Lessons for PNG on the Precautionary Approach in experimental seabed mining

Papua New Guinea Mine Watch

Rakhyun Kim and Donald Anton | The Australian National University

The New Zealand decision under the EEZ Act teaches a number of lessons for other Pacific Island countries that have growing interests in deep seabed mining as a means of economic development.

Papua New Guinea (PNG), for instance, has garnered attention for issuing a commercial deep seabed mining license to a Canadian company Nautilus Minerals. Nautilus is supposed to begin the world’s first seabed mining operation on the PNG continental shelf in 2016 and, if successful, will prove the technical and economic viability of seabed mining.

Other Pacific Island developing countries are in the process of designing legal regimes to provide a favourable environment for foreign investment and satisfy those environmentally concerned.

The concern is that these early movers are operating on a set of untested assumptions, namely that seabed mining will raise a significant amount of revenue to stimulate national economic development…

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The 20th Anniversary of the International Seabed Authority

searchToday is the 20th Session of the meeting of the Assembly of the International Seabed Authority.  Twenty years ago on 16 November 1994, the United Nations Law of the Sea Convention entered into force.  By virtue of the provisions of the Convention the International Seabed Authority (ISA) was also called into being, having first been envisioned nearly twenty years earlier.  Here is a video taken today in the Assembly of former Ambassador Tommy Koh from Singapore giving the key note address to the ISA Assembly this morning.

 

Chevron v. Donziger – International Law Professors Amicus Brief: Round Two

On July 8, 2014 an eminent group of international law professors filed their second amicus curiae brief in the epic 20+ years litigation between indigenous Ecuadorians and Texaco/Chevron over environmental destruction and human rights breaches. The brief was lead by Professor Don Anton of the Australian National University, who is appearing as Counsel of Record in the United States Court of Appeals for the Second Circuit where the appeal will be heard.  More details can be found here.  A copy of the brief can be obtained here.

The appeal is this case is collateral to the successful main action by the Ecuadorians, which resulted in a multi-billion dollar judgment against Chevron.  Following the judgment in 2011, Chevron took preemptive action in U.S. Federal Court in order to try to block the recognition or enforcement of a multi-billion dollar Ecuadorian judgement against Chevron. Initially, Chevron obtains a preliminary injunction from the trial court that purported to be world wide in scope and to block any other court in the world from considering recognition or enforcement of the Ecuadorian judgement.  An appeal agains the injunction was made.  This same group of international law professor filed an amicus brief asserting that the injunction was in violation of international legal law and basic considerations of international comity.  The District Court was reversed and its purported worldwide preliminary injunctions was vacated.

In this new appeal, the amici international law professors address important international legal issues associated with the imposition of a worldwide constructive trust by the District Court in it final judgment. In imposing this radical trust for which there is no precedent, the District Court failed to correctly apply principles of international comity and to consider applicable international legal obligations binding on the United States. The amici believe that these failures have resulted in reversible error for the following four reasons.

First, the District Court’s worldwide equitable constructive trust is inconsistent with the Court’s decision in Chevron v. Naranjo, 667 F.3d 232 (2d Cir. 2011) because the impermissible extraterritorial impact of the constructive trust is identical to the impact of the preliminary injunction previously vacated by this Court. Second, the District Court erred in ordering relief that offends international comity. The District Court impermissibly attempts to impose its own terms of exclusive relief in the form of a constructive trust on every other court in the world. It seeks to dictate to the courts of the world what will happen if they recognize and enforce the underlying Ecuadorian judgment. This is an affront to: i) foreign courts that order the Ecuadorian judgment to be recognized and enforced; ii) foreign courts that cannot or would not pronounce on the systemic fitness of a foreign judiciary; and iii) foreign courts that must or might prefer to order different relief. Third, the District Court’s constructive trust cannot be enforced outside of the United States and is therefore an exercise in futility. Because equity will not do a vain or useless thing, the District Court should be reversed. Fourth, the District Court’s extraterritorial constructive trust breaches the international legal obligation of the United States not to intervene in the domestic and external affairs of other states. The extraterritorial application of the constructive trust directly intrudes in to the administration of Ecuadorian justice both internally and externally in places where its judgment might be recognized and enforced.

Elephants and Uganda

There have been  media reports lately on the controversial decision by High Court of Uganda allowing the release of a consignment of contraband ivory destined for China and UAE.  In a twist of events, the earlier decision allowing the release of the smuggled ivory has been halted in a decision delivered by Hon. Justice Kenneth Kakuru, JA.

By way of background, on 17 October 2013, the Uganda Revenue Authority (URA) seized ivory that was being smuggled into Uganda from the Democratic Republic of Congo. It is reported that URA confiscated 832 pieces of ivory. However, following the confiscation of the ivory the traffickers sought a court order from the High Court of Uganda to compel URA to release the ivory, which they claimed had been imported legally. The High Court ruled in their favor and ordered the ivory to be released for onward export. The URA then applied to the Court of Appeal for an interim order for stay of execution pending the hearing and determination of the substantive application for stay of execution. In his ruling Hon Justice Kenneth Kakuru upheld the application and stated that:

“I am also satisfied that there exists special circumstances for grant of stay of execution in this matter. The subject matter is a consignment of ivory said to have been impounded while in transit. It is clear therefore that if the said ivory is released to the respondent in compliance with the High Court order, that would render the appeal nugatory as the ivory is likely to be moved outside the jurisdiction of this Court.

“It is also very important to consider that the same consignment is a subject of criminal proceedings before the Anti-Corruption Division of the High Court where the ivory is required as an exhibit. If this application is not granted, the  said  criminal  proceedings  would  be jeopardized, as these  exhibits  are  likely  to be  removed  from the jurisdiction of that Court… the applicant has no pecuniary interest in the subject matter.

“Nonetheless the applicant has sufficient legal interest in the matter as a statutory body responsible for overseeing imports and exports of goods in this Country.

“For the reasons I have given I am  satisfied  that  the applicant  has proved  that special circumstances  exist which warrant  grant  of an order  of stay of execution  pending  appeal.”

The entire judgement follows:

THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION NO 62 OF 2014 ARISING OUT OF CIVIL APPLICATION NO. 61 OF 2014

(ARISING FROM HIGH COURT MISCELLANEOUS CAUSE NO 49 OF 2013)

COMMISSIONER CUSTOMS
UGANDA REVENUE AUTHORITY………………………….APPLICANT

VERSUS

KAYUMBA EMILE OGANE
T/A ETS OGANE COMPANY……………………………RESPONDENT

RULING OF
HON. JUSTICE KENNETH KAKURU (Single Justice)

This is an application for an interim order of stay of execution pending the hearing and determination of the substantive application for stay of execution of an order of the High Court in High Court of Uganda Nakawa Miscellaneous Application No. 049 of 2013.

The application is brought under Sections 10 and 12 of the Judicature Act Cap 13 and Rules 2, 6 (2) b and 43 of the Rules of this Court.

The grounds of the application are set out in the notice of motion as follows;-

  1. “The applicant filed a notice of appeal against the ruling and decision in Miscellaneous Cause No. 049 of 2013 delivered on the 24th day of February 2014.
  2. The applicant further applied and requested for typed and certified copies of the judgment and record of proceedings in the suit to enable it prepare the Memorandum of Appeal.
  3. That the applicant has been served with the court order and has no protection against execution of the order by the respondent.
  4. That the application for stay of execution filed by the applicant will be rendered nugatory if an interim stay is not granted and the respondent executes the order.
  5. The applicant shall suffer substantial loss if the 832 pieces of ivory are released unless the interim stay of execution is made.
  6. That the 832 pieces of ivory are also exhibits vide criminal case No. 0016 of 2013, Chief Magistrate’s court Buganda Road attached to the Anti-corruption Division.
  7. It is the interest of justice that an interim stay of execution

    of the order is granted pending the final disposal of the

    application for stay of execution.

8. That this application is of urgent nature and made in good faith, requiring court’s intervention in the interim.

9. That it is just, fair and equitable that the orders sought are granted.”

The above grounds are supported by the affidavit of one Haluna Mbeeta who is stated to be an advocate employed with the applicant at its legal services and Board affairs Department. The affidavit expounds on the grounds already set out in the notice of motion.

The respondent filed an affirmation in reply dated 3rd March 2014, it is affirmed by one Nakawooya Sarah who is stated to be an advocate practicing with the firm of Geoffrey Nangumya and Company Advocates who are said to be Advocates for the respondent. Court was informed from the bar that the respondent is now outside the jurisdiction of this Court.

At the hearing of this application Mr. Farouq Kitaka learned counsel together with Mr. Abdusalaam Waiswa appeared for the applicant. Mr. Geoffrey Nangumya assisted by Ms. Sarah Nakawooya appeared for the respondent.

It was submitted for the applicant that a notice of appeal has been filed in this Court and that a letter requesting for the lower Court record and proceedings has been filed at the High Court and served upon the respondent.

That the appeal is neither frivolous nor is it vexatious and as such it has likelihood of success. It was submitted further that the appeal raises serious issues of law that require determination by this Court.

It was submitted that there is a serious threat of execution of this order of Court and if this application is not granted and the above order is executed the subject matter of the appeal which is 832 pieces of ivory will be removed from the jurisdiction of this Court and that would render the main application and appeal nugatory. Counsel prayed for this appeal to be allowed.

In reply Mr. Nangumya submitted for the respondent that the application does not meet the legal requirements for grant of an order of stay of execution. That the applicant has no interest in the subject matter and therefore it cannot suffer irreparable loss or damage. That the applicant has not shown that the execution of the order is real and imminent. He further submitted that the appeal will not be rendered nugatory if this Court does not grant this order of stay of execution.

He further submitted that the reference to criminal prosecution proceedings pending before a Magistrate’s Court is of no effect as the legal issues in respect of the criminal charges have been resolved in favour of the respondent by the High Court.

He cited the case of Akright Projects Ltd versus Executive Property Holdings and 12 others, Supreme Court Civil 4

Application No. 3 of 2011 and Kato and another vs Nuulu Nalwoga, Supreme Court Civil Application No. 12 of 2011.

He submitted that no special circumstances exist for grant of an interim order of stay of execution.

The law in respect of grant of stay of execution has been discussed in a number of decisions of this Court before and recently in Civil Application No. 341 of 2013 Kyambogo University vs. Prof. Isaiah Omolo Ndiege. I will not repeat here what was extensively discussed in the Ruling of this Court in that application.

Suffice to say, Section 10 of the Judicature Act is not applicable in this case. What is applicable is Section 12 (1). An application for stay of execution is an interlocutory cause. A single Justice of this Court therefore can grant a substantive order of stay of execution under this section of the Judicature Act, Rule 53 (2) b of the Rules of this Court notwithstanding, as the Judicature Act takes precedence over the Rules of this Court.

In the case of Hwang Sung Industries Ltd vs Tajdin Hussein and others, Supreme Court Civil Application No. 19 of 2008, it was held by G.M Okello JSC ( as he then was) as follows;-

“For an application for interim order it suffices that a substantive application is pending and that there is some threat of execution before the hearing of the pending substantive application. It is not necessary to pre-empt

consideration of the matters necessary in deciding whether or not to grant the substantive application for stay”

In the case of Akright Project vs Executive Property Holding and 12 others (Supra), Justice Kitumba (JSC) held that;-

“The Court in addition to considering that a notice of appeal has been filed and that there is a substantive application has to consider whether there are special circumstances to warranty such an interim order. An example of that would be the immediate destruction of the suit property”

The Supreme Court in Civil Application No. 9 of 1990 Francis Mica vs. Nuwa Walakira observed that;-

“It would be unwise in some circumstances to defeat the statutory right of appeal for example by demolishing the subject matter of a suit so that the appeal is rendered nugatory.”

In the case of Teddy Sseezi Cheeye and Another vs. Enos Tumusiime Court of Appeal Civil Application No. 21 of 1996 this Court while considering circumstances Court should take into account before granting a stay of execution put it this way:-

“Such include where the subject of a case is in danger of being destroyed, sold or in anyway disposed of.”

In National Enterprise Corporation versus Mukisa Foods Miscellaneous Application No. 7 of 1998 this Court held that;-

“The Court has power in its discretion to grant stay of execution where it appears to be equitable to do so with view of temporarily preserving the status quo.

As a general rule the only ground for stay of execution is for the applicant to show that once the decretal property is disposed of there is no likelihood of getting it back should the appeal succeed.”(Emphasis added)

In this particular application I am satisfied that the applicant has lodged a notice of appeal within time. That a letter requesting for proceedings was filed in Court and a copy served on the respondent herein. Having looked at the ruling and order of the lower Court I am satisfied that there exits serious issues of law to be determined by this Court on appeal and therefore the appeal is not frivolous neither is it vexatious.

I also note that this application was made without undue delay.

I am also satisfied that there exists special circumstances for grant of stay of execution in this matter. The subject matter is a consignment of ivory said to have been impounded while in transit. It is clear therefore that if the said ivory is released to the respondent in compliance with the High Court order, that would

render the appeal nugatory as the ivory is likely to be moved outside the jurisdiction of this Court.

It is also very important to consider that the same consignment is a subject of criminal proceedings before the Anti-Corruption Division of the High Court where the ivory is required as an exhibit.

If this application is not granted, the said criminal proceedings would be jeopardized, as these exhibits are likely to be removed from the jurisdiction of that Court. I do not agree with Mr. Nangumya that the High Court order in a civil matter had the effect of disposing of a criminal matter pending before a Criminal Court.

However, I agree with him that the applicant has no pecuniary interest in the subject matter. Nonetheless the applicant has sufficient legal interest in the matter as a statutory body responsible for overseeing imports and exports of goods in this Country.

For the reasons I have given I am satisfied that the applicant has proved that special circumstances exist which warrant grant of an order of stay of execution pending appeal.

I would like to clarify here that since I have entertained this application under Section 12 of the Judicature Act exercising the powers of this Court to hear and determine a substantive application for stay of execution.

I hereby grant a substantive order of stay of execution pending appeal and not an interim–order.

This ruling disposes of both applications No. 61 and No. 62 of 2014. This is to save time and to avoid abuse of court process.

The costs of both applications shall abide the results of the appeal.

Before I take leave of this matter I would like to make the following observations;-

At the hearing of this application both counsel seemed unprepared to argue the application. There is need for learned counsel to prepare well before coming to this Court.

I was availed a copy of the pleadings in the High Court. The respondent herein describes himself as “ a male adult Ugandan of sound mind” in his affidavit in support of the notice of motion. However, in the affirmation in reply filed in this Court by the same respondent affirmed by Nakawooya Sarah his advocate, she states as follows “The respondent is a foreigner and the properties of foreigners in transit from neigbouring countries lawfully identified and described must be protected by the courts”

I am left wondering which of the two persons is telling the truth on oath. Needless to say one of them is being untruthful.

The learned Judge also seems to have based at least part of his

ruling on the fact that the applicant before him is a foreign national,

yet the applicant in that case in his own affidavit describes himself as a Ugandan citizen. Suffice to say on the face of it the ruling has glaring errors and contradictions.

It is very important that parties coming before Courts of law be truthful, and that this Court will not take lightly untruthful statements of litigants.

Dated at Kampala this 3rd day of March 2014.

……………………………………………….

HON. JUSTICE KENNETH KAKURU, JA

Arbitrating the Treaty on Certain Maritime Arrangements in the Timor Sea

Arbitrating the Treaty on Certain Maritime Arrangements in the Timor Sea:
 The Latest Round between Timor-Leste and Australia

Donald K. Anton*

Introduction and background

In a recent interview, former Australian Prime Minister Paul Keating claimed that he tried to do everything possible for the people of East Timor during his time in office, but complained that his government never “got any credit from the East Timor lobby, of course”.[1]  The reason for this lack of credit — not only for the Keating government but for Australian governments of all political persuasions — has a long history.[2]  It is a history that is bound up with the current dispute between East Timor and Australia in which East Timor seeks to have an arbitral tribunal declare invalid the 2006 Treaty with the Government of the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea (CMATS).[3]   And, it needs to be briefly rehearsed in order to understand East Timor’s dissatisfaction with the CMATS treaty.

This history begins in 1972 with the Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas Supplementary to the Agreement of 18 May 1971.[4]  The Agreement established the seabed boundaries between Australia and Indonesia in the Arafura and western Timor seas.  The Agreement employed “natural prolongation” to establish the boundaries.  This meant Australia’s continental shelf was extended by virtue of its geophysical characteristics to the Timor Trough, located approximately 40 nautical miles from the Indonesian coast (and the coast of Timor-Leste) and 250-350 nautical miles from the closest part of Australia.  The rub for Australia was that no similar agreement, however, was ever reached with Portugal, the U.N. administrative authority of East Timor.  By using “natural prolongation” to set the maritime boundary, Australia secured a uneven agreement where it obtained, by one estimate,[5] nearly 80% of the area that had been subject to overlapping claims by Indonesia.

The Timor Gap Treaty

After the illegal invasion and forcible acquisition of East Timor by Indonesia in 1975, [6] further agreement upon a seabed boundary between the coasts of Australia and Indonesian-controlled East Timor was not possible.  Indonesia insisted that a delimitation of this area be based on an “equidistance” principle, which was becoming part of the new law of the sea.  Equidistance requires that states with opposite coastlines closer together than 400 nautical miles, as is the case between Australia and Timor-Leste, to draw a median line between the opposite coasts as the boundary, at least as a starting point for negotiations.  This was unacceptable to Australia (and apparently remains so).  The result of the inability to complete the delimitation became known as the “Timor Gap” — the still non-delimited distance between the coasts of Timor-Leste and Australia, represented by the eastern and western limits of the 1972 agreed seabed boundaries of between Indonesian and Australia.

The stalemate between Australia and Indonesia prevailed until 1989 when they signed the notorious Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia (known as the Timor Gap Treaty).[7]  The treaty entered into force on February 9, 1991.  Under its provisions Australia and Indonesia purported set up a zone of cooperation to divvy up — between them alone – the zone’s resources, including oil resources belonging to the people of East Timor.  The Timor Gap Treaty, however, was illegal because Indonesia had used military force to acquire the territory of East Timor in a manner prohibited by one of international law’s most fundamental prohibitions.[8]  As a result, Indonesia could not obtain and had no title to the East Timorese territory or the oil resources of its Exclusive Economic Zone over which it could deal with Australia.[9]  Moreover, Australia was bound under international law not to recognise the unlawful Indonesian acquisition of territory, which it nevertheless did in order to enter into the Timor Gap Treaty.[10]

From 1991 to 1995 Australia fought hard to preserve the Timor Gap Treaty in the International Court of Justice against a claim challenging its legality brought by Portugal as the administering power over East Timor.  Portugal essentially asserted that the unlawful use of force to acquire East Timor meant Indonesia had no title by which to enter the Timor Gap Treaty.  The successful Australian defence was not based on the merits of its claim about the validity of the treaty, but involved the use of an “indispensible third party” procedural argument that precluded the ICJ from hearing the case because Indonesia refused to appear.[11]  Four years later, however, the Timor Gap Treaty was a dead letter after East Timor was allowed to exercise its right of self-determination and voted to become an independent state.

An Independent Timor-Leste and the Timor Gap

Australia did not wait long to begin to reposition itself in connection with the petroleum resources covered by the now defunct treaty.  First, two months before East Timor gained independence, Australia withdrew its acceptance of compulsory jurisdiction from the ICJ and the International Tribunal for the Law of the Sea and substituted a new declaration accepting jurisdiction, but with a reservation that Australia would refuse to appear before the court if it was sued over any dispute relating to the delimitation of maritime zones or to the exploitation of any disputed area of any such maritime zone pending its delimitation.[12]  These reservations were clearly intended to preclude East Timor from suing Australia in the ICJ.  Then, on the day of East Timor independence in 2002, Australia and East Timor entered into the Timor Sea Treaty[13] and in 2003 the parties signed an Agreement Between the Government of Australia and the Government of the Democratic Republic of Timor-Leste Relating to the Unitisation of the Sunrise and Troubadour Fields.[14]  Both treaties were accompanied by memorandum of understandings and the Timor Sea Treaty also was accompanied by an exchange of notes regarding exploration and exploitation.

Under these arrangements, the largest known petroleum deposits, collectively known as “Greater Sunrise”, were apportioned 79.9% for Australia and 20.1% for the Joint Petroleum Development Area (JPDA).   The JPDA was to be further divided with Australia receiving another 10% and East Timor receiving 90%.  In other words, in a case where the maritime boundary over the resource was clearly uncertain, Australia was able to extract roughly 82% of the total resource for itself, leaving newly independent and impoverished East Timor with 18%.

The Arbitration between Timor-Leste and Australia

This brings us to the negotiation of the 2006 CMATS treaty.   The treaty itself is notable for its duration until 2057, its extension of the Timor Sea Treaty until 2057, and it moratorium on all claims to sovereign rights and jurisdiction and maritime boundaries for the period of the treaty.  It also excuses the parties from any obligation to negotiate in good faith over permanent boundaries until 2057.  Significantly too, however, it provides for an equal share for East Timor and Australia of the revenue derived from upstream exploitation of petroleum from the Great Sunrise deposits.  While this revenue sharing arrangement is more generous than previously, the problem now appears to be the way in which East Timor’s consent to the CMATS treaty was procured.

If the recent media reports are accurate and Australia bugged the Cabinet room of the Timor-Leste government from 2004 when CMATS Treaty was being negotiated,[15] then it is possible that this Treaty (and the extension of the Timor Sea Treaty) is invalid under the law of treaties or voidable under general international law.  While it is impossible to know the basis of the claims East-Timor is asserting against Australia in the current arbitration because these proceedings are almost always closed to public view, it may seek to have CMATS declared invalid or avoided on three separate grounds.

Invalidity on account of fraud

First, as a matter of treaty law, under Article 49 of the Vienna Convention on the Law of Treaties (VCLT), to which both Australia and Timor-Leste are parties, a state that is induced to conclude a treaty by the fraudulent conduct of a negotiating state may invoke the fraud to invalidate its consent to be bound by the treaty.  The definition of fraud in international law is much broader than that found in domestic law. It includes deliberately deceitful behaviour in the formation of an international agreement.[16]  It seems clear that spying to obtain confidential and privileged information in order to gain advantage in treaty negotiations is deceitful behaviour.   Less certain, however, is whether this deceitful behaviour actually induced Timor-Leste to enter the CMATS treaty.  That will depend on what the evidence discloses.  If the evidence adduced proves a deceitful inducement, it appears that Australia will have the dubious distinction of being the first known to have a treaty declared invalid on account of its fraud.[17]

A breach of good faith

Second, it appears that the sort of spying by Australia that is reported to have taken place is a breach by Australia of its obligation of good faith under international law.  Good faith is a broad rule of international law. As the ICJ has stated, “[o]ne of the basic principles governing the creation … of legal obligations, whatever their source, is the principle of good faith”.[18] In the North Sea Continental Shelf Case the ICJ held that “good faith” underpinned the essence of negotiations related to seabed boundaries,[19] and by implication, the resources of a disputed seabed.  Good faith requires fair dealing between parties generally. In the context of treaty negotiations it requires fair proceedings in the creation of negotiated legal obligations between the parties.[20]  In the case of the CMATS treaty, Australia already had vastly superior bargaining position with its long and sophisticated experience and expertise in both the diplomacy and the science relevant to reserves and apportionment.  To seek to gain a further upper hand by way of spying is the antithesis of good faith.

While failure to negotiate in good faith is not a recognized ground of invalidity under the VCLT, it nevertheless provides Timor-Leste with a basis to seek the avoidance of the CMATS treaty.  A breach of good faith in negotiations may have a vitiating effect under general principles of international law[21] or the customary law of treaties.[22]  While no bright line test exists for what constitutes a breach of good faith in treaty negotiations, first principles indicate that a breach of good faith in the negotiation of a treaty exists if a state intentionally seeks to dupe or put the other party at an unfair advantage.  For this reason, the commission of fraud itself in the negotiation of a treaty would be an instance of bad faith that renders a treaty both invalid under the VCLT and null and void under general international law.[23]  It depends, of course, on the terms of the arbitral tribunal, but it is clearly possible that a tribunal might issue a declaratory judgement finding the CMATS treaty null and void because of a breach of good faith by Australia in its negotiation in order to let the parties know their relative legal positions.[24]

Intervention in Timor-Liste without consent

Finally, if the spying reports are true it seems clear that Australia has breached international law by illegally intervening into the most intimate of internal affairs of Timor-Leste without its consent.  Australia argued as amicus curiae in Rio Tinto, PCL v. Sarei, in opposing protection against alleged gross human rights violations by Rio Tinto under the U.S. Alien Tort Statute (ATS), that the exercise of U.S. jurisdiction under the ATS against non-U.S. nationals for actions taken in territory outside the U.S. violates international law because it “would interfere fundamentally with other nations’ sovereignty”.[25]  Deliberately sending spies into another state without permission to secretly obtain confidential, privileged, and classified information of the other state is a much more significant intervention into the exclusive sovereign domain of a state and is clearly prohibited by international law. As the Permanent Court of International Justice highlighted in Lotus, “the first and foremost restriction imposed by international law upon a State is that –failing the existence of a permissive rule to the contrary — it may not exercise its power in any form in the territory of another State.”[26] Clearly spying in another state without consent[27] is an exercise of power that is prohibited.

Despite repeated assertions from the United States and Australia that all states spy, the simple fact is that it remains illegal under international law, at least where it occurs in the territory of another state or at inviolate premises.[28]  This is demonstrated by several obvious facts.  First, it is undoubtedly untrue that all states spy in the territory of other states, at least in the wholesale, universal way that the U.S. National Security Agency seems to employ.  Many poor or underdeveloped states simply do not have the resources or capacity to engage in espionage with the frequency, scope or level of intrusiveness that the U.S. and Australia seem to claim is so.  Moreover, no states of which I am aware, including the U.S. and Australia, are on the record claiming that they are regularly engaged in espionage in the territory of other states because it is permissible under customary international law.  It is incumbent on states asserting that a customary rule permitting spying exists to shoulder the burden of proof.  So far, the evidence of a wide-spread, nearly uniform practice[29] remains entirely conjectural.  Merely stating all states spy, without hard evidence of the practice, is clearly insufficient in proving custom.

Second, even if there was a nearly uniform practice of spying, which was laying the ground for a permissive rule for a spying exception to the prohibition on intervention, it seems obvious that the requisite opinio juris is missing.  It is not acceptance or tolerance, but vigorous protests that invariably and immediately follow as soon as a state publicly learns that it is being spied on.[30] If the spy is a diplomat, expulsion follows.[31]  Moreover, states around the world criminalize espionage and the stealing of state secrets.[32]  If spying were in fact legal under international law, then significant problems would arise because these domestic laws would seen to be in violation of the permissive international rule allowing spying.[33]  No state of which I am aware accepts this.

As with the breach of good faith, unlawful intervention or interference is not a recognized ground of invalidity under the VCLT.  Like the alleged breach good faith, though, it still provides Timor-Leste with a basis to seek the avoidance of the CMATS treaty.  If the arbitral tribunal has the power to issue declaratory relief, there is no reason why Timor-Leste, as a wronged party, cannot seek a declaration that CMATS is void if it can prove that during its negotiation Australia violated its territory sovereignty through clandestine action, false pretences, or disguise in order to obtain information concerning Timor-Leste’s negotiation position or strategy.

Conclusion

Allegations of fraud, breach of good faith, and unlawful intervention mean that it is possible; perhaps likely, that CMATS will be declared invalid or void.  Much will depend on the evidence.[34]  Australia now finds itself in a difficult situation and the dispute is likely to continue and fester absent good will on the part of both parties.  The most just course of action at this point could be to allow an independent third party to finally make a judicial determination of the seabed boundaries of between Timor-Leste and Australia in order to achieve and equitable solution, create certainty about rights, and bring an end to this continuing saga.


* Associate Professor of Law, The Australian National University College of Law.  Thanks to Pene Mathew, Sarah Heathcote, and Sarah Joseph for pushing me to think harder about the issues raised and suggesting different ways to see them.

[1] ABC Television, Keating, Part IV (broadcast Dec. 3, 2013), available at: http://www.abc.net.au/tv/programs/keating/.

[2] For a detailed account see Paul Cleary, Shakedown: Australia’s Grab for Timor Oil (2007).  See also Gillian Triggs, ‘Creative Conflict Resolution: The Timor Sea Treaty Between Australia and East Timor’ in M. Langton, M. Tehan, L. Palmer & K. Shain, eds., Honour Among Nations? Treaties and Agreements with Indigenous People (2004), chap. 19; Clive Schofield, ‘Minding the Gap: The Australia–East Timor Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS)’ (2007) 22 Int’l J. Marine & Coastal L. 189.

[3] [2007] ATS 12 (entered into force 23 February 2007).

[4] 974 UNTS 319 (entered into force 8 November 1973).

[5] Jonathan I. Charney & L.M. Alexander, eds., II International Maritime Boundaries (1993), 1210-11.

[6] See Gillian Triggs and Dean Bialek, ‘The New Timor Sea Treaty and Interim Arrangements for Joint Development of Petroleum Resources of the Timor Gap’ (2002) 3 Melb. J. Int’l L. 322, 326-57, citing Resolution of 22 December 1975, S.C. Res. 384, UN SCOR, 30th sess, 1869th mtg, U.N. Doc. S/Res/384 (1975) and the series of U.N. General Assembly Resolutions on the matter: G.A. Res. 3485, UN GAOR, 30th sess, 3485th mtg, U.N. Doc. A/Res/3485 (1975); G.A. Res. 31/53, UN GAOR, 31st sess, 85th plen mtg, U.N. Doc. A/Res/31/53 (1976); G.A. Res. 32/34, UN GAOR, 32nd sess, 83rd plen mtg, U.N. Doc. A/Res/32/34 (1977); G.A. Res. 33/39, UN GAOR, 33rd sess, 81st plen mtg, U.N. Doc. A/Res/33/39 (1978); G.A. Res. 34/40, UN GAOR, 34th sess, 75th plen mtg, U.N. Doc. A/Res/34/40 (1979); G.A. Res. 35/27, UN GAOR, 35th sess, 57th plen mtg, U.N. Doc. A/Res/35/27 (1980); G.A. Res. 36/50, UN GAOR, 36th sess, 70th plen mtg, U.N. Doc. A/Res/36/50 (1981); G.A. Res. 37/30, UN GAOR, 37th sess, 77th plen mtg, U.N. Doc. A/Res/37/30 (1982). For an interesting analysis of Western support for the illegal Indonesian acquisition of East Timor by force based on declassified documents see Brad Simpson, ‘“Illegally and Beautifully”: The United States, the Indonesian Invasion of East Timor and the International Community’ (2005) 1974-1976, 5 Cold War History 281.

[7] [1991] ATS No 9.

[8] See Case Concerning East Timor (Portugal v. Australia), [1995] ICJ 90, 103; Roger S. Clark, ‘Timor Gap: Legality of the “Treaty on the Zone of Cooperation in an Area Between the Indonesian Province of East Timor and Northern Australia’, in Peter Carey & G. Carter Bentley, eds., East Timor at the Crossroads: The Forging of a Nation 73 (1995). See also Tina Hunter & Thomas Storey, ‘Oil and Politics Apparently do Mix: The Role of Multinational Resource Corporations in National Sovereignty’ (2008) 16 Asia Pac. L. Rev. 111, 120.

[9] Ian Brownlie, Principles of Public International Law 125 (4th ed., 1990).

[10] Roger S. Clark, ‘Obligations of Third States in the Face of Illegality – Ruminations Inspired by the Christopher Weeramantry Dissent in the Case Concerning East Timor,, in Antony Anghie & Garry Sturgess, eds., Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry 631 (1998).

[11] Case Concerning East Timor (Portugal v. Australia), [1995] ICJ 90.

[12] Australian Declaration under Paragraph 2 of Article 36 of the Statute of the International Court of Justice 1945 (22 March 2002), available at: http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3&code=AU; Australian Declarations under Articles 287(1) and 298(1) of the United Nations Convention on the Law of the Sea 1982 (22 March 2002), available at: http://www.itlos.org/fileadmin/itlos/documents/basic_texts/298_declarations_June_2011_english.pdf.

[13] Timor Sea Treaty between the Government of East Timor and the Government of Australia, [2003] ATS 13, entered into force 2 April 2003.

[14] [2007] ATS 11, entered into force 23 February 2007.

[15] See Nick Miller, East Timor Seeks to Scrap Oil Treaty with Australia in The Hague over Spying Allegations, Sydney Morning Herald, December 6, 2013, available at: http://www.smh.com.au/federal-politics/political-news/east-timor-seeks-to-scrap-oil-treaty-with-australia-in-the-hague-over-spying-allegations-20131206-2yufv.html See also Arbitration under the Timor Sea Treaty, 3 May 2013 (joint media release by the Australian Minister for Foreign Affairs and Special Minister of State), available at: http://foreignminister.gov.au/releases/2013/bc_mr_130503.html.

[16] Paul Reuter, Introduction to the Law of Treaties (1989), 137-38.

[17] Anthony Aust, Modern Treaty Law and Practice (2000), 254-55.

[18] Nuclear Test Case (Australia v. France), [1974] ICJ 253, 268.

[19] North Sea Continental Shelf Cases (FRG/Denmark; FRG/Netherlands), [1969] ICJ 3, 46-47.

[20] Id., at 33.

[21] Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953), 158-160.

[22] Lord McNair, The Law of Treaties (1961), 553-554.

[23] Bin Cheng, supra n. 20, at 160 (discussing fraud in the formation of an international tribunal as a violation of good faith that renders the entire proceedings null and void).

[24] Cf Christine Gray, Judicial Remedies in International Law (1990), 100-101.

[25] Motion for Leave to File Brief as Amici Curiae and Brief of the Governments of Australia and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of the Petitioners on Certain Questions in Their Petition for a Writ of Certiorari, Rio Tinto, PLC. v. Sarei, No. 11-649, 2011 WL 6934726 (U.S. Dec. 28, 2011), at 8.

[26] S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 18 (1927) (Sept. 7)(emphasis added).

[27] A clear from of permissible strategic observation by one state within the territory of another state arises under certain arms control agreements.  See e.g. Art. XI(1), Treaty between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Intermediate-Range Missiles, 27 ILM 90, 95 (1988).  If espionage in the territory of another state was legal at international law, then presumably there would be no need for inspection provisions in arms control and other treaties.  Of course, this sort of consent to external observation does not allow for or imply that covert observation beyond the overt observation expressly permitted under the treaty is allowed.

[28] See Manuel R. Garcia-Mora, ‘Treason, Sedition and Espionage as Political Offences Under the Law of Extradition’ (1964) 26 U. Pitt. L. Rev. 65, 79-80 (“peacetime espionage is regarded as an international delinquency and a violation of international law”); John Kish, International Law and Espionage (1995), 88 (“the general principle of territorial sovereignty negates the permissibility of espionage in national territory [of another state]”).  Other commentators take the view that espionage is prohibited by international law when it is criminalized by domestic legislation.  See Quincy Wright, ‘Espionage and the Doctrine of Non-Intervention in Internal Affairs’, in Roland J. Stanger, ed., Essays on Espionage and International Law (1962) 12-13.  If this were the case, then foreign espionage is illegal in Timor-Leste because it is protected against under the Government Decree Law on the Intelligence System of the Democratic Republic of East Timor (13 December 2007), available at: http://www.eastimorlawjournal.org/Government_Decree_Laws_East_Timor/intelligence_system.html.

[29] A requirement elaborated by the ICJ in North Sea Continental Shelf Cases (FRG/Denmark; FRG/Netherlands), [1969] ICJ 3, 41-45.

[30] Recent examples include protests of espionage carried out by one state in the territory of another state include protests by Germany, Spain, France, Italy, Brazil, Indonesia, Timor-Leste, India, Malaysia, and the list goes on and on.  See, e.g., E Timor Protest Australian Spying, Oman Daily Observer, December 5, 2013; Shishir Gupta, India Protests, Alleges US Political, Commercial Spying, Hindustan Times, December 4, 2013;  Thomas Reuter, Australian Espionage and the History of Foreign Intervention in Indonesia, Jakarta Post, December 1, 2013; AP, Malaysia Summons Singapore Envoy Over Spying Claims, The Guardian, November 26, 2013; Patrick Donahue, Germany Seeks Spy Probe as Spain Protests U.S. Spying, Bloomberg, October 29, 2013; Naomi O’Leary, Italian PM Says Spying By Allies Unacceptable, Reuters, October 24, 2013; Adrian Croft & Arshad Mohammed, France Summons U.S. Ambassador Over Spying Report, Reuters, October 21, 2013; Julian Borger, Brazilian President: US Surveillance a ‘Breach of International Law’, The Guardian, September 25, 2013; Carol J. Williams, U.N. Warns U.S. Against Illegal Spying on Diplomats, L.A. Times, August 26, 2013.

[31] See e.g., the following recent news reports, Marvis Birungi, Uganda Expels Sudan Diplomat Accused of Spying, Voice of America, Oct. 8, 2013; Gregory L. White, Paul Sonne & Siobhan Gorman, Russia Expels American on Spy Allegations, Wall Street Journal, May 14, 2013; U.S. Expels 50 Russian Diplomats, ABC News, Mar. 22, 2013; Iranian Diplomats Expelled from Bosnia over Spy Allegations, Intelnews, May 17, 2013.  See generally, John Kish & David Turns, International Law and Espionage (1995).

[32] See Commander Roger G. Scott, ‘Territorial Intrusive Intelligence Collection and International Law’ (1999) 46 A.F.L. Rev. 217-223.  If one were to collect and compare all existing espionage legislation around the world, it might be possible to argue that a prohibition on espionage existed as a general principle of law a la Article 38(1)(c) of the Statute of the International Court of Justice.

[33] Quincy Wright, ‘Espionage and the Doctrine of Non-Intervention in Internal Affairs’, in Roland J. Stanger, ed., Essays on Espionage and International Law 12-13 (1962).

[34] Two days before the arbitration between Timor-Leste and Australia was to commence, the Australian Security Intelligence Organisation (ASIO) raided the Australian office of a lawyer representing Timor-Leste and seized documents related to the case.  ASIO also detained a witness in the case and cancelled his passport.  Tom Allard, ASIO Raids Office of Lawyer Bernard Collaery Over East Timor Spy Claim, Sydney Morning Herald, December 3, 2013.

Phillip C. Jessup, Jr.

The Jakarta Post carried an obituary for the son of the famous U.S. international lawyer, ICJ Judge, and name sake of the Phillip C. Jessup International Law Moot Court Competition.  You learn something new every day.  

 

In memoriam: Mining executive Philip Jessup’s deep connection to Indonesia

Evi Mariani, The Jakarta Post, Jakarta | People | Wed, October 23 2013, 12:40 PM

Philip C. Jessup, Jr (third from left). (Courtesy of Soffie Wahju)

Philip C. Jessup, Jr (third from left). (Courtesy of Soffie Wahju)
People News

Almost two months have passed since Philip C. Jessup, Jr. passed away in the United States but his friends and family in Indonesia still remember him fondly as a warm person with a big heart.

Jessup — a senior executive and lawyer to one of Indonesia’s largest nickel miners PT Inco (now Vale Indonesia) — was a key player in the creation of the so-called Second Generation Contracts between the Indonesian government and mining companies.

This contract, made in 1968, would later become the model for later contracts of work and followed the first contract of work of this kind between the government and PT Freeport Indonesia’s, which was signed in 1967. The project was a billion-dollar investment project and turned the sparsely-populated Soroako, South Sulawesi, from a village of around 700 people to 29,000 people.

Jessup’s role in the founding of Inco, the construction of the Soroako mine and his frequent trips to and from Indonesia in the late 1960s meant that the country became a significant part of Jessup and his family’s life. Helen Ibbitson Jessup, Jessup’s widow, said she had many fond memories during their stay in Indonesia.

“It is impossible to settle on just one,” she said. “I think what always amazed us was the capacity of Indonesians to confront problems and find acceptable compromises and concessions on the part of the adversaries. I often thought of this enlightened cultural phenomenon during our recent governmental shut-down here in the US.”

Jessup’s son, Timothy C. Jessup, who works as a forest and climate specialist at AustralianAID in Jakarta and lives here with his Indonesian wife and their three children, said he knew Indonesia through his father.

Tim was about 20 years old and in college when his father came to live in Indonesia but he and his two sisters would often visit his father, stepmother and his three step sisters and a step brother.

“We would go to the National Museum, Bogor Botanical Gardens, Sunda Kelapa Port and of course Yogyakarta and Bali,” he said.

Tim said there was limited Western food in Jakarta back then but his father did not mind because he loved Indonesian food. “He loved sambal, tempeh and anything spicy.”

But the family’s experience of living in Indonesia was tainted by legal problems surrounding Inco in 1977. Consequently, Jessup was drawn into a preposterous lawsuit and faced four years in jail if convicted of criminal libel.

The case made The New York Times’ headline, which quoted Jessup’s lawyers as saying that the judge had hinted that a bribe of US$10,000 would sway his decision. Helen said many people, including several ambassadors, rallied to the cause and eventually the case was dropped.

Tim said despite the difficult times, his father still maintained his connection to Indonesia right until the end of his life. He and Helen regularly visited Indonesia, especially because of Helen’s involvement with the United States-Indonesia Society (Usindo). The last time Jessup senior visited was last year.

Soffie Wahju, a friend of Jessup’s family whose late husband, Beni Wahju was a pioneer geologist at the Soroako nickel mining, recalled a particular checkered sarong that Jessup would not only wear in tropical Indonesia but also during the summer in the US.

“He was a kind, caring person,” Soffie said, “even to me, a mere wife of an employee. He cared and was sincere about it.”

Jessup was born on Aug. 30, 1926 and died of liposarcoma on Aug. 28 this year. He and his family lived in Jakarta from 1972 to 1978 in Kemang, South Jakarta.

He was survived by Helen, his wife of 44 years, his three children from his first marriage including Tim, his four stepchildren from Helen and eight grandchildren. After retirement from Inco in 1984, he was appointed the legal adviser to the US National Gallery of Art.

The Arctic Sunrise Case (Kingdom of the Netherlands v. Russian Federation)

The Netherlands has now submitted a request for provisional measures with the International Tribunal for the Law of the Sea (ITLOS).  Below is the imagesTribunal’s press release.  The Request for provisional measures submitted by the Netherlands is here.

The Arctic Sunrise Case (Kingdom of the Netherlands v. Russian Federation)

A request for the prescription of provisional measures pending the constitution of an arbitral tribunal was submitted today to the International Tribunal for the Law of the Sea by the Kingdom of the Netherlands in a dispute with the Russian Federation. The dispute concerns the arrest and detention of the vessel Arctic Sunrise and its crew by authorities of the Russian Federation. The Arctic Sunrise, which flies the flag of the Netherlands, is an icebreaker operated by Greenpeace International.

The full press release is here.  A report for Radio Free Europe/Radio Liberty on the case is here.

Netherlands Reported to Weigh ITLOS Action Against Russia Over Greenpeace Arrests

RT reports that the Netherlands is threatening to go to ITLOS if the situation surrounding the detention of Greenpeace protesters by Russia is not resolved soon:

The Netherlands is prepared to address the International Tribunal for the Law of the Sea if the situation surrounding 30 Greenpeace activists arrested in Russia isn’t resolved by Monday, the country’s PM, Mark Rutte, declared.

He also indicated that work is underway to find a diplomatic solution to the matter.

Meanwhile, Greenpeace Russia staged a protest called “Release the activists, save the Arctic” in Moscow. The demonstration was speaking out against the detention of the 30 activists, all of whom were arrested in September.

Thirty protesters were dressed in orange uniforms, and two others were wearing polar bear costumes. However, the rally was interrupted when a counter-protester dressed as a polar bear appeared holding a banner which read, “The Arctic needs ecologists, not eco-terrorists.” He was quickly detained by police.

The protesters were holding banners enumerating law violations that were reportedly committed by authorities who arrested the activists.

“The reason we’re here – 30 days of madness and breach of justice towards the people who expressed their opinion, peaceful and unarmed. We don’t have the opportunity to get to the central channels. We don’t have any other option to tell the government what we want to say – except for staging rallies,” the organizers told reporters.

Similar rallies took place in Germany, Canada, and Mexico.

Russian authorities detained 30 people aboard the Arctic Sunrise Greenpeace vessel after it approached a Gazprom oil rig last month, in a protest against Arctic drilling. A court in Murmansk – where the ship was transported – charged the activists with piracy, which can carry a punishment of up to 15 years in prison.
The Murmansk Region Court in Russia on Friday rejected an appeal filed by UK Greenpeace activist Alexandra Harris. Appeals to release Greenpeace activists Anne Mie Roer Jensen from Denmark and Canadian Alexandre Paul were also denied.

Earlier, the court rejected similar appeals filed by activists from Russia, the UK, New Zealand, the US, Argentina, and Australia.

Russian officials say Greenpeace’s Arctic Sunrise ship – which is registered in the Netherlands – has repeatedly violated Russian laws since August 2012, sources told RT.

The Russian Transport Ministry contacted the Dutch government regarding the vessel’s provocative actions in the Arctic last December, but never received a response.

Meanwhile, in Murmansk, CCTV footage released by Greenpeace showed six men in balaclavas reportedly breaking into the organization’s office.

The group said a mock cage – due to be used in a stunt as part of a campaign on Friday – was stolen in the break-in.

Saudi Arabia Declines Seat on the Security Council

In what surely must be a first, the AP is reporting that Saudi Arabia, is declining to take its seat on the U.N. Security Council after successfully being elected as a non-permanent member:

RIYADH, Saudi Arabia (AP) — Saudi Arabia is rejecting its seat on the U.N. Security Council and says the 15-member body is incapable of resolving world conflicts.

The move came just hours after the kingdom was elected as one of the Council’s 10 nonpermanent members.

In a statement carried on Friday by the official Saudi Press Agency, the Saudi Foreign Ministry says the Council has failed in its duties toward Syria.

It says this alleged failure enabled Syrian President Bashar Assad’s regime to perpetrate the killings of its people, including with chemical weapons, without facing any deterrents or punishment.

The Ministry also says the Council has not been able to resolve the Palestinian-Israeli conflict over the past decades and has failed to transform the Middle East into a zone free of weapons of mass destruction.

Pulp Mills (Argentina v. Uruguay) Pt 2?

From the MercoPress:

On Tuesday Foreign minister Hector Timerman set an ultimatum calling on Uruguayan president Jose Mujica to ‘immediately’ roll back the UPM pulp mill production expansion authorization, otherwise “Argentina would be forced to again appeal to the International Court of Justice in The Hague”.

The several pages letter sent by Uruguay’s Foreign minister Luis Almagro to Timerman accuses Argentina of ‘pre-judging’ and ‘putting obstacles”, and strongly defends the decision to authorize the UPM production expansion detailing extensively the different steps taken by Uruguay in compliance with the River Uruguay statute, The Hague Court ruling, and ‘courteously’ keeping Argentina notified all along the process.

“Uruguay all along has acted in conformity with its international obligations, both referred to the River Uruguay statute” as with “the ruling from the International Court of Justice” from April 2010, points out the letter.

Likewise Uruguay emphatically affirms that the result from the environmental impact “joint monitoring unambiguously shows that the UPM plant does not contaminate” and complies with all the environmental standards agreed.

Uruguay also accuses Argentina of using the reiterated ‘data requests’ instrument as a “practice that denaturalizes a mechanism which was created specifically for consultation and exchange of information”, and which accordingly “is not acceptable”.

“The Argentine delegation before CARU (Administrative Commission of the River Uruguay) has continued with successive requests of information with the only effect of setting obstacles to the compliance with the different deadlines contemplated in the above mentioned norms”.

Nevertheless Uruguay reiterates its willingness to continue negotiations to reach a new norms framework for the joint management of the shared River Uruguay “which satisfies the common interest of preserving the environmental quality of the River Uruguay”.

Uruguayan minister Almagro then reveals that last October first he presented Timerman with “an ambitious and constructive proposal” to improve the River Uruguay Statute and with greater environmental controls, including the mouth of the river Gualeguaychú (on the Argentine side opposite to the UPM plant).

“This initiative not only reflects the good faith and good willingness of Uruguay to continue negotiations” but also provides “a concrete basis to reach the highest possible standards for the protection of the river”.

In early October Uruguay authorized the UPM pulp plant to increase its annual production by 100.000 tons, (to 1.2 million tons) conditioned to some further environmental demands. Nevertheless Argentina’s reaction although expected was particularly condemning.

However Uruguay believes Argentina finally won’t take the case to the International Court of Justice, but if it does “we are confident that reason is on our side” according to Deputy Foreign minister Luis Porto.

“Whatever the path chosen, we are confident. We continue open to talks; we have made a proposal but received no reply yet. As a small country we keep strictly to international law and dialogue”, underlined Porto.

 

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