The Tanker Incident in Gibraltar: Non-Obvious Legitimacy

The seizure of an Iranian tanker by the authorities of Gibraltar has aggravated Iranian-British relations and could lead to further escalation. The oil transported by the Iranians was supposedly intended for the Syrian government. Tehran has already threatened to respond by detaining British ships. Meanwhile, the authorities of Gibraltar have extended the detention of the tanker for two weeks, increasing the chances that the crisis will develop further. 

The reason for the detention of the tanker was its alleged violation of EU sanctions against Syria. In numerous media publications, this allegation is presented as self-evident. Meanwhile, the reference to EU sanctions raises serious questions. Indeed, Brussels has imposed broad-based economic restrictions on Bashar Assad’s government. Most of them were valid from 2011-2012. But the legitimacy of the detention of a tanker with reference to EU sanctions is not completely clear. Brussels may find itself in a difficult position. The vessel was detained under EU law, which potentially makes Brussels a party to the conflict.

EU sanctions against Syria are mainly regulated by two European Council documents: Decision No. 2013/255 /CFSP (hereinafter referred to as Decision 255) and regulatory provisions on restrictive measures on the situation in Syria No. 442/2011. Article 5 of Decision 255 directly concerns oil issues. It prohibits the import and transportation of crude oil and petroleum products from Syria. The ban applies to the financing and insurance of such activities. However, Article 5 says nothing about a ban on the supply of oil to Syria. The ban only applies to the supply of aviation fuel (Article 7a), but in this case there is no relation to crude oil. Article 8 prohibits the supply to Syria of equipment and technology for the extraction of oil and gas, as well as the maintenance of such equipment. But again it says nothing about the oil itself. 

A hint of the rationale for the arrest is contained in the comments by Chief Minister of Gibraltar Fabian Picardo. He mentions that the Iranian oil allegedly may be destined for Syria’s Banias Oil Refinery. The company is included in the EU sanctions list for Syria, which is mentioned in an Annex to Decision 255. The company was introduced to the list on July 23, 2014. The reason given is financial support for the Syrian government. According to this logic, the basis for arrest, apparently, could be stated as Article 1 of Decision 255. It prohibits the supply of any goods, technologies and equipment that can be used for internal repression in Syria. However, the article explicitly mentions that the ban applies to the EU member states. It says nothing about the extraterritorial effect of the sanctions, that is, about their application to third countries, including Iran. 

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However, Article 26 provides a certain clue. It states that if an EU member state has reasonable grounds to believe that a ship is transporting prohibited goods to Syria, it should conduct an inspection. If the suspicion is confirmed, the goods should be confiscated and made available to the member state. In other words, the legal reasoning, apparently, comes to the fact that the oil of the Iranian tanker is directed for a Syrian enterprise under sanctions. This means that the vessel may be detained and inspected, and its cargo subsequently confiscated. The main question is how exactly the authorities of Gibraltar and the UK will be able to prove that the oil was intended for the Banias Refinery? After all, in theory, a tanker could come to the port of any other country and transfer oil to any other refinery. It is far from obvious that the documentation of the arrested tanker clearly and unequivocally presumes the participation of Banias Refinery. 

It is noteworthy, that at present the EU cannot use sanctions against Iran as a basis for seizing a tanker. Unlike the United States, the EU did not withdraw from the JCPOA, and therefore did not renew the effect of restrictions on the import of Iranian oil. Such restrictions are not envisaged by UN Security Council Resolution No. 2231. However, the fingerprints left by American influence are still clear in this case, especially since John Bolton personally welcomed the seizure of the tanker, and, according to Spanish Foreign Minister Josep Borrell, the detention was made at the request of the United States.

The authorities of Britain and Gibraltar could be guided by the US laws, as well as the recommendations of individual US agencies. Similar to EU law, the United States also prohibits the purchase of Syrian oil (executive order 13582 2011). The Banias Refinery is included in the SDN list of the US Treasury, that is, any commercial interaction with it is prohibited according to US jurisdiction. With Decree 13846 on August 6, 2018, Donald Trump banned the export of oil from Iran, and then cancelled the exceptions that previously existed for eight countries. In addition, on March 25, 2019, the US Treasury issued recommendations to the international community regarding the sanctions risks of oil transportation involving Iran and Syria. The Banias Refinery is mentioned in the document. In other words, the US sanctions could well have served as a guide for the arrest of the tanker. In this regard, the participation of the American authorities is becoming an important issue. If the seizure was made at the request of the United States, then American law should serve as its basis. In this case, references to EU sanctions by the authorities of Gibraltar look quite strange. If its basis is still the EU sanctions, then it remains to be proven that it was the Banias Refinery that stood to receive the oil.

In any case, it is advisable for Brussels to provide a detailed public legal commentary on the arrest of an Iranian tanker, since the use of force was made with reference to EU law. Without a clear explanation of the reasons for the detention of the vessel by the EU, Tehran’s claims remain natural, and delaying the issue will only increase political tensions. On the Iranian side, a public and detailed legal view is also advisable. A dialogue on legal terms is preferable to mutual threats.

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