Category: International Law Page 6 of 12

By: Nigel Bankes

PDF Version: The South China Sea Award and the Vienna Convention on the Law of Treaties

Decision Commented On: Award on the Merits of the Annex VII Tribunal, In the Matter of the South China Sea Arbitration, The Republic of the Philippines v The People’s Republic of China, 12 July 2016

The Annex VII Tribunal in the South China Sea Arbitration handed down its decision on the merits in the dispute between the Philippines and China on 12 July 2016. The dispute between the parties involves China’s extensive maritime claims in the South China Sea (many within the context of China’s so-called nine dash line); claims in relation to fishing activities by Chinese flagged vessels; and claims in relation to China’s dredging and construction activities associated with reclamation activities on a series of maritime features in the South China Sea. The Tribunal ruled in favour of the Philippines on almost all issues in its 479 page unanimous and comprehensive decision. There are already a number of posts on the Award; see, for example the useful first thoughts offered by Doug Guilfoyle on the blog of the European Journal of International Law.

Introduction

This post examines the Tribunal’s approach to some of the interpretive issues raised in the course of its decision on the merits.

The Annex VII Tribunal in The “Enrica Lexie” Incident Makes New Provisional Measures Order

By Nigel Bankes

On May 12, 2016

In Arbitration, International Law, Law of the Sea

By: Nigel Bankes

PDF Version: The Annex VII Tribunal in The “Enrica Lexie” Incident Makes New Provisional Measures Order

Decision commented on: Annex VII Arbitral Tribunal, Order on Prescription of Provisional Measures in the “Enrica Lexie” Incident, Registry of the Permanent Court of Arbitration, 29 April 2016

The “Enrica Lexie” incident has already been the subject of an earlier post here in relation to the provisional measures order made by the International Tribunal for the Law of the Sea (ITLOS) pending the establishment of the Annex VII Tribunal in the matter. The facts of the matter and the unusual nature of ITLOS’s jurisdiction in cases of this sort are canvassed in that earlier post. The characterization of the dispute as summarized by the Annex Tribunal VII is as follows (at para 5):

According to Italy, the Parties’ dispute arises from an incident approximately 20.5 nautical miles off the coast of India involving the “MV Enrica Lexie”, an oil tanker flying the Italian flag, and India’s subsequent exercise of criminal jurisdiction over the vessel and two Italian marines from the Italian Navy, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, in respect of that incident. According to India, the “incident” in question concerns the killing of two Indian fishermen, on board an Indian vessel named the “St. Antony”, and the subsequent exercise of jurisdiction by India. It is alleged that the fishermen were killed by the two Italian marines stationed on the “Enrica Lexie”.

Canada-Iran Relations: Sanctions, Diplomatic Relations, Booby-Traps and the Law

By Michael Nesbitt

On January 22, 2016

In International Law, Terrorism and Security

By: Michael Nesbitt

PDF Version: Canada-Iran Relations: Sanctions, Diplomatic Relations, Booby-Traps and the Law

This week, it was reported that Canada’s Foreign Minister Stephane Dion and the Liberal government were considering lifting sanctions on Iran and re-establishing diplomatic relations between the two nations. The quandary here – to lift or not to lift, to engage or not to engage – has been foreseeable for some time: I wrote an op-ed in the Globe & Mail back in July warning the next government that they would have to be prepared to act, and act quickly, once the US lifted its sanctions on Iran (see here).

The repercussions of Canada’s delay for Canadian business are immense: Our companies do not want to be left behind as Iran’s enormous emerging market – 80 million people with a dilapidated infrastructure and close connection to a large Diaspora in Canada – begins to open up to the rest of the world. There is no such thing as a second-movers advantage.

But Canada’s business interests are not the only consideration here, even in our struggling economy; Canada’s national security regime is also implicated and the situation is both complicated and controversial.

Let’s start with a reminder of why Iran sanctions are now in the news before getting into the commentaries that have recently set off a debate in Canada.

The “Historic” Paris Climate Agreement: What It Means “At Home” for Canada and the Alberta Oil Sands

By Sharon Mascher

On December 18, 2015

In Climate Change, Environmental, International Law

By: Sharon Mascher

PDF Version: The “Historic” Paris Climate Agreement: What It Means “At Home” for Canada and the Alberta Oil Sands

Matter Commented On: Paris Agreement under the United Nations Framework Convention on Climate Change

On Saturday December 12, 2015, French Foreign Minister Laurent Fabius declared consensus and gavelled the Paris Agreement. While far from perfect, the Agreement is being hailed by many around the world as historic (see for example here, here and here). Canadian Prime Minister Justin Trudeau is no exception, labeling the agreement “historic, ambitious and balanced” in a Statement issued following the conclusion of the Paris climate conference. The Statement goes on to say “[t]ogether with our international partners, we agreed to strengthen the global response to limit global average temperature rise to well below 2 degrees Celsius as well as pursue efforts to limit the increase to 1.5 degrees”. This is indeed historic as, in so doing, the international community agreed for the first time to increase the level of ambition beyond the 2°C maximum that has prevailed to date (see COP 16 Decision 1/CP.16). There is now a clear commitment within the Paris Agreement to hold temperatures to well below 2°C, and a more aspirational target to pursue a limit of 1.5 °C.

ITLOS, The Enrica Lexie Incident and the Prescription of Provisional Measures: Saying That There is Urgency Does Not Make It So

By Nigel Bankes

On September 16, 2015

In International Law, Law of the Sea

By: Nigel Bankes

PDF Version: ITLOS, The Enrica Lexie Incident and the Prescription of Provisional Measures: Saying That There is Urgency Does Not Make It So

Decision Commented On: ITLOS, The Enrica Lexie Incident: Order in respect of request for the prescription of provisional measures, Italy v India, 24 August 2015

Article 290 of the Law of the Sea Convention of 1982 (LOSC) accords the International Tribunal of the Law of Sea (ITLOS) the authority to prescribe provisional measures in two different circumstances. Paragraph one authorizes ITLOS (along with the International Court of Justice, and any relevant international tribunal properly seized with an application) “to prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision” provided that ITLOS, the Court or an arbitral tribunal (as the case may be) has prima facie jurisdiction, to consider the matter.