State Responsibility for Interferences with the Freedom of Navigation in Public International Law

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Springer Science & Business Media, 2007 M10 25 - 286 pages
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A multitude of conventions in the area of the Law of the Sea contains provisions on the issue of compensation for (wrongful) interferences with navigation. Even though interferences by warships and coast guard vessels, due to a perceived increased risk of international crimes at sea, seem to have become more frequent, the compensation provisions have hardly been applied. The book analyses all relevant compensation provisions and compares them to the general law of state responsibility. This necessarily includes a discussion of issues like the responsibility of international organizations, liability for lawful conduct and several and joint liability in public international law.

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Contents

3 Joint and several liability?
135
II Interdictions within the framework of International Organizations
139
1 The scope of interferences involving International Organizations
140
2 Responsibility of the international or regional organization?
143
a The United Nations
144
b Regional organizations enforcing embargoes on the seas
146
c Operation Enduring Freedom
148
d Conclusion
149

2 Potential economic impact of terrorist attacks on maritime trade
28
3 Preventive and repressive measures to combat maritime terrorism
29
b Interception operations
32
III Undocumented Migration
36
IV Narcotic drugs and psychotropic substances
39
V Illegal fishing
44
VI Pollution
47
VII Fading away and backup grounds for interferences
49
C Legal limits for interferences and the role of State responsibility
51
Principles drawn from the treaty provisions on State responsibility for interferences with navigation on the high seas
56
A Treaty interpretation
58
I Interpretation of the wording
59
II Interpretation of the context
61
III Object and purpose
63
IV A hierarchy of methods under Art 31 VCLT
64
V Supplementary means of interpretation
65
B An individual right to claim compensation?
67
I The ordinary meaning of the relevant provisions
68
II Context
70
2 The conventions succeeding the Law of the Sea Convention
71
3 Subsequent practice
72
4 Rules of general international law
75
5 Invocation of State responsibility by private entities in maritime matters
79
6 The primary right affected by the interference
84
b The relevance of the right to property
88
7 Conclusion
91
III Object and purpose
93
IV Preparatory work
94
2 The Intervention Convention
97
3 The Straddling Fish Stocks Agreement
101
4 The Migrant Smuggling Protocol
104
5 The 2005 Protocol to the SUA Convention
106
V Conclusion
111
requirement of wrongfulness?
112
I Art 110 para 3 LOSC the prototype of liability for lawful conduct in the Law of the Sea
113
II Hot pursuit under Art 111 para 8 LOSC
115
III The seizure of pirate ships under Art 106 LOSC
116
IV Interferences under the Intervention Convention
118
V Liability for interfering with the navigation of fishing vessels under the Fish Stocks Agreement
120
VII Terrorism interdiction operations under the 2005 SUA Protocol
122
VIII The effect of the special nature of the compensation provisions
123
IX Conclusion
125
D Responsibility for attempted interferences
126
E The liable entity particularly in situations of multilateral boardings
127
I Bilateral boardings
128
2 The principles in the general law on State responsibility
130
b Participation
132
1 Aid and assistance
133
3 Vicarious liability for internationally lawful conduct?
134
4 The applicability of the compensation provisions to International Organizations
153
5 Conclusion
156
II The limited reception of the doctrine in international maritime conventions
161
III Contributory negligence in the general law on State responsibility
162
IV Contributory negligence in cases codified by maritime conventions
164
G Consensual boardings
165
H The extent of responsibility
170
2 Qualification of the damage
173
b Any damage harm or loss
175
II The provisions and the general law on State responsibility
176
III Types of damages which may be claimed and their calculation
179
2 Expected profits
182
3 Value of the vessel and cargo
184
4 Detention and mistreatment of the crew
186
5 Punitive damages
189
6 Interest
192
a Starting date
193
b When does the interest stop to run?
195
7 Currency of the compensation
196
8 Damage to the flag state
197
9 Costs and expenses
198
10 The ability of the respondent State to compensate
199
distinction between disproportionate and proportionate damages?
200
J Some procedural issues
203
II Competing claims of protection
207
III An obligation to forward the compensation award to the victim?
210
The US strategy 28 bilateral treaties and the Proliferation Security Initiative
215
A The 1924 Liquor Treaties
216
B The 1981 Exchange of Notes
217
C Bilateral antidrugs and migration agreements
219
I Shipboarding
222
II Shipriders
223
III Entrytoinvestigate and pursuit
224
IV Conclusion
225
E Ship Boarding Agreements within the framework of the Proliferation Security Initiative
227
F United States law on State Liability
229
Compensation for interferences in international conflicts
233
I Three views concerning the legality of visit and search of neutral vessels in times of war
234
II Compensation under the traditional law of naval warfare
236
III Liability under the San Remo Manual
241
IV The restrictive view and its consequences for State responsibility
242
VI Conclusion
244
Conclusions and outlook
249
B Outlook to the future of the liability regime concerning interferences with navigation on the high seas
251
Relevant compensation provisions
253
Bibliography
255
Table of cases
279
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Page 246 - If preventive or enforcement measures against any state are taken by the Security Council, any other state, whether a Member of the United Nations or not, which finds itself confronted with special economic problems arising from the carrying out of those measures, shall have the right to consult the Security Council with regard to a solution of those problems.
Page 70 - Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft, for any loss or damage caused by the seizure.
Page 253 - Where a ship has been stopped or arrested on the high seas in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained.
Page 82 - A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
Page 47 - These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas.
Page 17 - Piracy consists of any of the following acts: 1. Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed...
Page 81 - States shall be liable for damage or loss attributable to them arising from measures taken pursuant to section 6 when such measures were unlawful or exceeded those reasonably required in the light of available information. States shall provide for recourse in their courts for actions in respect of such damage or loss.
Page 48 - Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 or of any amendment or protocol thereto.
Page 74 - The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship.

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