State Responsibility for Interferences with the Freedom of Navigation in Public International LawSpringer Science & Business Media, 2007 M10 25 - 286 pages 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. |
Contents
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25 | |
26 | |
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 |
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29 | |
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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State Responsibility for Interferences with the Freedom of Navigation in ... Philipp Wendel No preview available - 2009 |
Common terms and phrases
8bis adopted AJIL application Arbitration authorization award bilateral cargo claim compensation claimant coastal Commentary on Art concerning Conference customary international law diplomatic protection draft articles droit international drugs embargo enforcement European Fish Stocks Agreement flag freedom of navigation Furthermore high seas hot pursuit Human Rights Ibid ICJ Reports IMCO IMO Doc Int’l interferences with navigation International Convention International Law Commission International Organization international tribunal Intervention Convention issue Judgment jurisdiction law of naval Law of Treaties lawful conduct Legal Committee Leiden liability for lawful Lloyd’s List LOSC loss M/V Saiga Malacca Straits maritime transport Migrant Smuggling Protocol naval warfare nevertheless Nijhoff parties PCIJ piracy pirate pollution port principle private entities Proliferation Security Initiative proposed public international law reprinted in Yearbook RIAA rules Sea Convention Security Council seizure Session shipowner territorial sea terrorist tion trade travaux préparatoires U.S. dollars United Kingdom United Nations Convention unlawful VCLT violation
Popular passages
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.