The M/V “Norstar” Case (Panama v. Italy) (ITLOS)

2019 ◽  
Vol 58 (4) ◽  
pp. 673-737
Author(s):  
Richard Collins
Keyword(s):  
Law Of The Sea ◽  
International Tribunal ◽  
The Law ◽  
First Time ◽  
Flag State ◽  
Freedom Of Navigation

On April 10, 2019, the International Tribunal of the Sea (ITLOS) gave judgment in the M/V “Norstar” (Panama v. Italy) case. This was the first time an international tribunal had ruled directly on the principle of freedom of navigation in international waters. Specifically, ITLOS found (by fifteen votes to seven) that by arresting and detaining the Panamanian-flagged M/V “Norstar”, Italy had violated Article 87(1) of the 1982 UN Convention on the Law of the Sea (UNCLOS). In doing so, the Tribunal arguably relied on a quite expansive understanding of the exclusive flag state jurisdiction principle as set out in Article 92 UNCLOS—a point that was argued forcefully in a seven-judge dissenting opinion. Below, I will briefly outline the background to the case before setting out the central aspects of the judgment and considering further this point of contention surrounding the permissibility of nonflag prescriptive measures in international waters.

scholarly journals The MV “Norstar” Case (Panama v. Italy)

2020 ◽  
Vol 114 (1) ◽  
pp. 116-123
Author(s):  
Cameron Miles
Keyword(s):  
Law Of The Sea ◽  
International Tribunal ◽  
The Law ◽  
State Rights ◽  
Flag State ◽  
The Way ◽  
Freedom Of Navigation ◽  
High Seas

In the MV “Norstar” Case (Norstar Case), the International Tribunal for the Law of the Sea (ITLOS) produced two reasoned decisions. In the first, the Tribunal established jurisdiction over the relevant dispute and the admissibility of Panama's claims. In the second, it found that Italy had violated Panama's right to freedom of navigation on the high seas. In the latter decision, the Tribunal relied on an expansive understanding of flag state jurisdiction—prompting a vociferous joint dissent by seven of its twenty-three judges. The majority's understanding of the jurisdictional exclusivity of the flag state as extending to prescriptive as well as enforcement jurisdiction is a significant expansion of flag state rights—and will have a corresponding impact on the way that shipping is regulated internationally.

scholarly journals Prompt Release of Detained Foreign Vessels and Crews in Matters of Marine Environment Protection

2005 ◽  
Vol 33 (2) ◽  
pp. 240-255 ◽  
Author(s):  
Heiki Lindpere
Keyword(s):  
United Nations ◽  
Marine Environment ◽  
Law Of The Sea ◽  
Financial Security ◽  
Environment Protection ◽  
International Tribunal ◽  
State Party ◽  
The United Nations ◽  
The Law ◽  
Flag State

Article 292 of the United Nations 1982 Convention on the Law of the Sea (Convention) reads:1. Where the authorities of a state party have detained a vessel flying the flag of another state party and it is alleged that the detaining state has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining state under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree.2. The application for release may be made only by or on behalf of the flag state of the vessel.3. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. The authorities of the detaining state remain competent to release the vessel or its crew at any time.4. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining state shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew.

Reflections on the M/V “Norstar” Case Before the International Tribunal for the Law of the Sea

2020 ◽  
pp. 291-316
Author(s):  
Yoshifumi Tanaka
Keyword(s):  
International Law ◽  
Good Faith ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Basic Concepts ◽  
The Law ◽  
Insight Into ◽  
Freedom Of Navigation

The M/V “Norstar” case deserves serious consideration for four reasons. First, the M/V “Norstar” judgment of 2016 is the first judgment on preliminary objections in the jurisprudence of the International Tribunal for the Law of the Sea (ITLOS). The judgment shed some light on procedural issues concerning preliminary objections. Second, ITLOS, in its judgment of 2019, addressed the interpretation and application of Article 87 of the UN Convention on the Law of the Sea. In light of the paramount importance of the freedom of navigation, the Tribunal’s view on this matter merits particular attention. Third, the M/V “Norstar” case provides an insight into basic concepts of international law, such as acquiescence, estoppel, good faith, and abuse of rights. Fourth, the M/V “Norstar” case furnishes a precedent regarding reparation in international law. Thus, this chapter examines the M/V “Norstar” judgments on preliminary objections and the merits, respectively.

The Proceedings Concerning Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea

1996 ◽  
Vol 11 (2) ◽  
pp. 179-200 ◽  
Author(s):  
Tullio Treves
Keyword(s):  
Law Of The Sea ◽  
Financial Security ◽  
International Tribunal ◽  
State Party ◽  
Fish Stocks ◽  
The Law ◽  
Two Parameters ◽  
Fair Chance ◽  
Flag State

AbstractThe proceedings for the prompt release of vessels set out in Article 292 of the Law of the Sea Convention are independent from domestic as well as from other international proceedings. The dispute consists in a disagreement between the parties when a ship flying the flag of a State Party has been detained by another party in violation of the provisions of the Convention for prompt release of vessels upon posting of bond or other financial security. These provisions are Articles 73(2), 220(6) and 220(7), and 226(b) and (c). It is argued that the prompt release proceedings can be resorted to also when the vessel has been detained in contravention to a provision of the Convention prohibiting detention. This might make the proceedings relevant for detention in violation of the 1995 Convention on Straddling Fish Stocks. The proceedings start with an application for release, which may be submitted by the flag state or on its behalf, and have to meet two requirements: reaching a decision expeditiously and ensuring that both parties have a fair chance to present their case. The case will in principle be heard by the full Tribunal even though it may be expedient to formulate rules that permit a Chamber to hear it, without jeopardizing the applicable principles. A hearing is the fulcrum of the proceedings. The decision of the Tribunal-which seems to meet the requirements of a "judgment"-brings the proceedings to a close. The decision shall be final. The detaining state is bound to release the vessel promptly as soon as a bond or other financial security has been posted by the flag state. The decision is also binding as to the reasonableness of the bond or security. In determining whether a bond or security is reasonable two parameters seem essential: the value of the vessel and the amount of the damage or of the monetary penalties claimed. Other elements may, however, be relevant. They may be different according to which rule of the Convention concerning prompt release has been violated. An administrative phase comes after the decision on prompt release. It concerns the utilization of the bond or security.

scholarly journals Observations on Vessel Release under the United Nations Convention on the Law of the Sea

1996 ◽  
Vol 11 (2) ◽  
pp. 201-215 ◽  
Author(s):  
Bernard H. Oxman
Keyword(s):  
United Nations ◽  
Dispute Settlement ◽  
Law Of The Sea ◽  
International Tribunal ◽  
German Government ◽  
International Obligations ◽  
Additional Procedure ◽  
United Nations Convention ◽  
The Law ◽  
Flag State

AbstractIf a foreign ship is detained by a coastal or port state, the flag state may contest the legality of the detention and submit the case to a court or tribunal having jurisdiction under the general dispute settlement provisions of the Convention. Article 292 sets up a more circumscribed, additional procedure for vessel release. It does not entail the submission of a dispute on the merits to a court or tribunal for judgment. The matter must be dealt with "without delay". Articles 294 and 295 are arguably not relevant. Local proceedings are unaffected and local remedies need not be exhausted. Application can be made "by or on behalf" of the flag state. The text provides an alternative. The words "on behalf of" present an option that is not already provided by the word "by". Therefore, these words should be understood to permit the flag state to dispense with the need for official communication from its government in connection with each application for release, such as is necessary for an application "by" the flag state. Instead, the state may designate in advance natural or judicial persons (e.g. owners or operators), who are authorized to bring applications for release on its behalf. Since no application for release "on behalf of the flag State" may be made against its will, the flag state may change, qualify or withdraw its designations at any time. While there is no doubt that the German Government will permit parties before the Tribunal to be represented by counsel of their choice, without regard to the country in which counsel is licensed to practise law, the question remains whether foreign counsel will be permitted to maintain an office in Hamburg even when they are not working on a case before the International Tribunal for the Law of the Sea. This is, however, less a question of Germany's international obligations, than a question of whether Germany wishes to promote the idea that Hamburg is a global centre for legal activity related to the Law of the Sea.

Dispute Settlement in the Law of the Sea: Survey for 2019

2020 ◽  
Vol 35 (4) ◽  
pp. 621-659
Author(s):  
Robin Churchill
Keyword(s):  
Dispute Settlement ◽  
Law Of The Sea ◽  
Arbitral Tribunal ◽  
International Tribunal ◽  
Sao Tome And Principe ◽  
The Law ◽  
Flag State ◽  
High Seas

Abstract This is the latest in a series of annual surveys in this Journal reviewing dispute settlement in the law of the sea, both under Part XV of the UN Convention on the Law of the Sea and outside the framework of the Convention. It covers developments during 2019. The most significant developments concerned the International Tribunal for the Law of the Sea (ITLOS). It delivered its judgment in the M/V Norstar (Panama v. Italy) case (concerning bunkering on the high seas and the scope of non-flag State prescriptive jurisdiction over vessels); made two provisional orders – in the Detention of Three Ukrainian Naval Vessels (Ukraine v. Russia) and San Padre Pio (Switzerland v. Nigeria) cases, both concerned with the alleged unlawful seizure and detention of ships; and was seized of two new cases. In addition, an arbitral tribunal made an award of reparation in the Duzgit Integrity (Malta v. São Tomé and Príncipe) case.

‘Reasonableness’ in the Law of the Sea: The Prompt Release of the Volga

2003 ◽  
Vol 16 (3) ◽  
pp. 621-630 ◽  
Author(s):  
CHESTER BROWN
Keyword(s):  
Russian Federation ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Coastal State ◽  
Illegal Fishing ◽  
Financial Conditions ◽  
The Russian Federation ◽  
The Law ◽  
Good Behaviour ◽  
Flag State

The jurisdiction of the International Tribunal for the Law of the Sea to hear applications for the prompt release of vessels and crew was recently invoked by the Russian Federation against Australia in the Volga case. In determining whether the bonding arrangements set by Australia were ‘reasonable’ under Article 73(2) of UNCLOS, the Tribunal clarified several issues regarding prompt release applications, and most significantly, held that non-financial conditions and ‘good behaviour bonds’ were not permissible. In rendering its decision, the Tribunal adhered to the ‘guiding criterion’ of balancing the interests of the flag state and coastal state in determining the reasonableness of the bond. It is submitted that this test is inappropriate, and that this decision will create difficulties for coastal states seeking to control illegal fishing.

The Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea: A Preparatory Report

1996 ◽  
Vol 11 (2) ◽  
pp. 147-164 ◽  
Author(s):  
Rainer Lagoni
Keyword(s):  
Law Of The Sea ◽  
Financial Security ◽  
International Tribunal ◽  
International Court ◽  
The Law ◽  
Flag State

AbstractThe Convention provides in Article 292 special proceedings for the prompt release of vessels and crews before the International Tribunal for the Law of the Sea. As Article 292 is compulsory between the States Parties to the Convention, it can only be excluded by agreement. The new obligations and proceedings will balance the interests of the detaining state against that of the flag state in avoiding an excessive detention of vessels flying its flag. In an application for the release of a detained vessel, the flag state has to allege "that the detaining state has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or financial security". Only states may be parties to the prompt release proceedings. Each party shall be represented before the Tribunal by an agent. It is exclusively within the discretion of the flag state whom it will authorize to act as its agent. The flag state may define preconditions for a submission of an application for release on its behalf and remains in control of the release proceedings, because it is free to instruct the agent to abstain from the submission or to withdraw it. Like in any other proceedings before an international court or tribunal, the parties may have the assistance of counsel or advocates. The Tribunal shall determine the release as well as the nature, terms and amount of a reasonable bond or other financial security. In cases of lack of seaworthiness, where the question of bonding or other financial security is of no relevance, it may decide merely on the naked release.

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