Role and Function of Diplomatic Notes in Court in International and National Legal Cases

 

Role and Function of Diplomatic Notes in Court in International and National Legal Cases

Jakarta, June 12, 2024 

By: Rear Admiral TNI (Ret.) Adv Soleman B. Ponto ST SH MH CPM CParb

On Tuesday, June 11, 2024, in Batam, the legal counsel of Ocean Mark Shipping (OMS), representing the MT. Arman 114 Sailing Viktor ship, expressed disappointment because the panel of judges at the Batam District Court ignored a diplomatic note to prove the ownership of the ship. The reasons why the judges disregarded the diplomatic note are still unknown.

Functions of Diplomatic Notes in the Context of the Court:

1. As Additional Evidence: Diplomatic notes can function as additional evidence in legal cases involving claims of ownership or status of an asset, including ships. Although not legally binding, these notes can provide context or support the claims made by one of the parties in the dispute.

2. Indicating Official Recognition or Claims: Diplomatic notes can indicate official recognition or claims by a country regarding the status or ownership of an object. In the case of ship ownership, a diplomatic note from the ship's country of origin acknowledging ownership can be a strong indication of who the rightful owner is.

3. Providing Official Information: Diplomatic notes can provide relevant official information for the case, such as ship registration, ownership history, or the legality of the ship's operations in certain waters.

Consequences if Judges Do Not Consider Diplomatic Notes:

1. Lack of Consideration of Important Evidence: Ignoring diplomatic notes may mean that the court does not consider important evidence that could affect the outcome of the decision. This can lead to less fair or inaccurate decisions because not all relevant evidence has been evaluated.

2. Ignoring Official Claims from Foreign Countries: Ignoring diplomatic notes containing official claims from foreign countries can impact diplomatic relations between countries. This can complicate matters and create diplomatic tensions.

3. Potential for Appeals and Cassation: If relevant diplomatic notes are not considered, the aggrieved party can use this as a basis to file an appeal or cassation. They can argue that the court did not consider all relevant evidence, which could prolong the legal process.

Actions to Be Taken:

1. Evaluate Diplomatic Notes Carefully: Judges should read and evaluate diplomatic notes carefully to understand their relevance and context in the case being tried. These notes should be considered as part of the overall evidence.

2. Request Clarification or Verification: If there is any ambiguity or need for further confirmation, judges can request clarification or verification from the relevant parties, including the foreign ministry or the diplomatic representatives of the country that issued the note.

3. Use Experts or Specialists: In some cases, it may be necessary to involve experts or specialists in international law or diplomatic relations to provide opinions or analysis regarding the diplomatic notes.

4. Consider All Evidence in a Broad Context: Judges should ensure that all evidence, including diplomatic notes, is considered in a broad context. This includes considering other documentary evidence, testimonies, and applicable laws.

Practical Case Examples

Here are some real-world examples where diplomatic notes have played an important role in international and national legal cases:

1. Case "Arctic Sunrise" (Greenpeace vs. Russia)

   • Background: In 2013, the "Arctic Sunrise" ship owned by Greenpeace was detained by Russian authorities after Greenpeace activists protested against oil drilling in the Barents Sea. Russia detained the ship and its crew, accusing them of illegal activities.
   • Role of Diplomatic Notes: The Netherlands, as the flag state of the "Arctic Sunrise," issued a diplomatic note to Russia, requesting the release of the ship and its crew, asserting that the detention violated international law, particularly the United Nations Convention on the Law of the Sea (UNCLOS).
   • Outcome: The case was brought to the International Tribunal for the Law of the Sea (ITLOS), which then ordered Russia to immediately release the ship and its crew. The ITLOS decision took into account the Netherlands' diplomatic note as official claim evidence and ownership recognition.

2. Case "Enrica Lexie" (Italy vs. India)

   • Background: In 2012, two Italian marines on duty on the tanker "Enrica Lexie" shot dead two Indian fishermen off the coast of Kerala, India, mistaking them for pirates. India arrested and detained the two marines, causing diplomatic tension between Italy and India.
   • Role of Diplomatic Notes: Italy sent several diplomatic notes to India, demanding the release of their marines and stating that the incident occurred in international waters, thus jurisdiction over the case was under Italian law.
   • Outcome: The case was brought to international arbitration. The Permanent Court of Arbitration (PCA) in The Hague in 2020 ruled that Italy had criminal jurisdiction over the marines and that India should halt criminal proceedings against them. Italy's diplomatic notes played a role in strengthening Italy's jurisdictional claims.

3. Case of the Detention of the Iranian Ship "Grace 1" by the UK

   • Background: In July 2019, the authorities in Gibraltar (a British overseas territory) detained the Iranian supertanker "Grace 1," suspected of violating European Union sanctions by carrying oil to Syria.
   • Role of Diplomatic Notes: Iran issued a diplomatic note to the UK, demanding the immediate release of the ship and accusing the UK of piracy. Iran also stated that the ship was not heading to Syria and was not violating international sanctions.

• Outcome: After several weeks of negotiations and diplomatic tension, the court in Gibraltar decided to release the "Grace 1" on the condition that Iran provided assurances that the ship would not deliver oil to Syria. Iran's diplomatic note became an important part of the arguments presented during the negotiations and legal proceedings.

4. Case of the Detention of the Ship "Lübeck" (Germany vs. Cambodia)

   • Background: In 2001, the German-flagged ship "Lübeck" was detained by Cambodian authorities on allegations that the ship was involved in illegal activities in Cambodian waters.
   • Role of Diplomatic Notes: The German government sent a diplomatic note to Cambodia, stating that the detention of the ship was unlawful and demanding its immediate release. Germany asserted that the ship had the right to navigate international waters without interference.
   • Outcome: After a series of diplomatic negotiations and interventions from various international organizations, Cambodia eventually released the "Lübeck." Germany's diplomatic note helped strengthen Germany's position in negotiating the release of the ship.

5. Case of the "Rainbow Warrior" Ship (France vs. New Zealand)

   • Background: In 1985, the Greenpeace ship "Rainbow Warrior" exploded in Auckland harbor, New Zealand, in an operation secretly conducted by French intelligence agents to prevent Greenpeace from protesting against French nuclear tests in the Pacific.
   • Role of Diplomatic Notes: After the incident, the New Zealand government issued a diplomatic note to France, demanding an explanation and compensation for the attack. France initially denied involvement but later admitted after evidence emerged.
   • Outcome: After lengthy negotiations and international intervention, France agreed to pay compensation to New Zealand, and the two French agents arrested in New Zealand were transferred to prisons in France. New Zealand's diplomatic note played a crucial role in resolving the dispute through diplomatic channels.

Conclusion

Diplomatic notes have an important function in court as additional evidence that can provide context, official claims, and relevant information. Ignoring diplomatic notes can result in incomplete or unfair decisions, potential diplomatic tensions, and the possibility of appeals or cassation. Judges must carefully evaluate and consider diplomatic notes, and use clarification or experts if necessary, to ensure all evidence is properly considered.

The above examples demonstrate how diplomatic notes are used in legal contexts to make claims, demand action, or resolve international disputes. In court, diplomatic notes can function as additional evidence that strengthens one party's arguments and influences the final outcome of the case being tried. Judges who consider diplomatic notes as part of the evidence will provide a more comprehensive and fair assessment in resolving ownership disputes over ships or other assets.

Hopefully, this can be a consideration for judges at all Indonesia District Court.