THE CASE OF MV ARMAN COULD END UP AT THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (ITLOS)

THE CASE OF MV ARMAN COULD END UP AT THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (ITLOS)

Jakarta, June 10, 2024

Laksda TNI (Ret.) Adv. Soleman B. Ponto ST SH MH CPM CParb

MV Arman was known to have been detained by Bakamla around June 2023 in the ZEE waters around Natuna Island. The reason used by Bakamla as the legal basis for the detention was that MV Arman was engaged in marine pollution. That is why the ship was subsequently handed over to the Civil Servant Investigator of the Ministry of Environment and Forestry (KLHK) for further processing in court. It has been almost a year, and the court process is still unresolved. Because the legal process for the ship has been unclear for almost a year, the ship's owner finally plans to file a lawsuit for damages due to the prolonged court process.

Claim for Compensation

A claim for compensation can be pursued by filing a pre-trial motion at the Batam District Court or the International Tribunal for the Law of the Sea (ITLOS) or another international court dealing with violations of international maritime law.

I. Facts of the Case

• MV Arman was detained by a Bakamla ship in Indonesia's ZEE on charges of marine pollution.
• This detention was carried out without clear legal grounds and without following the procedures established by UNCLOS.
• The shipowner did not receive an official notice regarding the reasons for the detention.

II. Legal Basis

Violation of Freedom of Navigation:

• The detention of the ship in the ZEE violates the right to freedom of navigation as stipulated in UNCLOS, particularly Articles 58 and 87.

Flag State Rights:

• UNCLOS grants the flag state the right to freedom of navigation in the ZEE and limits the coastal state's actions to detain ships except as provided in the convention.

Detention Without Clear Legal Basis:

• Law No. 32 of 2009 on Environmental Protection and Management does not apply in the ZEE, making the detention of MV Arman unlawful.

Violation of Detention Procedures:

• UNCLOS, Article 73, Paragraph 4:

  "In the event of the arrest or detention of a foreign ship, the coastal State must promptly inform the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed."

Significant Financial Losses:

• The unlawful detention has caused significant financial losses to our client, including loss of income and operational costs.

Therefore, the claim for compensation can be filed at the Batam District Court and/or the International Tribunal for the Law of the Sea (ITLOS).

III. Potential Consequences of Non-Compliance with ITLOS Rulings

If ITLOS orders the release of the ship and the payment of compensation, but the state concerned does not comply, several consequences may occur, both under international law and in diplomatic relations. The following are some of the sanctions and consequences that may occur if ITLOS decisions are defied:

1. Sanctions from the International Court (ITLOS) a. Enforcement of ITLOS Decisions
• Contempt of Court: Although there is no direct mechanism to punish non-compliant states, the court may record the non-compliance, and the state may be considered to have committed contempt of the international court. b. Report to the UN Security Council
• UN Security Council Intervention: The flag state or the aggrieved state may report the non-compliance to the UN Security Council. The UN Security Council has the authority to take further action, including diplomatic or economic sanctions against the non-compliant state.
2. Diplomatic and Economic Consequences a. Retaliation
• Diplomatic Retaliation: The flag state or other states supporting the ITLOS decision may take diplomatic actions against the non-compliant state, such as reducing diplomatic relations, withdrawing ambassadors, or limiting diplomatic access.
• Economic Retaliation: The flag state or other trading partners may impose economic or trade sanctions on the non-compliant state, such as trade restrictions, asset freezes, or other financial sanctions. b. Multilateral Actions
• International Coalition: Other states may join forces to form a coalition to pressure the non-compliant state to comply with ITLOS orders. This can include pressure from international organizations such as the European Union, ASEAN, or other regional organizations.
3. Loss of International Reputation a. Decreased Credibility
• Negative Image: A state that does not comply with ITLOS orders may suffer a loss of credibility and reputation in the eyes of the international community. This can affect bilateral and multilateral relations as well as the state's ability to participate in future international cooperation. b. Increased Risk of Disputes
• Ongoing Disputes: Non-compliance with ITLOS orders can trigger ongoing disputes with the flag state or other states supporting the decision, increasing tension and the risk of conflict.

Therefore, non-compliance with ITLOS orders to release the ship and pay compensation can result in diplomatic and economic sanctions, UN Security Council intervention, loss of international reputation, and increased risk of disputes. It is important for the state subject to the order to consider these consequences and comply with international court decisions to maintain good relations with the international community and avoid further sanctions.

Case Example:

A ship detained in the Exclusive Economic Zone (ZEE) on charges of marine pollution and subsequently released by the International Tribunal for the Law of the Sea (ITLOS) with an order to pay compensation is the case of the MV "Norstar."

Background:

• The MV "Norstar" is an oil tanker registered under the flag of Panama. The ship was detained by Italy in 1998 in the Spanish ZEE on charges of conducting bunkering (refuelling at sea) that violated Italian customs laws.
• Italy accused the MV "Norstar" of conducting bunkering in international waters in violation of their customs laws, similar to the case of MV Arman.

Legal Process:

• Panama, as the flag state of the MV "Norstar," brought the case to ITLOS in 2015, claiming that Italy had violated the right to freedom of navigation under UNCLOS.
• In 2018, ITLOS ruled that Italy had violated Panama's right to freedom of navigation in the ZEE and ordered the release of the ship and the payment of compensation.

Basis of ITLOS Decision:

• Violation of Freedom of Navigation: ITLOS found that the detention of the MV "Norstar" in the Spanish ZEE violated the right to freedom of navigation under Articles 87 and 90 of UNCLOS.
• Compensation: ITLOS ordered Italy to pay compensation to Panama for the losses incurred due to the unlawful detention.

Impact of the Case:

• The MV "Norstar" case serves as an important precedent in international maritime law regarding the detention of ships in the ZEE and violations of the right to freedom of navigation, similar to the case of MV Arman.
• This ruling confirms that detention actions in the ZEE must comply with UNCLOS provisions, and states that violate these provisions can be held liable for compensation.

Conclusion:

• The case of the MV "Norstar" is a clear example of how ITLOS handles disputes involving the detention of ships in the ZEE on charges of marine pollution or other violations and orders the release and payment of compensation.
• This case demonstrates that the flag state has the right to seek justice at ITLOS if their ship is unlawfully detained in the ZEE.
• This is a valuable lesson for Bakamla and the PPNS of the Ministry of Environment and Forestry, as it is highly likely that the case of MV Arman will be brought to the International Tribunal for the Law of the Sea (ITLOS)