A legal analysis by two professors at the University of Glasgow has raised further questions over the seizure of a Russian oil tanker and the lengthy detention of its crew in Scottish waters.
The Marinera, known previously as Bella-1, was intercepted by the U.S Coast Guard and the British army between Scotland and Iceland in January.
It was then taken to the Moray Firth where its crew were held without charge for close to three weeks, before two of them were deported to the United States despite a court order forbidding it.
A new analysis by Tom Mullen, Professor of Law at the University of Glasgow, and Charlie Peevers, Professor of International Law at the same institution, entitled 'A Legal Black Hole in UK Waters? The Case of the MV Bella 1' takes a deeper look at some of the issues involved.
Questions facing both the UK and Scottish Governments include:
- Was the seizure of the vessel legal in the first place?
- Why was no attempt made to exercise legal jurisdiction?
- Were the crew denied their rights under both Scots and international law?
- Why were American forces permitted to remove two men with no extradition order, in defiance of Scotland's highest court?
Both governments have repeatedly refused to answer detailed questions about the affair.
On any occasion where the Scottish Government has been contacted by The Herald about the Marinera, they have referred to a statement John Swinney gave to the Scottish Parliament and refused to elaborate further.
All of the questions below have been put to both the UK and the Scottish Government. The latter once again referred to Mr Swinney's statement to parliament.
As previously reported by The Herald, the ship was under U.S domestic sanctions but had not been sanctioned by the UK or the United Nations.
The Bella-1 was re-registered to Russia and renamed Marinera during its voyage, which is allowed only "in the case of a real transfer of ownership or change of registry". The chairman of Russia's State Duma committee on international affairs described the seizure as "21st Century piracy".
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Professor Peevers and Professor Mullen note that the UK Government "has not set out in detail its position on the legality of the seizure in international law" but appeared to be arguing it was a stateless vessel at the time.
John Swinney, meanwhile, in his statement to the Scottish Parliament said his government was a "firm supporter" of the enforcement of international sanctions, despite the fact the Marinera was under none.
The professors describe the position of both governments as "eminently contestable".
Following the seizure of the vessel it was transported to the Moray Firth.
For close to three weeks 28 people were held on the ship, without charge and without the opportunity to access consular assistance, before all but two were released on January 26.
Aamer Anwar, the lawyer for the Marinera's captain, previously told The Herald the men had been "effectively taken hostage in the UK by a foreign power" with no action by the Scottish Government to assert their legal rights.
Mr Swinney told Holyrood that "the Scottish authorities had no legal basis whatsoever for boarding the vessel at any time" but this is open to debate.
Professors Mullen and Peevers note that warships are immune from the jurisdiction of other states even if they are in that state's territorial waters, and there is "substantial immunity" for foreign government ships which are operated for non-commercial purposes.
The academics assert that the UK was indeed entitled to exercise both civil and criminal jurisdiction over the tanker, even if it could not do so for the American ships which accompanied it.
They note: "If there are good legal arguments to support the view that the UK authorities lacked jurisdiction to take action affecting the Bella 1, they have not yet been publicly articulated by either the UK or Scottish Governments."
While domestic jurisdiction would have been limited had any of the crew been transferred to a U.S warship, multiple accounts from those on board assert that they were held on the Marinera and slept on the galley floor. They therefore had the right to invoke all legal rights and remedies under Scots law.
The crew also had rights under international law, including the right to consular assistance, the rights not to be subjected to arbitrary arrest or detention, and the right to a trial within a reasonable time.
Under article 36 of the Vienna Convention on Constitutional Rights, the UK is obliged to offer consular access to foreign nationals, even if they have been brought into its territory by a third state.
Both the Ukrainian and Russian consuls said they had not been given access to their compatriots on the ship, while a Court of Session filing on behalf of captain Atvandil Kalandadze said the Georgian had not been offered consular assistance.
The UK also has obligations under the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR).
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Given the First Minister has said that there was no legal basis to board the vessel "at any time" it would appear no representative of the Scottish Government boarded the vessel and there is no indication anyone from the UK Government did either.
As the professors note: "The only bases on which either Government could have been satisfied that the rights of the crew had been respected would be that they had received assurances from the US authorities to that effect or that the members of the crew had unequivocally waived their rights. There has been no indication that any such assurances were given; only their being in good health was mentioned in the First Minister’s statement."
One of the Russian citizens, Maxim Karpenko, said that he and the other detainees were taken to the toilet under machine gun guard and "when we asked for a pill (for illness) they ignored us".
The United States also had no legal power to detain the crew on British soil, meaning if - as it would appear - the men were being held against their will that detention was illegal. There is, the professors say, "simply no legal basis" for their detention by American forces.
Then there's the issue of the removal of captain Kalandadze and his first officer Oleksandr Raskovskyy.
A petition for judicial review filed by Mr Anwar to the Court of Session citing illegal detention and the lack of consular assistance for Mr Kalandadze saw an interdict granted ordering that the men not be removed.
The court was then informed that the men had already been taken out of Scottish waters.
While the U.S did begin the process of seeking extradition by making a request for mutual legal assistance, it is unlikely it would have been granted by the courts.
A requirement of the extradition act is that the crime for which extradition is being sought is also a crime under UK law - given the ship was under domestic U.S sanctions, any alleged breach would not meet that requirement because it wouldn't be an offence in UK law.
The crew, aside from captain Kalandadze and Mr Raskovskyy, were disembarked from the Marinera on January 26 and supported in their "onward journey to a location of their choice" after being processed by Border Force in Inverness.
It remains unclear who was responsible for the process of taking them from the vessel - if it were Scottish or British authorities, further questions would be raised about why they assisted with disembarking having never sought to protect their rights beforehand.
It further remains unclear where the 16 Ukrainian citizens released went, with the assistance of the UK Government. They did not seek asylum and did not seek consular support from the Ukrainian embassy in London or the consulate in Edinburgh. The Home Office said it would not comment on individual cases.
Professor Mullen and professor Peevers conclude: "It is dispiriting to see a UK Government, which has repeatedly affirmed its commitment to the international rules-based order, fail to address obvious questions raised by U.S unilateral action. It is equally distressing to observe the apparent lack of interest of both the UK and Scottish Governments in enforcing domestic laws that guarantee individual rights and that are the foundation of constitutional order.
"Add to this the supine response of elected representatives and this amounts to a fundamental failure of democratic institutions of accountability who seem content to have allowed the creation of a legal ‘black hole’ in the UK despite the legacy of the law-free zones attempted during the wars in Iraq and Afghanistan. Their failures to uphold the law in the case of the Bella 1 may come back to haunt them."
A UK Government spokesperson: "Deterring, disrupting and degrading the Russian shadow fleet is a priority for the UK Government. Alongside our allies, we are stepping up our response to shadow vessels – and we will continue to do so.”
