law of the sea

The sudden news of the passing of my dear friend and colleague, Dr. David Caron, fills me with sad thoughts and happy memories.

Years ago, when I was starting out in international law, David – then a chaired professor at Berkeley, the law school an hour’s drive from my own – was a pillar of support. He was the 1st scholar to accept my invitation to speak at the 1st conference I organized, anchoring debate on “Reconstruction after Iraq” and publishing in our Cal-Davis journal an important analysis of claims commissions as a transitional justice tool.

Warm and witty, David once sent me a handwritten note of thanks for the “lovely bouquet” of pre-tenure reprints he’d received from me.

Both of us transplants from Back East, David and I shared an enthusiasm for California and enjoyed helping to cultivate a close-knit Left Coast international law community – even as we took part in events and activities across the globe.

David’s achievements truly are too numerous to mention. Among many other things, he was an inspiring President of the American Society of International Law, from 2010 to 2012. About the time he completed that term, he took emeritus status at Berkeley, and he and his wife, Susan Spencer, embarked on new adventures – 1st as Law Dean at King’s College London.  (A distinguished international arbitration specialist (see GAR obituary here), he had practiced at London’s 20 Essex Street Chambers since 2009. David, a proud graduate of the U.S. Coast Guard Academy, also was a noted expert on the law of the sea.) In 2016, he was appointed a member of  the Iran-United States Claims Tribunal.

It was in this last capacity that I last saw David. The Global Governance Summer School sponsored by my current institution, the Dean Rusk International Law Center at the University of Georgia School of Law, brought us to The Hague not many months ago. The highlight of our legal-institution briefings was the half-day we spent as David’s guests in the lovely mansion that houses this 37-year-old claims tribunal. With breaks for tea and biscuits – David was ever the gracious host – our students were treated to a candid discussion between David and Dr. Hossein Piran, Senior Legal Adviser. The two had served as tribunal law clerks years earlier, and the respect they showed one another provided an invaluable lesson about the promise of civil discourse and of the pacific settlement of international disputes.

That lesson is a most fitting way to commemorate David’s passing.

Pictured above, during our June 2017 visit to the Iran-U.S. Claims Tribunal, front from left: Ana Morales Ramos, Legal Adviser; Hossein Piran, Senior Legal Adviser; Kathleen A. Doty, Director of Georgia Law’s Dean Rusk International Law Center; David Caron, Tribunal Member; and Georgia Law Professor Diane Marie Amann, Faculty Co-Director of the Dean Rusk International Law Center. Back row, students Nicholas Duffey, Lyddy O’Brien, Brian Griffin, Wade Herring, Jennifer Cotton, Evans Horsley, Casey Callaghan, Kristopher Kolb, Nils Okeson, James Cox, and Ezra Thompson.

arcsunShould nongovernmental organizations be friends of intergovernmental courts? Put another way, is there a role for the NGO amicus curiae in tribunal that states have set up to deal with international disputes?

These are questions that Western Ontario Law Professor Anna Dolidze explores these questions in her just-published, information-filled American Society of International Law Insight, “The Arctic Sunrise and NGOs in International Judicial Proceedings.”

Dolidze’s news hook is The “Arctic Sunrise” Case (Kingdom of the Netherlands v. Russian Federation), filed in late November with the Hamburg-based International Tribunal for the Law of the Sea. At issue was the seizure of Arctic Sunrise, Dutch-flagged ship owned by Greenpeace International, an NGO that, in its own words, “acts to change attitudes and behaviour, to protect and conserve the environment and to promote peace.” During a protest at the offshore oil rig Prirazlomnaya, Russia had seized the boat and detained its crew members on criminal charges. (credit for 2007 photo of the ship) They were not released till very recently.

While the matter was pending, Russia declined to appear before the law of the sea tribunal – though it did object to a Greenpeace petition to file an amicus brief due, Dolidze reports, “to the ‘non-governmental nature’ of the submitting organization.” The tribunal thus kept the brief out of the case file, even though its members and the parties were able to review the document. Dolidze’s Insight underscores the tension in this resolution, given Russia’s nonappearance, on the one hand, and the direct effect of the dispute on Greenpeace, on the other hand.

The Insight tracks other tribunals’ varied treatment of such petitions. Among the most restrictive is the International Court of Justice, another tribunal in which only states may litigate contentious cases; Dolidze cites ICJ Practice Direction XII, which handles amicus briefs much as ITLOS did in Arctic Sunrise. Among the most expansive is the Inter-American Court of Human Rights’ rule 41, which accepts such briefs within a specified timeline. Others – the European Court of Human Rights, the World Trade Organization dispute mechanisms, and the International Criminal Court – are in between. In sum, Dolidze writes:

‘Procedures allowing NGO amicus curiae briefs are currently more a norm than an exception in international judicial proceedings.’

Not all agree this is a good thing. Dolidze points to a 2007 article in which Melbourne Law Professor Robin Eckersley favored NGO participation for its “potential of creating a transnational space for dialogue.” But she also  quotes Arizona State Law Professor Daniel Bodansky’s 1999 caution that amicus litigation by nongovernmental organizations ought not to be conflated with public participation. Dolidze sees in the Greenpeace matter a timely opportunity to revive this debate.

shipsRomantic allusions to Years Before the Mast aside, working aboardship is hard labor. That work gained more protection today, as the Maritime Labour Convention of 2006, aimed “to secure the right of all seafarers to decent employment,” entered into force.

Promulgated within the framework of the International Labour Organization, the convention collects rights and norms contained in many earlier treaties. MLC 2006, as it’s been dubbed, complements 3 treaties advanced within the framework of another intergovernmental entity, the International Maritime Organization. These 3 are; SOLAS, the 1974 International Convention for the Safety of Life at Sea; MARPOL, the 1973 International Convention for the Prevention of Pollution from Ships; and STCW, the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers. (photo credit)

In Article III of the newly-in-force Maritime Labour Convention, member states pledge to respect 4 “fundamental rights”:

► “freedom of association and the effective recognition of the right to collective bargaining”
► “elimination of all forms of forced or compulsory labour”
► “effective abolition of child labour”
► “elimination of discrimination in respect of employment and occupation”

Article IV, meanwhile, proclaims that each member state “shall ensure, within the limits of its jurisdiction,” what’s been called a seafarers’ “bill of rights” –  rights to:

► “a safe and secure workplace that complies with safety standards”
► “fair terms of employment”
► “decent working and living conditions on board ship”
► “health protection, medical care, welfare measures and other forms of social protection”

Entry into force followed upon the recent ratification by a 48th state, the United Kingdom. The United States has not ratified, but 3 out of 5 permanent members of the Security Council have (France and Russia as well as Britain). Eight of the top 10 flag states – leaders in the registry of ships – also have joined: Bahamas, Cyprus, Greece, Liberia, Malta, Marshall Islands, Panama, and Singapore. (China and Hong Kong are the 2 leaders not listed.) Other ratifying states include island countries as large as Australia and as small as Barbados, and landlocked lands like Switzerland.