EU Lamar Pa Operation EUNAVFOR MED IRIN! Application of the concep of Savercign Imnnunity to the event of M¥ CIRKIN 1. PURPOSE This Note aims to provide a legal analysis on the possible application of the concept of sovereign immunity of merchant vessels pursuant to the law of the sea to the event of MV CIRKIN (Tanzanian flag — IMO nv 7728699), The analysis is based only on the information provided by the Turkish warships at the moment when the event occurred. Confirmation of the above information has been requested to the Tanzanian Ministry of Foreign Affairs and East African Cooperation and to the Permanent Delegation of Turkey to the European Union, This Legal Note might be used for futute similar cases. » EVENT 10 June 2020, sailing from MV CIRKIN, flagged in Ta gseorted by three Turkish HAYDARPASA (istanbul, Turkey) warships. The frigate SPHTSAI. naval asset: D IRINI, proceeded to several : Co VHF exchanges the outcome interrogations speci were: a) No answer was given by I b) To the querries, a TU wa Republic of Turkey": e) To a second hailing the information MV supplies to Libya to | Tunis after Litya,eu LIMITE a) do net apply with respect (0 Vessel 292 - 2016, Paragraph 7) Pe well. It is important to cannot ignore its The high seas off the coast of Libys itled to sovereign immunity under international law oe eee constraint is ineluded in the Rules of Engagement of the Ope} , = nity underline that the correct application of the sovereign ae u Treeat Pamework of International Law. : eral legat framework of Internati cectors of international Contextualization with the get pea on In particular. the principle of sovercign immunity is reflected in different law: tion an the Law of the Sea (UNCLOS - 1982); * Art. 96 of the United Nation c ees + Ar. 3 of the Brussels Convention (1926) and Art. I of its Additional Brotnes! a 343i ache ited Nations Convention on Jurisdictional Immunities of States an * Art 16 of the Property (UNCHISTP - 2004), Article 96 of UNCLOS lays down four conditions for a ship to be considered as covered by sovereign immunity: ¥ Owned or operated by a State; Y Governmental nature of the service; Y Exclusive non-commercial nature of the serviee. All conditions must be fulfilled in order to consider the ship under sovereign immunity. Owned or operated by a State Axticle 3 of the Brussels ity from jurisdiction of a foreign State in relation to its employed exclusively at the time when the cause of action a ial servic”. The meaning of the term “ope ined in Article I of the Additional ssels Convention “extends or could be r time er voyage”. 85 well. in fact, in accordance to The aforementioned provi the International Law Ce is encompasses the “poss “charter” of ships by a State, whether the charter is for In this matter, it is impo Commission of 24 Febru by US armed forces. withon In the case of MV of Turkey on the written answer of the European ‘civilian merehant ships chartered or foreign flagged vessels). st communication MV did not in any wayBU LIMITE, ‘The Turkish control of 5] ‘ontrol of MV CIRKIN can be supported also by the fact that the ship was sailing escorted by. chi i hree Turkish warships when the event occurred d. Goveramenta) nature of the service The G i ‘he Governmental nature of the service requirement of MY CIRKIN is endorsed by three different aspects: 1. The two affirmations made by Turkish warships saying first that MV CIRKIN was “under control and protection of the Republic of Turkey” and then by specifying that the “vessel was chartered by Turkey”. The answers received by Turkish warships can be considered 8S atimmations of the Turkish Goverment. : 2. No tefutation was given by MY CIRKIN conceming the communication of the ‘Turkish warships. 3. MY CIRKIN was sailing escorted by three Turkish warships. ixelusive non-commiercial nature of the service ‘The critesia of exclusivity of the governmental non-commercial service (“used only”) must be analysed in accordance with the provisions stated in Article 3 of Brussels Convention (1926), including through the interpretation provided in Aaticles I of the Additional Protocol (1934), and 16 of UNCJISTP (2004), In fact, the exclusis nt has to be assessed in reference to the specific time frame (for the time b srvice and net for example to the chartering contract, ‘The transportation of medical supplies: COVID-19 can, if so claimed, consti immunity. Furthermore, this immunity, also in the Note Verbale of BU Del 2017, where the vessel Al Luffy, operated d only on government non- commercial _service (humanitarian AVEORMED Operation Sophia to be entitled to sovereign it mature of the service can be deduced from the nature of the ca Convention sets out government vessels as for use exclusively for ary includes, for government_non-commercia instance, “cargo involved in é supplies”. In other words, the covered by immunity and u date: O1/07/2EFU LIMITE seed Tor MSC" foreign ‘as a matter of law ~ a (ge immuni Ii follows that — State to be covered by sovereign immunity ‘ional law provision, In fact, it is « pare munity of a forcign-flagzed ant the U.S, does not claim soverci I vessels. ‘As a matter of policy, voyage or MSC foreign-fagged time chartered foreign-flagaed chartered vessel can be claimed by Such claim would not constitute a breach of any internat auerion of policy a Sse can test claim or not the sovercign im veer anes fo govern on-comimerval service. Ta this regard howevss it is impor itega answer of the Commission dated 24 February 2012 confirming the niauniy for civilian merchant ships chartered by US armed forces. CONCLUSION Based on . eastern oe aw of the sea concept of sovereign immunity could be Se ears tem Hen event, The MV wats chartered by the Government peace oe sek ere eae {coutro! and protection) and allegedly aeseserlan escheat a non-commercial service (government procured eet nad nuse tae ieee of the veracity of the claim fo soverign Re ee ae ing, visit and search of the vessel by Op Irini assets comsticuted a'vicisiion oti baths accompanying Turkish naval forees, would have ¢ provisions of the UNSCR, the RoE and the Law of the Sea.