Suchergebnisse

AbstractThis article discusses the current negotiations for an Implementing Agreement under the United Nations Convention on the Law of Sea on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. It discusses, in particular, the issue of the relationship of the new agreement with existing and future relevant regional instruments and bodies and the need for cooperation and coordination amongst them, the guiding principles of the new agreement, and the question of implementation and enforcement of the new agreement. These issues and the choices that delegations will make respectively highlight the controversy on the underpinning tenet of the agreement, ie between the 'freedom of the high seas' and the common heritage of mankind. The article concludes with a pessimistic prognosis that, in general, the agreement will fall short of the expectations that many States and international community have had at the early days of the negotiation.

The article explores the contours of intelligence gathering in the Exclusive Economic Zone (EEZ) under the international law of the sea. Intelligence gathering in the maritime domain is significant for military and law enforcement purposes and for both coastal States and other States. Intelligence gathering attains even more prominence in the EEZ due to the sensitive location and importance of resources to the coastal State, while the sui generis legal nature of this zone adds further complexity to this inquiry. Indeed, the law of the sea, as reflected in the Law of the Sea Convention, neither explicitly prohibits nor permits the collection of intelligence by other States in the EEZ. Equally, it is silent on the permissibility of intelligence gathering on the part of the coastal State. While acknowledging the complexity of legal issues pertaining to the EEZ, this article asserts that intelligence gathering within the EEZ would fall under a presumption of unlawfulness favoring the coastal State when the intelligence pertains to its economic interests. In contrast, the presumption would favor other States, rather than the coastal State, when the gathering of intelligence is a mere expression of the jus communicationis of the other State. Moreover, other pertinent rules of international law, ranging from the prohibition of the threat of the use of force and the abuse of right to the customary right of approach may find application when deciding whether the intelligence gathering activity violated the rights of the coastal State or other States. Intelligence gathering is certainly a difficult question to address, yet one that international law of the sea affords answers.

AbstractEUNAVFOR Operation Atalanta has been the first maritime operation of the European Union and it has certainly been successful given the significant decrease of pirate attacks off the Somali coast. However, various issues have been raised concerning its legal basis under international law and its legal framework, including questions of responsibility. These issues are particularly interesting since the EU has a more integrated legal order than other organizations involved in such operations (eg UN, NATO). The present article attempts to address these issues against the background of international and European law. Even though the legal basis of the Operation is clear from a European law perspective, there have been certain misconceptions concerning the legal basis of the Operation under international law. The delineation of the Operation's legal framework requires a careful analysis of the rules applicable to each of its phases and of its addressees, since each phase is subject to different rules which are binding on different actors. Finally, there is an extensive discussion of questions of responsibility, which were heavily influenced by the applicable Rules of Engagement and of the actual conduct of the Operation. The conclusion is that, at least on the high seas, responsibility should primarily rest with the flag States rather than with the EU. However, in most cases the EU is indirectly responsible for violations of international law, except in cases where suspected pirates are transferred to third States pursuant to EU agreements with such States, in which case it bears primarily responsibility.

On 29 March 2010, the European Court of Human Rights (ECtHR), sitting as a Grand Chamber, delivered its Judgment in the Medvedyev v France case, which involved the interdiction and the exercise of enforcement jurisdiction over a drug smuggling vessel on the high seas. The case was referred by both the applicants and the Respondent State to the Grand Chamber, following the Judgment of a Chamber of the Fifth Section of the Court, on 10 July 2008. The Grand Chamber accepted this referral and the public hearing took place on 6 May 2009. This decision is of considerable importance as one of the very few decisions of the Strasbourg Court which has touched upon issues pertaining to the law of the sea, let alone to interdiction of vessels on the high seas, and the only case to have found a violation of the Convention on the part of the interdicting State, namely France.

AbstractIt is true that the problem of interception of human beings on the high seas is more acute than ever, not only in terms of the number of vessels intercepted but also in terms of the variety of legal issues that it raises. The most worrisome observation, however, is that while interception of human beings has been practiced for centuries, currently the pendulum has swung from interception to free and save lives, for example, in the context of chattel slavery, to interception to prevent people from entering developed States and claiming a better future. This is particularly reflected in the practice of EU Member States, which have taken many initiatives in the maritime domain to strengthen the external borders of 'fortress' Europe. Lately, this practice is coordinated by a European Agency, commonly referred to as FRONTEX, which was established in 2004 in order to "coordinate the operational cooperation between Member States in the field of external borders management". To this end, FRONTEX has launched a number of maritime interdiction operations carried out on the high seas and even further, i.e. in the territorial seas of States of departure or transit, such as Mauritania, Senegal, Cape Verde. The purpose of this article is to address the most important questions that these maritime operations of FRONTEX raise, analysing them through the lens of the law of the sea and other rules of corpus juris gentium. Accordingly, in the first part there will be a thorough discussion of the pertinent legal bases of the interception operations on the high seas and in the territorial waters, while in the second the analysis will focus more on the relevance of other international rules like the use of force or the principle of non-refoulement to the present context. The application of the latter principle appears to be especially problematic in the majority of these operations since it is very likely that the persons onboard the intercepted vessels would be forced to return to their countries of origin, where they may be subjected to torture or inhuman or degrading treatment.

AbstractThe 'Operation Iraqi Freedom' in 2003 raised many international legal questions, which all have been more or less addressed in the academic literature since then. However, the thrust of the relevant legal etiology pertained to the implementation of a series of UN Security Council Resolutions, whose hermeneutics, ie the rules of interpretation, in contrast to other issues, have been scarcely explored and elucidated. Accordingly, the purpose of this article is to address the latter question of the hermeneutics of Security Council Resolutions, and propound a coherent thesis in this respect, which would be applicable not only in the Iraqi conflict but even beyond. It will examine, first, whether the provisions of Articles 31–33 of VCLT are applicable eitheripso jureormutatis mutandisin this respect and then having deprecated both of these options, it will turn its focus to the question of which theoretical framework in relation to the hermeneutics in international law could better serve its purposes. Drawing insights from, amongst others, Stanley Fish, Ian Johnstone and Aharon Barak, it will be possible to propound the thesis that any relevantregulatio interpretationsshould pay due regard to the institutional setting of the 'community' of the Council, which in turn qualifies the 'inter-subjective' approach or the collective will of the Council in light of the object and purpose of the Charter, ie the maintenance of peace and security, as the most pertinent hermeneutic paradigm. Premised upon the latter, the article proceeds and articulates a rubric of interpretive principles and presumptions to be applied in this regard, which, at the end, will be tested in the case of 'Operation Iraqi Freedom'.

Setting the scene : refugees, asylum seekers, and migrants at sea : the need for a long-term, protection-centred vision / Guy S. Goodwin-Gill -- A maritime security framework for the legal dimensions of irregular migration by sea / Natalie Klein -- The perfect storm : sovereignty games and the law and politics of boat migration / Thomas Gammeltoft-Hansen -- Who is the 'boat migrant'? challenging the anonymity of death by border-sea / Tamara Last -- The migrant smuggling protocol and the need for a multi-faceted approach : inter-sectionality and multi-actor cooperation / Jean-Pierre Gauci and Patricia Mallia -- Boat migrants as the victims of human trafficking : exploring key obligations through a human-rights based approach / Tom Obokata -- Transnational crime and the rule of law at sea : responses to maritime migration and piracy compared / Douglas Guilfoyle -- Interception of migrant boats at sea / Jasmine Coppens -- The duty to assist persons in distress : an alternative source of protection against the return of migrants and asylum seekers to the high seas? / Lisa-Marie Komp -- Access to asylum at sea? Non-refoulement and a comprehensive approach to extraterritorial human rights obligations / Mariagiulia Giuffre -- Responses to 'boat migration' : a global perspective - US practices / Niels Frenzen -- The (un-)sustainability of Australia's offshore processing and settlement policy / Claire Higgins -- Leave and let die : the EU banopticon approach to migrants at sea / Marie-Laure Basilien-Gainche -- Into Africa : 'boat people' in Sub-Saharan Africa / Cristiano D'Orsi, Sergio Carciotto, and Corey R. Johnson -- The EU external borders policy and frontex-coordinated operations at sea : who is in charge? Reflections on responsibility for wrongful acts / Maite Fernandez -- An examination of the comprehensive plan of action as a response to mass influx of 'boat people' : lessons learnt for a comprehensive approach to migration by sea / Meltem Ineli-Ciger -- Conclusion : closing remarks : the present and future of 'boat refugees' and migrants at sea / Anja Klug