Posts Tagged UNCLOS

Andrew Burness v Saipem SpA. Cyprus SC considers jurisdiction in the EEZ, and forum non conveniens.

Thank you  Elias Neocleous & Co  for reporting Andrew Burness v Saipem SpA, in which the Cypriot Supreme Court confirmed jurisdiction over claims related to Cyprus’ Exclusive Economic Zone (under UNCLOS), and rejected application of forum non conveniens. The claims followed an accident on board the vessel Saipem 1000 in the Cyprus EEZ.

The first issue is one under public international law, which I will leave to others. The second is an interesting application of forum non conveniens. Its application had been suggested for none of the parties are Cypriot nationals, neither were the witnesses, or any of the insurance and other companies involved. One assumes the card played was one of convenience, and costs. However the Supreme Court particularly emphasised that the accident had occurred in the process of prospection or exploitation of Cyprus’s natural resources: that makes the Cypriot courts particularly suited to hearing the case, despite the many foreign elements.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.14.5.`

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South East China Sea award puts wind in the sails of UNCLOS environmental provisions.

Most of the political attention to the panel’s award on the South East China Sea issue has gone to the implications for Chinese sovereignty in the area. That is in itself neither surprising nor problematic. It is worth highlighting however that 2 out of 6 of the Panel’s conclusions, as listed by Herbert Smith Freehills, relate to environmental protection:

  1. failed to protect and preserve the marine environment by tolerating and actively supporting Chinese fishermen in the harvesting of endangered species and the use of harmful fishing methods that damaged the fragile coral reef ecosystem in the South China Sea;
  2. inflicted severe harm on the marine environment by constructing artificial islands and engaging in extensive land reclamation at seven reefs in the Spratly Islands;

If one includes a third one, ‘interfered with the traditional fishing activities of Philippine fishermen at Scarborough Shoal;’ as being part of the principle of sustainable development, then half of the Chinese infringements relate to environmental protection in the wide sense. These findings highlight how closely linked environmental protection is to natural resources and to territory generally, and how environmental protection has come of age and is now part of core debates in public international law. Sadly also, of course, how in their search for scarce resources plenty of nations continue to trample freely on values which the 1992 Rio Declaration already found to essentially be part of customary international law.

A Monash student of mine is writing on the Panel report from the environmental angle and I shall share as and when that analysis is available.

Geert.

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Cour de Cassation rejects view of its own AG – Upholds jurisdiction over Erika disaster. Total to appeal to ECoHR.

Today the French Cour de Cassation upheld French jurisdiction over the Erika disaster, both from a criminal and a civil law point of view. It rejected the view of its Advocate General, on which I reported earlier. I have yet to read the judgment itself, however in a press release (not a standard procedure for the Court), the Court suggested it has several jurisdictional grounds to pick from, in both public international law, law of the Seas in particular, as well as international environmental law.

The court did not merely confirm the criminal convictions of Total, it also imposed civil liability which the Courts had earlier denied.

Total’s lawyers immediately announced a procedure with the European Court of Human Rights, however on what grounds is not immediately clear to me. (Postscript July 2014: I have indeed in the meantime seen no trace of such application).

Expect the judgment to become standard material in international environmental law classes. Students better dust their French.

Geert.

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