Professor Alexander Orakhelashvili
The recent judgment of the ITLOS Chamber in Heroic Dunn (Marshall Islands v Equatorial Guinea) raises important questions about the relationship between issues of State responsibility and admissibility of claims before international tribunals. The Chamber has rejected Equatorial Guinea’s preliminary objections and ruled on the issue of its responsibility and remedies.
In several places in the parties’ pleadings and in the Judgment itself, the issues of admissibility and responsibility are treated in the same context or breath, at times with the contention that they are inherently connected to each other, against the background that the detention and treatment of Heroic Idun involved the conduct not only of Equatorial Guinea but also of Nigeria which was not party to the proceedings. On the general plane, whether the Tribunal can pronounce on issues pertaining to Nigeria’s conduct before the detention of Heroic Idun and after its transfer from Equatorial Guinea to Nigeria is the issue the admissibility of claims that has to be determined before the Tribunal can go into merits of the case.
By contrast, in what circumstances Heroic Idun was detained or what happened after the ship was transferred to Nigeria is about the principles of State responsibility. The detention issue could possibly involve a premise that Equatorial Guinea was under Nigeria’s control and direction when detaining Heroic Idun. In the Judgment (paras 515ff), this matter was disposed by reference to facts pointing to Equatorial Guinea’s own involvement in the ship’s detention. There might have been some form of coordination with Nigeria in the process, but there was no evidence before the Tribunal that Equatorial Guinea acted under Nigeria’s direction and control in the sense of Article 17 of ILC’s Articles on State responsibility. The Tribunal was able to address Equatoria Guinea’s conduct separately and on its own and figure out the causal connection between that State’s internationally wrongful act and the harm that was suffered by Heroic Idun. On legal terms this means that every State is responsible for its own conduct, and this produces wider political implications that the State which is responsible for an internationally wrongful act will not be able to avoid responsibility even if it acted in coordination with another and more powerful State. The cost of collusion will have to be borne regardless.
The issue of the transfer of the ship to Nigeria was about causation with regard to harm caused to Heroic Idun after that transfer. Here too, the Tribunal was able to treat this matter as one of Equatorial Guinea’s own legal responsibility. But before it could do so, it had to address the indispensable party doctrine (discussed earlier here, here and here) pursuant to Equatorial Guinea’s objection to admissibility of Marshall Island’s claims. Equatorial Guinea presented a rather far-reaching and excessive version of this doctrine, which it said extends not just to issues of admissibility, but also to merits and responsibility, namely “to the examination of all claims made by the Marshall Islands concerning the period after the departure of the M/T “Heroic Idun” from Luba Freeport” (Judgment, para. 522). The argument was then connected to the issue of complicity under Article 16 ASR, to the effect that “Marshall Islands admit[ted] that much of the damage claimed by it was a result of actions which occurred in Nigeria”; and hence Equatorial Guinea was not responsible for whatever happened to the ship after its transfer to Nigeria. Marhsall Islands expressly disclaimed any reliance on Article 16 (paras, 503, 505). Either way, as explained earlier here and here, Article 16 does not endorse a watertight separation between the conduct of the aiding State and that of the aided State, and can accommodate the causal reasoning and progression to lead to the responsibility of the aiding State for the conduct of the aided State that is causally connected to that of the aiding State. This is one of the reasons why, as Ian Brownlie has observed several decades ago, the whole notion of aid and assistance is misconceived. The real essence of this matter is about joint perpetration of a wrongful act by two or more States. The Tribunal itself was able to move away its central focus from Article 16 and address the conduct of Equatorial Guinea through the prism of causation.
The Tribunal has rejected Equatorial Guinea’s admissibility objection based on the indispensable party doctrine. Nigeria was not an indispensable party and only Equatorial Guinea’s own conduct had to be addressed. But Nigeria’s conduct was still involved in the background of the case and claims, and the doctrine of causation had to be used to clarify the extent of Equatorial Guinea’s responsibility.
In paragraphs 282-283 of its Reply, Marshall Islands has demonstrated that the transfer of the ship to Nigeria did not break the chain of causation, especially as the transfer took place “in circumstances in which Equatorial Guinea knew they would continue to be detained for a significant period or had no regard for how long the Vessel and crew would be detained”. The Tribunal’s Chamber agreed that the transfer of the vessel to Nigeria could not be likened to its release, and hence the causal link was not interrupted by that transfer (para. 526).
And this leads to the issue of Equatorial Guinea’s responsibility for whatever happened to Heroic Idun while in Nigeria and before its final release. Marhsall Islands has initially put forward substantial claims on Equatorial Guinea’s responsibility but later ended up withdrawing the bulk of those claims. What remained were “the unspecified claims of “loss, damage or injury” to the M/T “Heroic Idun” and its crew in the period from 11 November 2022 to 23 May 2023 after their “extra-judicial rendition”” (para. 528). On the one hand, those remaining claims were not substantiated by “sufficiently direct causal link” (id.). On the other hand, the claims that were withdrawn, while also requiring the demonstration of such “sufficiently direct causal link” in order to succeed, could have led to Equatorial Guinea’s responsibility for whatever happened to the ship and its crew while in Nigeria. It is rather unlikely that the Tribunal’s Chamber could or would not address “acts allegedly occurring in a third State” in any case whatsoever, even if such claims were to be substantiated by evidence and through the demonstration of causal link (which again, was not the case in Heroic Idun). And for the purposes of UNCLOS, the applicable law issue would not obstruct the determination of Equatorial Guinea’s responsibility, because the conduct towards and treatment of the ship and its crew would not need to be labelled anew as violations of UNCLOS or extra-UNCLOS rules (for instance human rights rules). Instead, that conduct and treatment would be mere facts consequent upon Equatorial Guinea’s detention of the ship in the first place.
It remains to speculate about whether the claims that Equatorial Guinea withdrew would have been successful in this case, as this would have depended heavily on causation and evidence. It is possible that concerns on that front led Marshall Islands to withdraw those claims. But it is also likely that Marshall Islands withdrew those claims because it was keen to reduce the element of Nigeria’s appearance in its own claims and thus avoid the situation it possibly feared – one in which Nigeria’s conduct would amount to a substantial part if not to the critical mass of the events around Heroic Idun, and hence one in which the Tribunal’s Chamber could have been more inclined to accept Equatorial Guinea’s admissibility objection based on the indispensable party doctrine. If that were to be the case, then one could wonder why the over-extended reading of the Monetary Gold case ought still to influence international lawyers’ minds when that expansive reading has been consistently rejected in the jurisprudence of three major international tribunals – UNCLOS judiciary, European Court of Human Rights and the International Criminal Court.
In the case at hand, the Tribunal’s Chamber was nevertheless able to award to Marshall Islands substantial amounts of damages under various headings relating to the stage after the ship’s transfer to Nigeria. This has furnished another legal – and also political – lesson to the effect that the intricacies of the scope of underlying claims do little to enable the relevant State to evade legal responsibility if it were to collude with another State while committing an internationally wrongful act. So far so good, but international courts and tribunals are under no legal obligation to stop at the point where the Tribunal’s Chamber stopped in this case owing to the nature and scope of pleadings. However, what the Chamber’s judgment has very usefully demonstrated in this case (yet again) is that the indispensable party doctrine is inapplicable in most cases and beyond the strict confines of the Monetary Gold context, and also that the doctrine of causation can operate as an independent doctrine placed in context with the doctrine of attribution and, when pleadings are in the appropriate condition, also account for the responsibility of the wrongdoing State right down the line.