Public International Law Key Insights: Law of the Sea & Environmental Disputes

February 28, 2024

Red Eagle Exploration v. Colombia is the second in a trilogy of claims brought by Canadian extraction companies against the Colombian State after it banned mining activities in high-altitude wetland regions known as páramos. In a split decision, the tribunal dismissed Red Eagle's ("RE") claim in its totality.

In 2010, RE took ownership of a gold mining exploration project. Subsequently, the Colombian Environment Ministry notified RE that some of the mining titles fell within páramos regions. Mining exclusion zones affected these areas. In 2016, the Colombian Constitutional Court ordered the cessation of mining projects in the páramos.

In 2018, RE filed an ICSID claim arguing it was owed compensation by Colombia. It did so on two grounds:

1. Breach of the Canada-Colombia Free Trade Agreement ("FTA"): RE claimed Colombia had failed to comply with the prohibition on expropriation under Article 811 FTA.
2. Minimum Standard of Treatment ("MST"): Secondly, RE asserted its investments had not been treated by Colombia per the minimum standard of treatment expected by customary international law (and incorporated into the FTA by Article 805).

The tribunal swiftly rejected the first argument. Public International Law did indeed protect against the expropriation of certain rights, in this case relating to mining in the páramos. However, it found that, as a matter of domestic law, RE was unable to demonstrate that it acquired a vested right to engage in mining activities in the páramo area.

Similarly, the second argument was dismissed. The majority found the MST did not require Colombia to honour any representation it made to RE that generated a legitimate expectation. Even if the MST did protect legitimate expectations, RE failed to convince the tribunal that the Colombian Government had made any relevant representations to it at all.

The two grounds were identical to those argued in Eco Oro v. Colombia. Here, however, the tribunal reached a different conclusion as to what the MST required.

March 26, 2024

In April 2019, Ukraine initiated arbitral proceedings against Russia under the United Nation Convention on the Law of the Sea ("UNCLOS"). This related an incident in November 2018 where Russia had detained three Ukrainian vessels, including their twenty four personnel, on the basis that the crew were in breach of Russian criminal law.

After a tribunal was constituted to examine Ukraine's claim, Russia issued a challenge alleging that two of the five-Member Panel lacked independence and impartiality. The two arbitrators in question were Professor McRae (President) and Judge Wolfrum. Russia's challenge was based on the fact that those two arbitrators had voted in support of a declaration issued by the Institute of International Law on "Aggression in Ukraine". It argued that the text of the declaration alleged Russia had committed "gross violations of international law" in language that was "manifestly accusatory".

In a split decision, the majority of the three unchallenged arbitrators agreed that support of the declaration by Professor McRae and Judge Wolfrum gave rise to 'justifiable doubts' as to their impartiality in the arbitration. Sir Christopher Greenwood dissented on the application of the "justifiable doubts" test to the facts, but agreed this was the correct legal standard to apply.

The Decision on Russia's challenge was made on March 26, 2024. On the same date, the concerned arbitrators resigned. The appointment of a new President is understood to be pending. The remaining members of the tribunal are Judge Gudmundur Eiriksson (Iceland), who acts as Acting President pending the appointment of a new President, Professor Alexander N. Vylegzhanin (Russian Federation), and Sir Christopher Greenwood (United Kingdom).

April 12, 2024

A tribunal, administered by the Permanent Court of Arbitration, has begun hearing a case filed by Azerbaijan against Armenia under the Berne Convention. This Convention aims to protect endangered and vulnerable species, in addition to wild flora, fauna, and habitats. Both States are signatories.

The legal dispute arises out of armed conflict between the States in areas surrounding the South Caucasus and Nagorno-Karabakh regions. Falling within Azerbaijan's internationally recognized borders, these areas have traditionally been home to a population of ethnic Armenians. After it re-took control of these regions in 2020, Azerbaijan claims to have found 'shocking evidence' of Armenia's failure to protect biodiversity, including large-scale deforestation and pollution. This, it argues, caused the endangerment of five hundred wildlife species.

Conflict in these specific regions has given rise to a multitude of ongoing legal disputes between Azerbaijan and Armenia. Among these are:

1. A pending action before the International Court of Justice under the Convention to Eliminate All Forms of Racial Discrimination (see ICJ case summary in "State-to-State Disputes" section).
2. A pending interstate application with the European Court of Human Rights under Article 2 (Right to Life) and Article 3 (Freedom from Torture) of the European Convention on Human Rights.
3. An arbitration request filed by Azerbaijan on the basis of the Energy Charter Treaty.

The present proceedings represent the first interstate arbitration to be filed under the Berne Convention. The outcome has potentially far-reaching effects. If Armenia is ordered to pay reparations for environmental damage, this will set a precedent for putting an economic value on biodiversity and environmental destruction. Further requests for arbitration under the Berne Convention may swiftly follow.