International sanctions: detention in Gibraltar

2019-09-12

International sanctions

 

LEGAL DEBATE BEHIND THE DETENTION OF AN OIL TANKER IN THE STRAIT

This opinion article was published in Expanisón.

On July 4th, the Gibraltar authorities, using Gibraltarian policemen and royal British Marines, stormed the Panamanian-flagged ship Grace 1, owned by a Singaporean ship. Grace 1 transported Iranian crude oil from Iran to a refinery in Syrian territory.

The Gibraltarian Government has managed to get its courts to extend the ship’s detention by two more weeks, and on 19 July, the Gibraltarian authorities announced that they were extending the ship’s detention period by one more month, the Supreme Court of Gibraltar setting a new hearing for August 15th. This means economic losses, damages from delays in the delivery of the cargo, etc.

The incident has been the spark of an escalation of tension in recent weeks between the UK and Iran, during which, although the British government offered Tehran to release the ship as long as the latter assured that the oil would not be sent to Syria, the Iranian government retaliated by capturing the British ship Stena Impero in the Strait of Hormuz.

The authorities in Gibraltar justify their actions by stating that they did nothing more than apply the European Union sanctions to Iran, as the owner of the refinery to which the oil was allegedly destined is a subject currently under sanctions by by the European Council, even though this country was not named. In this regard, they claim that they have already informed the Commission and the Council of the vessel’s arrest. European sanctions would only bind those within its jurisdiction and not third parties, as a general rule.

The operation is one that is separate from European sanctions. So everything points to the fact that Gibraltarians, and by extension the United Kingdom, have only implemented a secondary sanction from the United States.

Although we are not aware of quite a few circumstances of the case (for example, we do not know who the actual owners of the Singapore-based shipping company that owns the ship are), we can already anticipate that the action of the Gibraltarian authorities is illegal both from the point of view of Public International Law as well as European Union Law.

First of all, it must be made clear that Gibraltarian police and British military carried out the operation in waters not subject to their sovereignty, but rather in Spanish waters. Indeed, according to the Treaty of Utrecht, Gibraltar has no more territorial waters than the interiors of its port, and it appears that the capture of Grace 1 was four miles from the coast.

It is true that Gibraltar upholds the old rule, which is absolutely incompatible with the Treaty of Utrecht, in which its waters reach up to three miles. However, even if this claim was accepted, the capture was outside its waters of sovereignty. In this regard, it is still of significance that the Spanish Government was apparently alerted in advance of the action intended to be taken and a Civil Guard patrol boat was close to the point at which the ship was boarded. In fact, the Spanish government now seems to be studying the facts in case it is necessary to present some kind of protest against the British authorities.

Secondly, with the data we now have, we fail to understand what “sanctioning arguments” Gibraltarians were able to devise by capturing Grace 1. The European Union prohibits Europeans from importing oil and petroleum products from Syria, and, at the same time, also prohibits Europeans from other operations (transport, insurance, etc.) related to such imports, but in this case we are not dealing with a “European” operation, but foreign crude oil shipment strips to Syria.

All points to the fact that what the Government of Gibraltar has really done is act at the request of the US authorities, who, by seizing Grace 1, has managed to apply extraterritorial (secondary American) sanctions to the Iranian oil sector.

This behavior is still legally inadmissible for several reasons: the first would be that these US restrictions are imposed after the unilateral US break-up of the Joint Comprehensive Plan of Action (JCPOA). The JCPOA lifted sanctions on Iran in exchange for its stopping of its nuclear program. We insist that the European Union and its Member States, unlike the US, continue, for the time being, to consider that the JCPOA remains in place and the obligations arising therefrom must be respected.

The second reason would be that the Gibraltarian authorities with their behavior have applied a secondary American sanction, which is radically contrary to the provisions of the European Blocking Statute, contained in Regulation (EC) 2271/96 2018/1100 Delegated Regulation (EU) and Implementing Regulation (EU) 2018/1101. These are the Regulations that updated the European antidote rules and were issued expressly to deal with secondary U.S. sanctions against Iran.

These brief and quick lines highlight the numerous legal irregularities of remarkable gravity surrounding the capture and retention of the vessel Grace 1, the latter action must be fought at both legal and political levels. In short, Europe is not acting consistently or decisively against secondary US sanctions. This points to some deterioration of the Rule of Law in Europe.