Case study “B” – International Tribunal for the Law of the Sea

Responsibilities and obligations of States sponsoring persons and entities with respect to
activities in the Area

Discussion

Part I - Introduction

1. How does this request for an advisory opinion reach the Seabed Disputes
Chamber (SDC) of ITLOS? What are the main procedural steps between the
presentation of the request and the issuance of the advisory opinion?
Different kinds of entities intervene in the advisory proceedings: how can
their contribution be described?
How does this request reach?
-On 10 April 2008, the Authority received two exploration plan applications from Nauru Ocean
Resources Inc. (sponsored by the Republic of Nauru) and Tonga Offshore Mining Ltd. (sponsored by the
Kingdom of Tonga).
- These applications were submitted to the Legal and Technical Commission, which postponed
consideration following a request from the applicants on 5 May 2009.
- In March 2010, the Republic of Nauru proposed seeking an advisory opinion from the Chamber on
specific questions concerning responsibility and liability of sponsoring States.
What are the main procedural steps bt presentation and issuance?
Presentation of the request: Notification to States Parties, Notification to the United Nations Secretary-
General, Invitation for Written Statements, Order for Oral Proceedings, Submission of Written
Statements, Transmission and Accessibility of Written Statements, Submission by Non-Governmental
Organizations.
Issuance of advisory opinion: the procedural steps involve legal questions submission, advisory function
execution, decision-making, and ensuring independence and impartiality in issuing advisory opinions to
assist the Council in governing activities in the Area.
Contribution of different kinds of entities?
1. The Chamber:
- Part of the Tribunal with exclusive function of interpreting Part XI of the Convention.
- Acts independently and impartially, assisting the Authority's organs.
- Provides advisory opinions on legal questions submitted by the Assembly and the Council.
- Engages in the settlement of disputes related to activities in the Area.
2. The Assembly and the Council:
- Seek assistance from the Chamber for legal questions related to their activities.
- Central organs of the Authority overseeing the organization and control of activities in the Area.
 3. The International Authority:
- Established by the Convention to organize and control activities in the Area.
- Relies on the Chamber for proper interpretation and implementation of regulations governing
activities in the Area.
4. States:
- Have responsibilities and obligations in relation to activities in the Area.
- Bound by provisions of Part XI of the Convention and the 1994 Agreement.

2. How can the SCD be defined? What is the difference between jurisdiction of
the SDC and admissibility of the claim? How are these two issues dealt in
the advisory opinion?
Definition: The Seabed Disputes Chamber is a specialized chamber within the International Tribunal for
the Law of the Sea (ITLOS) that specifically deals with disputes arising from the interpretation or
application of international agreements related to the exploration and exploitation of natural resources
on the seabed beyond national jurisdiction.
Difference bt jurisdiction of SCD and admissibility of the claim: The jurisdiction of the Seabed Disputes
Chamber (SDC) refers to its authority to give advisory opinions at the request of the Assembly or the
Council on legal questions arising within the scope of their activities. The conditions that need to be
met in order to establish jurisdiction are set out in article 191 of the Convention. On the other hand,
admissibility refers to whether the Chamber has the discretion to decline a request for an advisory
opinion once jurisdiction has been established. The text discusses the difference in wording between
article 191 of the Convention and article 65 of the Statute of the ICJ in this regard, but ultimately, the
Chamber decides to render the advisory opinion requested by the Council without further
consideration of admissibility.

3. What information is provided in the advisory opinion on applicable law,

procedural rules and interpretation techniques with regard to the case at
stake?
The advisory opinion provides information on the applicable law and procedural rules with regard to the
case at stake. It specifies that the Chamber will apply the Convention, other rules of international law not
incompatible with the Convention, the rules, regulations, and procedures of the Authority, and the terms of
contracts concerning activities in the Area. The advisory opinion also mentions the interpretation
techniques to be used, specifically referring to the rules on the interpretation of treaties as set out in the
Vienna Convention on the Law of Treaties. It highlights the importance of interpreting the provisions of the
Convention and the 1994 Agreement in a multilingual context, where the Arabic, Chinese, English, French,
Russian, and Spanish texts are all equally authentic. The advisory opinion further interprets key terms used
in the relevant provisions of the Convention, such as the meaning of "responsibility" and "liability" in
different language versions, to clarify their intended obligations and consequences in the context of the
case.

Part II – Question 1

4. What is the subject of the first question raised in the context of the advisory
opinion proceedings?
What are the legal responsibilities and obligations of States Parties to the Convention with respect to the
sponsorship of activities in the Area in accordance with the Convention, in particular Part XI, and the 1994
Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the
Sea of 10 December 1982?

5. Definitions play a very important role in this advisory opinion: what terms
are expressly defined by the SDC and how?

• Activities in the Area: Defined in article 1, paragraph 1 (3) of the Convention as "all activities of
exploration for, and exploitation of, the resources of the Area."

• Resources: Defined in article 133 (a) of the Convention as "all solid, liquid, or gaseous mineral
resources in situ in the Area at or beneath the seabed, including polymetallic nodules."

• Exploration and exploitation: Defined in the Nodules Regulations and the Sulphides Regulations.
Exploration includes searching for deposits, testing of collecting systems and equipment, and
analysis of deposits. Exploitation includes recovery of minerals, extraction of minerals, and
construction and operation of mining, processing, and transportation systems.

• Shipboard processing: Considered as part of "activities in the Area" according to Annex III, article
17, paragraph 2(f) of the Convention.

• Processing: Excluded from the notion of "activities in the Area" as per Annex IV, article 1, paragraph
1 of the Convention.

• Transportation: Transportation within the part of the high seas superjacent to the Area is included
in "activities in the Area" when directly connected with extraction and lifting, but transportation to
points on land is excluded.

6. What are, according to the SDC, the “responsibilities and obligations” of

sponsoring States in this context?

1. The responsibility to ensure that activities in the Area are conducted in conformity with the
relevant provisions of the Convention.
2. The obligation to assist the Authority in controlling activities in the Area to ensure compliance with
relevant provisions.
3. The obligation to apply a precautionary approach and best environmental practices to protect the
marine environment.
4. The obligation to guarantee financial and technical capability for compliance with emergency
orders by the Authority.
5. The obligation to ensure the availability of recourse for compensation in case of damage caused by
pollution of the marine environment.
These obligations are to be met through the adoption of laws, regulations, and administrative measures
within the sponsoring State's legal system. Failure to meet these obligations could result in liability for the
sponsoring State.

7. What are, according to the SDC, the “direct obligations” of sponsoring States
in this context? What is the difference between direct and other (indirect?)
obligations?

Direct obligations are obligations that sponsoring States must comply with independently of their
obligation to ensure certain behaviour by the sponsored contractor. Direct obligations include assisting the
Authority in controlling activities in the Area, applying a precautionary approach, implementing best
environmental practices, ensuring guarantees in the event of an emergency order by the Authority,
providing recourse for compensation in case of damage caused by pollution, and conducting environmental
impact assessments. These obligations are specific and must be directly fulfilled by the sponsoring States.

Indirect obligations may arise as a result of failing to comply with direct obligations. For example, if a
sponsoring State fails to assist the Authority in controlling activities in the Area, it may indirectly lead to
damage to the marine environment, which then triggers the obligation to provide recourse for
compensation for the damage caused. Indirect obligations are consequences that stem from failing to fulfil
direct obligations.

Part III – Question 2

8. What is the subject of the second question raised in the context of the
advisory opinion proceedings?

What is the extent of liability of a State Party for any failure to comply with the provisions of the
Convention in particular Part XI, and the 1994 Agreement, by an entity whom it has sponsored under
Article 153, paragraph 2(b), of the Convention?

9. How is the question of liability and compensation dealt with by the SDC?
Liability: Liability for a sponsoring State in relation to deep seabed mining activities is governed by the
provisions of the Convention on the Law of the Sea and related instruments. The sponsoring State may
be held liable for damages caused by its failure to carry out its responsibilities under the deep seabed
mining regime. The liability arises from the sponsoring State's own failure, rather than the failure of the
sponsored contractor. A causal link between the failure of the sponsoring State and the damage caused
must be established in order for liability to arise. The sponsoring State may be exempt from liability if it
has taken all necessary and appropriate measures to secure effective compliance with the relevant
provisions. The rules on liability for sponsoring States are in line with customary international law on
State responsibility.

Compensation: The establishment of a trust fund could help address situations where the contractor is
unable to fully meet their liability for damages caused during deep seabed mining activities. This fund
 could provide a mechanism for ensuring that adequate compensation is available to cover any gaps in
liability, without placing additional burdens on sponsoring States. Ultimately, the question of
compensation is addressed through a combination of contractual obligations, international law
principles, and potential mechanisms such as a trust fund to ensure that damages are adequately
compensated for in the event of any wrongful acts during deep seabed mining activities.

10.The issue of scope of liability is analyzed with particular care: what is the
essence of the reasoning of the SDC in this respect?

The Chamber holds that the sponsoring States under article 139, paragraph 2 of the Convention and
related provisions share joint and several liability in the event of multiple sponsorship unless otherwise
provided in the Regulations issued by the Authority. This ensures that the injured party can seek full
compensation from any of the responsible sponsoring States and promotes effective recourse for
damages caused by activities in the Area.

Part IV – Question 3

11.What is the subject of the third question raised in the context of the
advisory opinion proceedings?
What are the necessary and appropriate measures that a sponsoring State must take in order to fulfil
its responsibility under the Convention, in particular Article 139 and Annex III, and the 1994
Agreement?

12.How is the third question replied to by the SDC?

The SDC replies to the third question by explaining the requirement for sponsoring States to
adopt laws, regulations, and administrative measures to ensure compliance by the contractor with
its obligations and to exempt the sponsoring State from liability. These measures must be in force
at all times when a contract with the Authority is in place and should cover the obligations of the
contractor even after the exploration phase is completed. The sponsoring State must act in good
faith and cannot rely solely on contractual arrangements with the contractor to fulfil its
obligations. Additionally, the laws and regulations of the sponsoring State must not be less
stringent than those adopted by the Authority or international rules and procedures, particularly
in relation to the protection of the marine environment. Specific details on the content of these
domestic measures are provided in various provisions of the Convention and related instruments.
 Case study “C” – International Court of Justice
Delimitation in the Black Sea (Romania v. Ukraine)

Discussion

Part I – Introductory aspects

1. What is the general background to the dispute and what are the main
peculiarities of the geographic setting relevant to the dispute?
The dispute between Romania and Ukraine arises from their inability to reach an agreement on the
delimitation of their continental shelf and exclusive economic zones in the Black Sea. Despite numerous
rounds of negotiations, the two states were unable to come to a mutually acceptable solution. The
geographic setting of the dispute is characterized by the presence of Serpents' Island, a natural feature
located approximately 20 nautical miles east of the Danube delta. The Black Sea, being an enclosed sea
connected to the Mediterranean Sea, presents unique challenges for maritime delimitation. The surface
area of the Black Sea is approximately 432,000 sq km, and it is bordered by several coastal states with their
own territorial seas and exclusive economic zones. Romania and Ukraine's dispute over the delimitation in
this area led Romania to bring the matter before the International Court of Justice in 2004.

2. Please describe, in general terms, questions relating to jurisdiction of the ICJ

and the law applicable by it, having regard to the subject matter of the case.

In summary, questions relating to jurisdiction of the ICJ and the applicable law in a case involving maritime
delimitation between Romania and Ukraine will primarily be determined by the provisions of UNCLOS,
particularly Articles 74 and 83. Any agreements between the Parties, such as the Procès-Verbaux and the
Additional Agreement, may be considered by the Court in reaching a decision on the delimitation, but
ultimately the Court will apply the relevant principles of international law, as set forth in UNCLOS and
established through jurisprudence. Declarations made by the Parties will be considered in accordance with
the provisions of the treaty and the Vienna Convention on the Law of Treaties.

3. Was there a maritime boundary between the two countries before the
institution of these proceeding?

the Court finds that there was an agreed maritime boundary between Romania and the USSR in 1949 which
followed the 12-mile limit of the territorial sea around Serpents' Island. However, this boundary did not
extend to delimiting the exclusive economic zone and continental shelf of the two countries. The Court has
interpreted the 1949 instruments and subsequent agreements to establish this conclusion. The Court has
also emphasized the importance of adherence to the provisions of UNCLOS in determining maritime
boundaries.
 4. Why is it important to precisely define the relevant coasts and the relevant
maritime areas?
Precisely defining the relevant coasts and maritime areas is essential for maintaining order,
stability, and fairness in the use and protection of marine resources and environments.

5. Please define, in general terms, how the ICJ proceeds to the delimitation of
the maritime areas pertaining to the two countries.
The ICJ takes into consideration various factors such as the geographical configuration of the coasts,
the length of the coasts of each country, and any relevant circumstances specific to the case. The Court
also considers the principles of equity and fairness in the delimitation process. Ultimately, the ICJ aims
to reach a solution that is equitable, fair, and takes into account the interests of both parties involved
in the dispute.

6. What are the different phases of such delimitation exercise?

• Establishing a provisional delimitation line using geometrically objective methods, such
as equidistance or median lines.
• Considering relevant circumstances that may call for adjustments to the provisional line
in order to achieve an equitable solution.
• Verifying that the final delimitation line does not lead to an inequitable result by
considering the ratio of coastal lengths and maritime areas of each State.

7. What is the role of the provisional equidistance line? How is it drawn?

The provisional equidistance line was formed by the merger of the Romania-Ukraine contiguous(kontiguis)
and reciprocal(risiprikıl) coasts equidistance lines, starting from the point of intersection of the territorial
waters determined by the Border Regime Agreement between the parties, and following the curve of the
territorial waters of Serpents Island.
It served as a reference point for both parties to work towards reaching a mutually acceptable agreement
on the delimitation of their respective maritime zones.

8. What is the role of the so-called “relevant circumstances”? What such

circumstances are evoked by the ICJ and what is their impact on the overall
delimitation exercise?

There are two circumstances in order to take the dispute to ICJ. First one, failure to reach an
agreement within a reasonable time lasting at least two years since the beginning of the
negotiations. The fact that the negotiations which started in 1998 January have remained
inconclusive after six years, fulfills the relevant circumstance. Latter, taking into force of the Border
Regime Treaty between two parties. This circumstance also was fulfilled. So there is no dispute
between the parties in terms of judicial power of ICJ.

But the contest of Ukraine is addressed to the scope of the said judicial power. Ukraine submits
that the outer limits of the territorial sea of states, even if they form part of the delimitation, are
not within the scope of the jurisdiction of the ICJ. Having evaluated the judicial power addressed to
the dispute, the ICJ conceded that it has no jurisdiction in the delimitation of territorial waters, but
 the Court It underlined that it would not prevent the use of the outer limits of the territorial sea in
the delimitation of the exclusive economic zone and continental shelf.

9. What is the relationship between the drawing of the delimitation line and
the so-called “disproportionality test”? Is the delimitation line final?

The purpose of delimitation is not to apportion equal shares of the area, nor indeed proportional
shares. The test of disproportionality is not in itself a method of delimitation. It is rather a means of
checking whether the delimitation line arrived at by other means needs adjustment because of a
significant disproportionality in the ratios between the maritime area which would fall to one party
or other by virtue of the delimitation line arrived at by other means, and the lengths of their
respective coasts. So, final stage is disproportionality test.
 UNIGE IELoS 2024
Prof. Lorenzo Schiano di Pepe ©

Case study “D” – Court of Justice of the EU

1) European Commission v. Ireland – Judgment of 30 May 2006

2) Commune de Mesquer v. Total France SA – Judgment of 24 June 2008

Discussion

Case 1

1. Please describe the behavior of Ireland which justifies the action taken by
the European Commission. What is the European Commission hoping to
achieve by its action? How would you define such action?

The behaviour of Ireland that justifies the action taken by the European Commission is the
institution of dispute-settlement proceedings against the United Kingdom of Great Britain and
Northern Ireland under the United Nations Convention on the Law of the Sea concerning the
MOX plant located at Sellafield. This action by Ireland is seen as a failure to fulfill its obligations
under Articles 10 and 292 of the Treaty on the Functioning of the European Union (TFEU) and
Articles 192 and 193 of the Euratom Treaty.

The European Commission is hoping to achieve compliance with EU law and international
agreements by taking action against Ireland. The Commission aims to ensure that Member
States fulfil their obligations under EU law and international agreements, in this case, the
United Nations Convention on the Law of the Sea. The action taken by the European
Commission can be defined as a legal procedure to enforce compliance with EU law and
international agreements, in this case, by bringing a case before the Court of Justice of the
European Union for a ruling on whether Ireland has failed to fulfil its obligations.

2. Is there a dispute “behind” the dispute? If so, which one?

The dispute "behind" the dispute between Ireland and the United Kingdom concerning the MOX plant
at Sellafield is whether the issue falls under the exclusive jurisdiction of the Court of Justice or can also
be addressed through the arbitration process under the Convention for the Protection of the Marine
Environment of the North-East Atlantic. Ireland believed that the dispute could be resolved through the
Arbitral Tribunal, while the Commission argued that it falls within the exclusive jurisdiction of the Court
of Justice. This issue of conflicting jurisdiction was a significant factor in the overall dispute between
the parties.
 3. How would you describe the legal framework (both under international law
and under EU law) applicable to the dispute? How does the definition of the
competences of the EU play a role in this controversy?

Under the United Nations Convention on the Law of the Sea (UNCLOS), a court or tribunal with jurisdiction
must apply the provisions of the Convention and other rules of international law not incompatible with the
Convention.
Additionally, under EU law, the competences of the EU play a role in this controversy. The definition of
competences of the EU is outlined in the EU treaties, which specify the areas in which the EU has the
authority to legislate and take action. The EU treaties also establish the principle of conferral, which means
that the EU only has the competences conferred upon it by the member states.
In this specific case, Annex IX of UNCLOS covers the participation of international organizations in the
Convention. It outlines the procedure for international organizations to become parties to the Convention
and the extent of their participation and rights and obligations. It also specifies that in the event of a
conflict between the obligations of an international organization under the Convention and its obligations
under its establishing agreement, the obligations under the Convention prevail.
Overall, the legal framework applicable to the dispute involves a combination of international law under
UNCLOS and EU law, particularly regarding the competences of the EU and its member states. The
definition of competences of the EU is crucial in determining the extent to which the EU can act in this
controversy and how its actions may be affected by international agreements such as UNCLOS.

4. What are the main provisions of UNCLOS relied upon by the ECJ for the
purpose of its decision and why?

5. Coming back to question no. 1 and the objective of the European

Commission, what is the ruling of the ECJ on the first head of complaint and
what are the main supporting arguments?

In its first head of complaint, the Commission submits that, by instituting the dispute-
settlement proceedings provided for under the Convention for the purpose of resolving its
dispute with the United Kingdom concerning the MOX plant, Ireland has failed to respect
the exclusive jurisdiction of the Court in regard to disputes concerning the interpretation
and application of Community law and has thereby breached Article 292 EC.

6. Coming back to question no. 1 and the objective of the European

Commission, what is the ruling of the ECJ on the second head of complaint
and what are the main supporting arguments?

By its second head of complaint, the Commission contends that the submission by Ireland
of instruments of Community law for interpretation and application by the Arbitral
 Tribunal amounts to a breach of Article 292 EC and, in regard to the measures relied on
which come within the ambit of the EAEC Treaty, a breach of Article 193 EA.

Case 2

7. What are the parties to this dispute? How does the dispute itself reach the
ECJ?
The parties are the commune (local municipality) of Mesquer in France and the Commission of the
European Communities. The case reached the European Court of Justice when the Commission of
the European Communities brought an action against France for failing to comply with its
obligations under EU law. The Commission initiated legal proceedings against France, alleging that
Mesquer had breached EU environmental legislation by allowing certain activities harmful to the
environment.

8. What are the main questions that the ECJ is required to solve?

‘1. Can heavy fuel oil, as the product of a refining process, meeting the user’s specifications and
intended by the producer to be sold as a combustible fuel, and referred to in [Directive 68/414] be
treated as waste within the meaning of Article 1 of [Directive 75/442] as … codified by
[Directive 2006/12]?
2. Does a cargo of heavy fuel oil, transported by a ship and accidentally spilled into the sea,
constitute — either in itself or on account of being mixed with water and sediment — waste falling
within category Q4 in Annex I to [Directive 2006/12]?
3. If the first question is answered in the negative and the second in the affirmative, can the
producer of the heavy fuel oil (Total raffinage [distribution]) and/or the seller and carrier (Total
International Ltd) be regarded as the producer and/or holder of waste within the meaning of
Article 1(b) and (c) of [Directive 2006/12] and for the purposes of applying Article 15 of that
directive, even though at the time of the accident which transformed it into waste the product
was being transported by a third party?’

9. How would you describe the legal framework (both under international law
and under EU law) applicable to the dispute?

10.What are the findings of the ECJ with regard to the first, second and third
questions? What are the main supporting arguments?

Findings of the ECJ regarding to first and second questions on the classification of substances as
waste under Directive 75/442. The designation of waste is determined by the actions of the holder
and the concept of 'discard'. Materials spilled or lost, even if accidentally, can be classified as
waste if they cannot be reused without processing. hydrocarbons accidentally spilled at sea and
causing pollution fall under the category of waste as they are not reusable without significant
processing, even if the spill occurred in an exclusive economic zone and later reached the coast.
The directive applies in such cases where the substances are deemed no longer capable of being
exploited or marketed without prior processing. Main arguments:
• Directive 75/442.
• ARCO Chemie Nederland
• Palin Granit

Findings of the ECJ regarding to third question on the application of Directive 75/442 in cases of
accidental spillage of hydrocarbons at sea causing pollution of the coastline of a Member State.
The seller of the hydrocarbons and the charterer of the ship may be considered as the producer of
the waste under the directive if they contributed to the pollution risk by failing to take preventive
measures. If the cost of waste disposal from such spillage is not covered by the Fund Convention
or the compensation ceiling is reached, the national law should ensure that the cost is borne by
the producer of the product responsible for the pollution, based on the 'polluter pays' principle.
However, the producer cannot be held liable unless they contributed to the pollution risk by their
actions. Main arguments that:
• Case of Commission and Ireland.
• Van de Walle.
• Directive 75/442.
• Fund Convention (The International Convention on the Establishment of an International
Fund for Compensation for Oil Pollution).
• Liability Convention.
• Case of Marleasing 1990.
 UNIGE IELoS 2024
Prof. Lorenzo Schiano di Pepe ©

Case study “E”

1) International Court of Justice, Australia v. Japan, New Zealand Intervening (Whaling in the
Antarctic) – Judgment of 31 March 2014

2) Court of Justice of the EU, Italy v. Council (Fishing Quota for Mediterranean swordfish) –
Judgment of 30 April 2019

Discussion

Case 1

1. What legal instrument is at stake in the dispute between Australia and

Japan? Please provide a general description thereof.

The legal instrument at stake in the dispute between Australia and Japan is the International
Convention for the Regulation of Whaling, which both countries are parties to. This regulation is to
provide for the proper conservation and management of whale populations. The primary objective
of the convention is to ensure the sustainable use of whale resources while protecting the marine
ecosystem. The convention also established the International Whaling Commission (IWC) as the
regulatory body responsible for overseeing whaling activities worldwide.

2. What are the main claims of Australia against Japan? What role is played by
the so-called JARPA II program?

Australia argues that Japan's JARPA II program is not for scientific research purposes as
required by Article VIII of the International Convention for the Regulation of Whaling (ICRW).
Australia alleges that Japan has breached its obligations under the ICRW by conducting
commercial whaling activities in violation of the moratorium on killing whales for commercial
purposes and by whaling fin whales in the Southern Ocean Sanctuary. Australia also claims
that Japan has violated the moratorium on the taking, killing, or treating of whales, except
minke whales, by factory ships or whale catchers attached to factory ships.

3. The parties do not agree on the existence of the jurisdiction of the ICJ: what
are the main arguments supporting their views and how is the point solved
by the Court itself?
The main arguments supporting Australia's view on the jurisdiction of the ICJ are that their
declaration of compulsory jurisdiction under Article 36 of the Court's Statute does not apply to
disputes concerning the delimitation of maritime zones, and that the dispute with Japan over
JARPA II does not involve delimitation but rather the interpretation of obligations under the
International Convention for the Regulation of Whaling (ICRW). Australia contends that the
reservation in their declaration was intended to cover disputes involving maritime boundary
delimitation or disputes concerning the exploitation of an area in dispute or adjacent to an area in
dispute.

On the other hand, Japan argues that the dispute between the Parties relates to the exploitation
of a maritime zone claimed by Australia or of an area adjacent to such a zone, which falls within
Australia's reservation. Japan interprets the reservation as covering disputes related to the
exploitation of areas in dispute pending delimitation and asserts that Australia's maritime claims
generate overlapping claims that render the reservation applicable.

The ICJ ultimately resolves this point by interpreting Australia's reservation in accordance with the
text of the declaration and the intention stated by Australia when making it. The Court determines
that the reservation only applies to disputes concerning maritime delimitation in areas with
overlapping claims or disputes relating to the exploitation of such areas or adjacent areas. Since
the dispute between Australia and Japan does not involve maritime delimitation, the Court rules
that Japan's objection to the Court's jurisdiction cannot be upheld. The Court emphasizes that the
nature and extent of the claimed maritime zones are immaterial to the dispute, which is focused
on whether Japan's activities under JARPA II comply with its obligations under the ICRW.

4. What particular provision is the subject of the Court’s thorough analysis?

What aspects of the provision are specifically taken into account? How can
the main findings of the Court be summarized?
The particular provision subject to thorough analysis in the dispute on whaling activities between
Australia and Japan is Article VIII of the International Convention for the Regulation of Whaling
(ICRW). This provision allows for states to issue permits for scientific whaling, with certain
conditions and limitations.

The Court specifically takes into account the interpretation and application of Article VIII,
considering factors such as the purpose and objectives of the provision, the necessity and
relevance of the scientific research, and the proportionality of the whaling activities to achieve
scientific goals.

The main findings of the Court can be summarized as follows:

• Japan’s whaling activities in the Southern Ocean under the guise of scientific research do
not meet the requirements of Article VIII of the ICRW
• Japan’s scientific research objectives could be achieved through non-lethal means, making
its lethal whaling activities unnecessary
• Japan’s whaling program is not proportionate to its stated scientific goals and therefore
does not fall within the scope of Article VIII
Overall, the Court ruled that Japan’s whaling activities in the Southern Ocean were not in
compliance with the ICRW and ordered Japan to cease its Antarctic whaling program.

5. According to the ICJ, is JARPA II compliant with Japan’s international law

obligations? Why so? There is no need to describe the program in detail but
rather on its principal characteristics in general terms and on the question
whether the design and implementation of JARPA II are reasonable in
relation to achieving the programme’s stated research objectives.
The ICJ ruled that JARPA II was not compliant with Japan's international law obligations under the
International Convention for the Regulation of Whaling. The court found that the scientific
research carried out under JARPA II did not meet the requirements for scientific research as set
out in the Convention, and that the whaling activities conducted under the program were in fact
commercial in nature. Additionally, the court found that Japan had not adequately considered
alternatives to lethal whaling in order to achieve its research objectives. Therefore, the ICJ
concluded that JARPA II was not in accordance with Japan's obligations under international law.

6. What is the conclusion that the Court derives from its findings?

The Court concludes that Japan's whaling activities in the Southern Ocean are not conducted for
scientific purposes as claimed, and therefore, are in violation of its obligations under the
International Convention for the Regulation of Whaling. Australia's complaint is upheld, and Japan
is ordered to cease its whaling activities in the Southern Ocean.

7. How would you describe the role played by science and scientific evidence
in the proceedings?

Science and scientific evidence have played a significant role in shaping the arguments and
outcomes of the dispute between Australia and Japan over whaling activities. Both parties have
utilized scientific research to support their positions and advocate for the protection of whale
populations and marine environments.

Case 2

1. What are the parties to the case and how would you describe the action
taken before the ECJ? What is the objective that the applicant purports to
achieve?

The parties involved are the Italian Republic as the applicant and the Council of the European Union as the
defendant. The action taken before the European Court of Justice (ECJ) is an action for annulment under
Article 263 TFEU, brought by the Italian Republic on 23 October 2017. The objective that the applicant
purports to achieve is to challenge Regulation (EU) 2017/1398, which fixed fishing opportunities for 2017,
specifically the total allowable catch (TAC) for Mediterranean swordfish.

2. What is the international and European Union law framework relevant to

the case?
The ICCAT Convention (International Commission for Conservation Atlantic Tuna)
The CFP Regulation (Common Fisheries Policy)

3. How are the pleas of the applicant structured? How are they dealt by the
Court?
In the case of Fishing Quota for Mediterranean swordfish, the applicant's pleas were structured
around the argument that the fishing quotas set by Italy and the EU Council were not in line with
scientific recommendations and were therefore unsustainable for the swordfish population. The
applicant argued that the quotas should be reduced in order to protect the swordfish population
and ensure its long-term sustainability.

The Court considered the arguments put forward by the applicant and ultimately ruled in their
favor. The Court found that the fishing quotas set by Italy and the EU Council were not based on
scientific evidence and were therefore in violation of EU regulations. As a result, the Court ordered
that the quotas be reduced to more sustainable levels in order to protect the swordfish
population.

4. What is, in your view, the strongest argument of the applicant?

The strongest argument of the applicant in this case is the assertion that the Council failed to comply with
Decision 86/238 and international acts by adopting the contested regulation based on an incorrect premiss.
The applicant argued that the Council believed it was obliged to adopt the regulation due to a decision on
allocation that had been annulled by the ICCAT, and that the Commission had informed Member States of
this fact. The applicant contended that the Council should not have adopted the regulation based on an
incorrect premiss and that the EU was not obliged to comply with proposals that were still in the process of
obtaining approval. This argument is strong because it raises questions about the legality and basis for the
Council's decision-making process in adopting the regulation.

5. Do you agree with the overall findings of the Court? If so, in whole or in
part?

Overall, the pleas of the applicant were dealt with by the Court in a favorable manner, with the
Court ruling in their favor and ordering that the fishing quotas be reduced to ensure the long-term
sustainability of the swordfish population in the Mediterranean.
* *
*
 UNIGE IELoS 2024
Prof. Lorenzo Schiano di Pepe ©

Case study “F”

1) European Court of Human Rights, Hirsi Jamaa and others v. Italy – Judgement of 23 February
2012

2) Court of Justice of the European Union, Sea Watch v. Ministero delle Infrastrutture e dei
Trasporti and others – Judgement of 1 August 2022

Discussion

Case 1

1. Please describe the facts giving rise to the case.

Hirsi Jamaa case arose from a group of Somalian and Eritrean migrants who attempted to
reach the Italian island of Lampedusa by sea in order to seek asylum in Europe. The migrants
were intercepted by the Italian authorities and were pushed back to Libya.

2. Which are the parties to the case?

The parties to the case of Hirsi Jamaa v. Italy were Hirsi Jamaa and 10 other Somali and Eritrean
nationals, who were represented by lawyers and non-governmental organizations. The defendant
in the case was Italy, represented by the Italian government.

3. What are the provisions of International, EU, domestic law relevant to the
case? What is the basis for the jurisdiction of the European Court of Human
Rights?

1. The Italian Navigation Code, which states that Italian vessels on the high seas are
considered to be Italian territory.
2. Bilateral agreements between Italy and Libya, which involve cooperation on maritime
patrols to combat clandestine immigration.
3. The 1951 Geneva Convention relating to the Status of Refugees, which prohibits the
refoulement of refugees to territories where their life or freedom would be threatened.
4. The 1982 United Nations Convention on the Law of the Sea, which outlines the duties of
flag States in relation to ships.
5. The 1979 International Convention on Maritime Search and Rescue, which requires Parties
to coordinate and cooperate in rescuing persons in distress at sea.
6. The Protocol against the Smuggling of Migrants by Land, Sea and Air, which upholds the
principle of non-refoulement.
 7. Resolution 1821 (2011) of the Parliamentary Assembly of the Council of Europe, which
emphasizes the obligation to save persons in distress at sea and respect their human
rights.
8. The Charter of Fundamental Rights of the European Union, which prohibits collective
expulsions and ensures protection from torture or inhuman treatment.
9. The Schengen Agreement, which aims to abolish controls at common frontiers and combat
illegal immigration.
10. Regulations and decisions of the European Union.

The European Court of Human Rights has jurisdiction over this case based on the European
Convention on Human Rights, to which Italy is a party. If the alleged violations of human rights
occurred within Italy's jurisdiction or control, the Court can hear the case and issue a judgment.

4. What is the position of the parties and the ruling of the ECHR on the subject
of the alleged violation of Article 3 of the European Convention on Human
Rights?

The position of the parties is that the prohibition of refoulement of refugees is a fundamental
principle of international refugee law and human rights law, including the European Convention
on Human Rights. It applies not only to refugees but also to individuals in need of complementary
protection. The prohibition extends to all forms of harm, including torture, inhuman or degrading
treatment, and persecution, and it applies extraterritorially, not just within the territory of a State.
The obligation of non-refoulement is an absolute one, and States must respect it in all
circumstances. Failure to protect individuals in need of international protection would constitute a
violation of the State's obligations under international law.

5. What is the position of the parties and the ruling of the ECHR on the subject
of the alleged violation of Article 4 of Protocol No. 4 to the European
Convention on Human Rights?

The prohibition of collective expulsion of aliens under Article 4 of Protocol No. 4 to the European
Convention on Human Rights is a fundamental human rights principle that applies
extraterritorially and is enforceable against States regardless of where and by whom the
immigration and border control operations are carried out. States have a duty to ensure that their
immigration and border control procedures are in accordance with human rights standards and to
hold themselves accountable for any human rights violations that may occur in the course of these
procedures.
 6. What is the position of the parties and the ruling of the ECtHR on the subject
of the alleged violation of Article 13 of the European Convention on Human
Rights?

The ECtHR found that the applicants were deprived of any effective remedy to lodge complaints
under Article 3 and Article 4 of Protocol No. 4. The Court emphasized the importance of access to
information and effective procedures for individuals subject to potentially irreversible removal
measures. The Court concluded that the lack of a remedy for the applicants to challenge their
return to Libya amounted to a violation of Article 13 of the Convention in conjunction with Article
3 and Article 4 of Protocol No. 4. The Court dismissed the Government's objection of failure to
exhaust domestic remedies.

Case 2

1. Please describe the main proceedings within which the request for a
preliminary ruling has arisen.

The main proceedings in Cases C-14/21 and C-15/21 concern activities relating to the search and
rescue of persons in danger or distress in the Mediterranean Sea carried out by humanitarian
organizations using ships. Several of these ships were subject to detention measures in Italian
ports at the time the requests for a preliminary ruling were made. The Tribunale amministrativo
regionale per la Sicilia (Regional Administrative Court, Sicily) requested the Court to determine the
cases under the expedited procedure provided for in Article 105 of the Rules of Procedure of the
Court of Justice due to the importance of these activities, especially during the summer months.
Although the President of the Court initially dismissed the request for expedited procedure, citing
that the circumstances did not justify it, he did acknowledge the particular circumstances of the
cases as justifying them being considered as a priority under Article 53(3) of the Rules of
Procedure. The cases involve actions pending before the Italian administrative courts against some
of the detention measures imposed on the ships involved in the search and rescue operations.

2. What questions are raised before the Court of Justice?

1. Question 1: The Court clarifies that Directive 2009/16 applies to private humanitarian
assistance ships despite being classified as cargo ships, and national legislation cannot limit
its applicability to commercial activities.
2. Questions 2, 3, 4: The Court determines that during inspections and additional inspections,
the port state can consider the activities of the ship, the discrepancy between activities
and certifications, and equipment adequacy for the actual number of persons on board.
The port State has the power to undertake additional inspections based on clear grounds
of danger.
3. Question 5: The Court rules that the port State can impose corrective measures if the ship
poses a danger, but cannot demand additional certificates or compliance beyond the ship's
classification. The port State must ensure that corrective measures are suitable, necessary,
and proportionate, and cooperation with the flag State is essential.
 3. What is the position of the parties and the ruling of the Court of Justice on
the first question raised?
The position of the parties was that Directive 2009/16 should apply to private humanitarian
assistance ships that are systematically used for non-commercial activities relating to search and
rescue operations at sea, regardless of their classification and certification as cargo ships by the
flag State. The Court of Justice ruled in favor of this position, interpreting the directive as applying
to such ships and precluding national legislation from limiting its applicability only to ships used
for commercial activities. The Court emphasized that the scope of the directive should be
interpreted broadly and that Member State bodies should give full effect to EU law, including
interpreting national legislation in a manner consistent with EU law. The Court held that the
directive's monitoring, inspection, and detention mechanism should cover all ships falling within
its scope, including private humanitarian assistance ships.

4. What is the position of the parties and the ruling of the Court of Justice on
the second, third, fourth and fifth questions raised?
The Court of Justice ruled on the second question that the systematic use of cargo ships for
search and rescue activities cannot be grounds for additional inspections unless there is clear
evidence of danger to persons, property, or the environment. On the third and fourth
questions, the Court ruled that during more detailed inspections, the port State can consider
the fact that ships classified as cargo ships are being used for search and rescue activities but
cannot demand different certificates. On the fifth question, the Court ruled that if ships are
found to pose a danger, the port State can impose corrective measures but cannot require
different certificates. The flag State must be informed and cooperate in finding appropriate
corrective measures.

5. Is the judgment of the Court of Justice decisive from the point of view of the
national court?
The judgment of the Court of Justice is legally binding on the national court .The national court
is required to interpret and apply EU law in accordance with the judgment of the Court of
Justice. Failure to do so could result in the national court being in breach of its obligations
under EU law.