Maritime interception of the Iranian tanker “Grace 1” in light of international laws

THEinterception of an “Iranian” tanker Grace 1 by the Royal Marines off the coast of Gibraltar on July 04 generated numerous political reactions, as it also raised many questions in the world of maritime transport and specialists in international sanctions. Beneath its apparent simplicity – British soldiers seize an Iranian oil tanker – the affair turns out to be of great complexity, at the crossroads between maritime law, international law, sanctions and embargoes. 

The purpose of this article is therefore to bring together the various open sources available in order to clarify the debate and to offer an analysis of both the substance and the form of the case.

Vessel

Le Grace 1 is a tanker with a deadweight of 300 tonnes, which classifies it in the “VLCC” (Very Large Crude Carriers) category. This category of tankers can only transit through the Suez Canal by first unloading part of its cargo, which often justifies a bypass of Africa. Built in 579 in South Korea at the Hyundai shipyard, it bears the IMO number 1997. It should be remembered that this is a unique number, which does not change throughout the life of the vessel (except fraud), difference in the name, which itself can change several times. Thus, the ship was called “Overseas Meridian” until 9116412, then “Meridian Lion” until 2011. It was then under the flag of the Marshall Islands.

Most of the information is available on the website “ Marine Traffic ". The shipowner is “Russian Titan Shipping Lines”, a company based in Dubai (the connection with Russia – apart from the name – is at this stage uncertain but possible). It seems that the Grace 1 or, the only ship of this “company”. The vessel appears to be carrying crude oil, as indicated by the Government of Gibraltar in a July 08 press release.

The ship was announced as “flying the flag of Panama” when it was intercepted, which left many experts perplexed, as the United Kingdom had apparently not contacted Panama beforehand.

It has since emerged that the Panama Maritime Authority (AMP) had withdrawn Grace 1 its flag on May 24, 2019, following an “alert” received from the government of Panama which indicated that the ship “ participated in or was linked to the financing of terrorism ". The AMP has declared having acted on the basis of the International Convention against the Financing of Terrorism of 1999 and the Panamanian transposition law of 2002.

“Deflagging” is a common act in maritime transport. The withdrawal of the right to fly the flag is an important act, because the ship must imperatively “find” another flag. In the meantime, many maritime law experts believe that there is a form of "universal jurisdiction" over ships without a flag: all states can exercise jurisdiction, until one state claims jurisdiction over it. -this. So what Iran did, but after the seizure at sea of Grace 1...

The issue of universal jurisdiction on ships without a flag is highly debated and it is also admitted that it must be limited according to general principles of nationality (we control our own nationals), territoriality (we control ships in our territorial waters), protection ( we protect the victims or the environment of a crime or an accident in progress), or even universality (we can always act, even outside of flagrante delicto, in the event of piracy, genocide, crime against humanity or terrorism).

The seizure by the British of a ship "without a flag" having taken place in the territorial waters of Gibraltar, it therefore responds to the principle of respect for territoriality in the exercise of universal jurisdiction: the authority of Gibraltar extends on all non-flag vessels passing through its territorial waters.

The input

On the night of July 04, 2019, a squad of the 42 Commandos of the Royal Marines approaches the Grace 1 from a helicopter AW159 Wildcat, while the tanker “was transiting the territorial waters of Gibraltar”. It was less than three nautical miles from British possession, the distance claimed by the United Kingdom off the coast of Gibraltar.

InterceptGrace1 Defense Analytics | Defense institutional communication | Embargo and military blockade
Photo of the interception, communicated by the MoD
The absence of wake and the verticality of the smoke indicates that the ship was stationary, as suggested in the official press release.

The operation, importantly, was carried out under the direction of the Gibraltar Port Police Authority, with the Royal Marines acting in “support” following a “request for assistance from the Gibraltar Government”. Very quickly, Iran responded by claiming “ownership” of the ship, indicating that it now considers itself to be the flag state. The map indicating the position and route of the Grace1 at the time of the interception was communicated by the Government of Gibraltar, which indicates that it had entered the territorial waters "voluntarily", for a "pre-arranged meeting (at sea)" in order to load provisions and spare parts.

GibralMap Defense Analysis | Defense institutional communication | Embargo and military blockade
Map communicated by the Government of Gibraltar. We see the Grace 1 at the time of the interception, in the territorial waters of Gibraltar (marked by a continuous brown line around the peninsula).

The Government of Gibraltar has declared having acted “in application of European sanctions against Syria”, because he had “serious reasons to suspect” that the Grace 1 was heading towards the refinery at the port of Banyas in Syria, owned by the “Banyas Refinery Company”, which is the subject of sanctions by the EU (Regulation 36/2012 – Annex II – point M21.56 of 23 /07/2014).

The legal bases for seizure

To understand the legal bases invoked by the British, we must look at the political status of Gibraltar.

Gibraltar is a British Overseas Territory. An overseas territory special status. It is part of the European Union, but not the Schengen area. Its status excludes it from the customs union, the common commercial policy, the common agricultural policy and the common fisheries policy. It should be noted that the population voted 96% to remain in the European Union, although its destiny is to follow that of the United Kingdom regarding "Brexit".

Gribraltar enjoys broad political autonomy, embodied by "Her Majesty's Gibraltar Government": while the Queen is the head of state, the territory has an autonomous parliament and government. The governor who represents the Queen is responsible to the United Kingdom government for the defense of the territory and matters of international politics and security, but the territory is largely autonomous in legal and regulatory matters and has a Prime Minister (Chief Minister). ), Fabian Picardo.

The intervention seems to be based on two local regulations: one taken on March 28, 2019 and the other on July 03, 2019, less than 24 hours before the collision.

The " Sanctions Act 2019 » n°2019-06 of March 28, 2019 defines the applicability of the various international sanctions in Gibraltar, whose local government thus recognizes the full application of UN and European Union sanctions[10].

The rule " Sanctions Regulations » of July 03, 2019 allows the Prime Minister of the Government of Gibraltar to designate and detain vessels against which he has “reasonable suspicion of violation of European Union sanctions”. The regulation also bears the nomenclature 2019/131, while the act designating the Grace1 and the 2019/132, which strongly suggests an “opportunity regulation” (the Grace1 remaining the only designated vessel).

The regulation allows for the “administrative” detention of a designated vessel for 72 hours in Gibraltar’s territorial waters, while a court rules on its status. The High Court of Gibraltar has pronounced the extension of detention on July 05. The retention can last a total of 90 days.

La statement to parliament of the Prime Minister takes up all the arguments of the Government of Gibraltar to justify the legality of the act. The Prime Minister also confirmed that a search had been carried out and interrogations were underway, with the commander and his second in command having been arrested.

It should be noted that the regulation offers very broad possibilities for seizure of the ship and its cargo: “in the interests of justice, international peace and security or the law” (sic). This point is crucial, because one of the major reasons why seizures of merchant ships are rare is the cost generated by the detention of the ship and its crew at the dock at the expense of the State carrying out the seizure. In the circumstances, the sale of more than two million barrels of crude oil alone could earn the Government of Gibraltar more than $100 million, which would more than cover most imaginable costs.

What the European sanctions say in the circumstances

The rule 36/2012 prohibits the import into the EU of petroleum products from Syria, but not the transit to Syria of petroleum products. It is therefore not on this basis that the government of Gibraltar can rely.

Collaboration with an entity designated by the sanctions (the Banyas refinery) appears to be the justification given.

Under Article 14 of Regulation 36/2012[1], "all funds and resources belonging to EU designated entities are frozen, no funds or economic resources may be made available, directly or indirectly, to the intended entities and it is prohibited to knowingly participate in any activity intended to circumvent measures freezing and non-provision of funds and resources”.

The reasoning justifying the collision could thus be as follows:

  • The Grace 1 brings crude oil to the Banyas refinery (this remains to be proven – but documents were seized on board and testimonies from the crew obtained).
  • The sale of petroleum products resulting from the refining of this oil would be likely to provide resources to the Banyas refinery,
  • The Banyas refinery belongs to a company designated on the list of entities for which funds are frozen on EU territory and any “circumvention” activity is prohibited,
  • The Grace 1, by entering the territory of the Union, is “guilty” of violating a ban on circumventing the measures of non-provision of resources to a designated entity,
  • The Grace 1 having been deflagged by Panama and having no known flag, the Government of Gibraltar has the "right" to exercise jurisdiction as long as it is in its territorial waters without reference to any country, for, in circumstances, enforce EU sanctions which apply "on board any aircraft or vessel under the jurisdiction of a Member State" according to the instructions relating to the application of EU sanctions,
  • Under local regulations, the Gibraltar government has the right to detain the vessel on suspicion while an investigation is carried out to look for possible evidence.

We see, the devil is in the details and, at no time, does the reasoning involve Iran, nor the United Kingdom government in London...

Beyond the form, the substance – elements of the international political context

There is no doubt, on a political level, that London wishes to participate in the American approach of “maximum” pressure on Iran. But the important thing for the British is to do so while absolutely safeguarding the legal bases and the integrity of the law of the sea. Vis-à-vis Russia (in the Black Sea) and China (in the Taiwan Strait and in the South China Sea), Western countries intend to preserve freedom of navigation and international law. It is therefore not a question of engaging in boarding of Iranian oil tankers without any legal basis. This would put into perspective any Russian or Chinese violation of maritime law against a backdrop of respect for variable geometry law.

In the end, the British justification appears thin, but nevertheless convincing. It does not constitute an “extraterritorial extension” of European sanctions on Panama or Iran, since the ship was “deflagged”. Nor does it constitute an operation going against the right of transit, since the Grace 1 had voluntarily entered the waters of Gibraltar with the intention of refueling there.

It clearly represents a police action by the coastal State, which exercises jurisdiction in its territorial waters and enforces its laws and regulations. One point is important to consider if the legal justification is accepted by the European Union (the Government of Gibraltar has officially notified Brussels): all the States of the Union could (should?) therefore do the same. But the Grace 1 must have passed at one time or another in Spanish waters to cross the Strait of Gibraltar, as indicated by this map of territorial waters:

GibralMapWaters Defense Analysis | Defense institutional communication | Embargo and military blockade

Spain, which accused (with a patent but customary lack of tact) the government of Gibraltar of acting under "American pressure" could therefore, in any event, have seized the ship, as well as any ship may be suspected of violating European sanctions... It should be noted that Madrid is following the matter closely: as Spain does not recognize the British territorial waters around Gibraltar, its government is preparing to send a protest to London for "violation Spanish territorial waters. Madrid nevertheless declared not having opposed the intervention which concerned the application of European sanctions. A Spanish ship also “monitored” the operation.

On the merits of the case, there is no doubt that it was Iran which was targeted and that the United Kingdom government was "heavily involved": in the absence of any link between the Grace 1, its shipowner and the Banyas refinery as an open source, the intelligence could only come from London or Washington. The timing of the publication of the Gibraltar regulations also suggests that the seizure was long premeditated, as was the presence of the 42 Commandos, which is based in Devon and which it is difficult to imagine was deployed on the basis of an unexpected request from the Gibraltar Port Authority. Finally, the deflagging by Panama on the basis of a report for “terrorist financing” the details of which have not been communicated again suggests a premeditated Anglo-Saxon action.

London thus dissociates itself "a little" from the position of the E3 (France, Germany, United Kingdom) which until now intended to maintain the JCPOA agreement on Iranian nuclear power despite the American withdrawal. This seizure, occurring three days after the announcement that Iran had exceeded its authorized stock of enriched uranium, is part of a logic of escalation of symbolic tensions around Iran's capacity to export vital oil for the survival of its economy.

For the record, July 11 the frigate HMS Montrose must haveinterpose between the tanker british heritage and ships suspected of being Iranian that threatened the latter in the Strait of Hormuz. The British frigate sent a simple verbal warning to the attackers who retreated, which also shows that a certain amount of restraint is still required on both sides. To face this type of threat, the Royal Navy announced on July 12 the dispatch of a second vessel to the area, the HMS Duncan, a Type 45 anti-aircraft destroyer comparable to the Forbin anti-aircraft defense frigates of the National Navy.

More broadly, the affair raises the question of maritime interceptions in the context of the application of UN resolutions or European sanctions. The subject is sensitive, particularly in connection with North Korea which engages in numerous oil transshipments at sea to circumvent sanctions. An avenue to explore therefore. Whether or not we are in favor of increased pressure on Iran, the subject is in any case fascinating with regard to the issues of maritime law or international sanctions.


Stephane Audran

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