to block the Kerch Strait. Hopefully, cooler heads will prevail regarding the increase in tension in the region.

Sources:

[1] ‘Russia’s Plan to Restrict Foreign Warships near Crimea Will Keep Kerch Strait Open – RIA’ (Reuters, 16 April 2021) <https://www.reuters.com/world/europe/russias-plan-restrict-foreign-warships-near-crimea-will-keep-kerch-strait-open-2021-04-16/> accessed 17 April 2021.

[2] Alexander Skaridov, ‘10 The Sea of Azov and the Kerch Straits’ in David D Caron and Nilufer Oral (eds), Navigating Straits (Brill | Nijhoff 2014) <https://brill.com/view/book/edcoll/9789004266377/B9789004266377_012.xml> accessed 17 April 2021, 222.

[3] United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 U.N.T.S. 397 (LOSC).

[4] Valentin J Schatz and Dmytro Koval, ‘Russia’s Annexation of Crimea and the Passage of Ships Through Kerch Strait: A Law of the Sea Perspective’ (2019) 50 Ocean Development & International Law 275 <https://www.tandfonline.com/doi/full/10.1080/00908320.2019.1605677> accessed 17 April 2021, 284.

[5] Alexander Lott, ‘The Passage Regimes of the Kerch Strait—To Each Their Own?’ (2021) 52 Ocean Development & International Law 64 <https://www.tandfonline.com/doi/full/10.1080/00908320.2020.1869445> accessed 17 April 2021.

Image:

By: Aleksander Kaasik

Link:https://en.wikipedia.org/wiki/Kerch_Strait#/media/File:Kert%C5%A1i_v%C3%A4in.jpg

On March 22^nd, it was the 400th anniversary of Hugo Grotius’ famous escape from a castle by hiding in a book chest. It is one of the many fascinating stories in his life.

Almost all research regarding the law of the sea, especially the freedoms on the high seas, begins with an examination of Hugo Grotius.

His book, Mare Liberum (the free sea), attempted to counter the ocean monopoly that Spain and Portugal had been granted the Pope. But, it did more than that; it laid out the claim, primarily through natural law, that the ocean was the property of none.

I have read his book a few times and used it in research for my master’s thesis and recommend it and its critiques.

For further reading:

Hugo Grotius’ Wiki

Hugo Grotius’ escape from Loevestein Castle

Mare Liberum