Significance of ITLOS: Success or Failure?
Yashasvi Nain
Rajiv Gandhi National University of Law, Punjab
1. INTRODUCTION
We all agree to this fact that owing to the encroachment of international law upon national sovereignty, there has in the past been a distinct reluctance towards creating international supervisory mechanisms. Instead, there has been a ‘swelling of the normative network without any corresponding development in supervision’[1]. International rules have historically yielded to domestic law, and have been referred to as ‘quasi’, ‘near’ or ‘soft’ laws, due to the difficulty encountered in enforcing them[2].
However, with the growing interdependence between nation states, whether economic, cultural, environmental, military or otherwise, we can no longer merely rely on the reciprocal entitlement principle or a nation’s goodwill towards common values to assist in the enforcement of international law. The significant number of war crimes and crimes against humanity that have occurred since the end of World War II, including in Indonesia, East Pakistan, Burundi, Cambodia, Rwanda, Bosnia and Iraq, emphasise this point.
Background:
The idea of forming a separate tribunal for the matters related law of the sea came on 3 December 1973 at New York in the opening of the third United Nations Conference on the Law of the Sea during which the UN Convention on the Law of the Sea was drafted. Within one year of the conference an informal working group was formed to discuss all the matters pertaining to the settlement of disputes which could arise out of the application or interpretation of the Convention. This working proposes three different types of dispute resolution mechanism i.e. through arbitration, by approaching the International Court of Justice (which was already in existence at that time) and a tribunal for the law of the sea. These propositions were made on 27 August 1974 at Caracas therefore it is popularly known as the “Document of Caracas”[3]
The International Tribunal for the Law of the Sea is a judicial body created by the 1982 United Nations Convention on the Law of the Sea (hereinafter “the Convention”), which , as of now, has been ratified by an impressive number of 161 countries, from all regions of the world, both coastal and land-locked.
Jurisdiction:
ITLOS is competent to adjudicate on cases where some or all of the parties may not be States. In this context, ITLOS is different from other international courts such as, for example, the International Court of Justice (ICJ). As is well known, only States may be parties in cases before the International Court of Justice. This means that the ICJ cannot accept or deal with a dispute if one of the parties involved is a non-state entity[4]. For example, a dispute between a State and a multinational corporation or an inter-governmental institution such as the European Community cannot be submitted to the International Court of Justice. ITLOS, on the other hand, is able to deal with such cases[5].
This provision is an amplification of Article 288 of the Convention. That article states that the Tribunal (and other judicial bodies referred to in Article 287 of the Convention) shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention which is submitted to it in accordance with the agreement.
By virtue of these provisions, ITLOS can act as a judicial body for disputes arising under a convention or agreement other than the Convention on the Law of the Sea. This will be so where such a convention or agreement provides that disputes arising in relation to any of its provisions may be submitted to ITLOS.
2. WHY ITLOS IS CONSIDERED AS A FAILURE
When we compare case docket of ITLOS with other judicial organs then it seems that ITLOS is not successful in achieving its goals. In its first ten years (1946-1956), the ICJ decided 20 contentious cases and issued 10 advisory opinions. Of course, the ICJ’s jurisdiction reaches virtually all international legal issues, so it might be unfair to compare it to a “specialized” international tribunal such as ITLOS. At the same time, some specialized international tribunals have far exceeded ITLOS in terms of their caseloads. For example, when the WTO celebrated its 10 year anniversary a couple of years ago, it could boast over 300 cases[6] in its first decade.
Moreover the graph of ITLOS is similar to that of the trajectory of the International Centre for the Settlement of Investment Disputes (ICSID). Between ICSID’s formation in 1972 and its ten year anniversary in 1982, it too heard only 13 disputes. [7]
3. ROLE OF ITLOS IN PROMOTING INTERNATIONAL LAW/OR MAINTINING PEACE AND SECURITY
Since its establishment the Tribunal, examined a question of great significance i.e., its general competence in maritime delimitation cases. In that regard, Article 288[8] of the Convention conferred jurisdiction on the Tribunal, as well as on the International Court of Justice or on an arbitral tribunal, to deal with any dispute concerning the interpretation or application of the Convention. Maritime delimitation disputes were those concerning the interpretation or application of the Convention and, therefore, such disputes were subjected to compulsory binding settlement under Part XV, section 2, of the treaty if, and to the extent, that section 1 did not provide otherwise. At the Tribunal’s twenty-third session, on 16 March, the Tribunal adopted a resolution to form a standing special chamber known as the Chamber for Maritime Delimitation Disputes, it would be available to deal with disputes in that field, which the parties agreed to submit to it concerning the interpretation or application of any relevant provision of the Convention and of any other agreement that conferred jurisdiction on the Tribunal.
Cases before the Tribunal:
A great deal has been written and said about the Tribunal’s shortage of cases. Although it could have entertained more cases than it has, the fact is that States have made greater use of the Tribunal than is commonly believed. Since 1998, when it received its first case, a total of 18 cases have been filed. Of these, 13 have been resolved, two were discontinued and the last three cases, instituted in the past 12 months, are under way.
Of the 13 cases that have been resolved, eight were prompt release cases,[9] four involved provisional measures[10] pending the constitution of an Annex VII arbitral tribunal and one dealt with compensation for the illegal arrest of vessel. The majority of these cases concerned prompt release of vessels and crews detained for alleged violation of coastal States’ fisheries regulations in the exclusive economic zone. The Tribunal has developed a substantial corpus of jurisprudence in this regard.
The two discontinued cases were case No. 7 – Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile / the European Union) and Case No. 9 – The “Chaisiri Reefer” 2 Case[11], Prompt Release.
Case No. 7 was submitted to an ad hoc Special Chamber of the Tribunal formed under article 15, paragraph 2, of the Statute of the Tribunal.[12] In March 2001, the parties informed the Special Chamber that they had reached a provisional arrangement concerning the dispute and requested that the proceedings before the Chamber be suspended.
The “Chaisiri Reefer 2” prompt release case was also discontinued at the request of the parties as the detaining State had released the vessel, cargo and crew before the Tribunal could begin to deal with it.
4. MARITIME DELIMITATION JUDGMENT: A RAY OF HOPE
On 14 March 2012, the Tribunal gave a judgment in its first maritime delimitation case.[13] With regard to the continental shelf beyond 200 nautical miles, the Tribunal first established that it had jurisdiction to delimit the continental shelf in its entirety. It then examined questions relating to, inter alia, the Parties’ entitlements to a continental shelf beyond 200 nautical miles, and the meaning of “natural prolongation” and how it inter-relates with that of “continental margin”. From this examination, the Tribunal concluded that the Parties had overlapping entitlements to the continental shelf beyond 200 nautical miles and the Tribunal proceeded to effect the delimitation. In this connection the Tribunal stated:
“Article 83 of the Convention applies equally to the delimitation of the continental shelf both within and beyond 200 [nautical miles].”[14]
The Tribunal further observed:
“the delimitation method to be employed in the present case for the continental shelf beyond 200 nautical miles should not differ from that within 200 [nautical miles]. Accordingly, the e
quidistance/ relevant circumstances method continues to apply for the delimitation of the continental shelf beyond 200 [nautical miles].”[15]
Brief Facts of the case:
On 13 December 2009 through a letter, Ministry of Foreign Affairs informed the President of the ITLOS that arbitral proceedings have been instituted against the Union of Myanmar[16] under Annex VII of the UNCLOS.[17] Due to disagreement between both the countries no agreement for equitable delimitation of maritime zones between them was ever reached. This disagreement resulted into a deadlock in the negotiations which eventually obstructed the exploration of natural resources in the Bay by both the countries. Having failed to resolve the dispute, on 08 October 2009, the Government of the People’ Republic of Bangladesh instituted arbitral proceedings against both the Union of Myanmar and the Republic of India pursuant to Annex VII of the UN Convention on the Law of the Sea (hereinafter “UNCLOS”) by submitting Notifications and Statements of Claim to the diplomatic representatives of both States in Dhaka[18]. The purpose stated by the Bangladesh in its notification was to secure the full and satisfactory delimitation of Bangladesh’s maritime boundaries with India and Myanmar in the territorial sea, the exclusive economic zone and the continental shelf in accordance with international law.
Both parties thereafter accepted the jurisdiction of ITLOS for resolution of the dispute and transferred the case to the ITLOS. On 14 December 2009, the case entered the docket of the Tribunal as the 16th case. In addition to 21 members of the Tribunal, two ad-hoc judges were also appointed by the parties, Judge Thomas Mensah by Bangladesh and Judge Bernard Oxman by Myanmar.
Significance of the judgment in this case:
Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar[19], which will be considered in this study is the latest judgment in this field and first of its kind, delivered by ITLOS. This case is important in various aspects but in particular, for three reasons. Firstly this is the first instance where the ITLOS has decided a case concerning the maritime delimitation on merit. Therefore it is going to indicate its approach towards maritime boundary delimitation as compared to International Court of Justice and other international tribunals.
Secondly one of the important issues in this dispute relates to the legal rights and interests of third States/parties. This decision will also be an important point of reference on the on-going dispute between the Bangladesh and India concerning their maritime boundaries on the other side of the Bay of Bengal. As evident from the map in figure 1, the relevant area, which was the subject matter of the dispute, is in a highly complicated geographical position. Thirdly, it is the first ever judgment of ITLOS which directly addresses the delimitation of the continental shelf beyond 200 nautical miles which evidently lead to some novel legal issues in the judgment.
5. BENEFITS OF ITLOS OVER OTHER ALTERNATIVE MECHANISM
Now the question arise why should a State party approach to ITLOS instead of arbitration or approaching ICJ, which is well established forum. For this reason we have to discuss the advantages of ITLOS over these alternative remedies.
Firstly, ITLOS is a judicial body established by the United Nations. It is well established that the decisions of the judicial bodies may be regarded as carrying greater (political rather than legal) authority than that of the arbitral tribunals. This is the situation with ICJ and hope same will be applicable to ITLOS.
Secondly, there is a provision for the developing countries who accept the ITLOS jurisdiction may get financial assistance[20]. It is clearly specified that the developing States which are parties to a dispute before the Tribunal may qualify for financial assistance to help them cover the costs related to lawyers’ fees or travel and accommodation of their delegation during the oral proceedings in the Tribunal.
Thirdly, the fact that the tribunal is a specialized judicial body places it in a better position to decide cases that demand special expertise. Notable examples are fisheries, marine environment and marine research. Furthermore, the tribunal’s jurisdiction is limited to decide on the interpretation and application of the UNCLOS means it has the advantage to decide a case expeditiously than the ICJ which may be requested to decide on several questions besides one that has to do with law of the sea. In fact, I would say, the tribunal has built a reputation for its expeditious handling of cases.
Fourthly, the special composition of ITLOS might be the subject of considerations before a dispute is submitted to the Tribunal. In comparison to ICJ the Tribunal is a much bigger body[21]with respect to the strength of the bench. Moreover the election of judges/members is completely independent from the United Nations unlike ICJ[22]. Judges from third world countries are in proportion more numerous at ITLOS that at the ICJ. Also, the permanent members of the Security Council do not enjoy the same position they (de facto) have in the election of the judges of the ICJ.
Fifthly, ITLOS has wider jurisdiction power and is different from other international judicial bodies in this respect. It is open to cases involving “entities other than States” which is a major difference to the International Court of Justice[23]. It can be concluded that the Tribunal my deal with cases involving a State, on the one hand, and a private commercial corporation, an intergovernmental organization or a non-governmental organization, on the other hand[24].
Sixth, the Convention recognizes the exclusive jurisdiction of the Tribunal’s Seabed Disputes Chamber to entertain both disputes arising out of interpretation or application of the provisions of the Convention concerning activities in the Area, and requests for advisory opinions made by the Assembly or the Council of the Authority “on legal questions arising within the scope of their activities”.[25] Thus, the framers of the Convention granted preferential treatment to the Tribunal, since none of the other “means of dispute settlement” referred to in article 287 of the Convention has jurisdiction to deal with such disputes[26] or requests.
Seventh, The Convention confers on the Tribunal residual jurisdiction to entertain cases of prompt release of vessels from detention either for alleged non-compliance with laws and regulations concerning living resources in the exclusive economic zone that have been adopted by the coastal State in conformity with the Convention[27], or for pollution of the marine environment[28]. Other courts and tribunals referred to in article 287 may exercise jurisdiction in cases of prompt release of vessels and crews on the basis of an agreement between the parties. If, however, as is usually the case, no such agreement is reached within 10 days of the detention of the vessel, the flag State may institute the case before a court or tribunal accepted by the detaining State under article 287 or, on a compulsory basis, before the Tribunal[29]. This residual jurisdiction gives the Tribunal an edge over other courts or tribunals referred to in article 287.
Eighth, One major benefit apart from saving expenses is that it save time. It would require much less time to put a panel in place than would be the case in selecting an arbitral tribunal. This would be so even if the parties to the agreement decided not to use the full bench of the 21 judges of ITLOS. As an alternative, the parties could select a chamber to deal with the dispute. The Statute of ITLOS provides for the establishment of chambers to deal with specific categories of disputes[30]. Two such chambers have already been established[31]. An agreement conferring jurisdiction on the Tribunal could stipulate that disputes under the agreement should be submitted to one or other of these chambers, or to a special chamber established for those disputes. Moreover, the Statute of ITLOS requires ITLOS to form a special chamber for dealing with a particular dispute submitted to it, if the parties so request. The composition of such a chamber is to be determined by the Tribunal with the approval of the parties[32]. Accordingly, a dispute arising under an agreement conferring jurisdiction on ITLOS could be submitted to a special chamber if the Agreement so provides or if the parties in the particular dispute so require. Such an arrangement would give to the parties to the agreement, or the parties in a particular dispute, the ability to influence the composition of the chamber to sit on the case, in the same way as they would in choosing an arbitral tribunal.
Moreover ITLOS is not confined only to the disputes related to the interpretation or application of UNCLOS. It is pertinent to note here that the Tribunal is competent to deal with any dispute submitted to it, if the dispute concerns an international agreement, and if this agreement confers jurisdiction to the Tribunal[33]. This means that ITLOS can exercise jurisdiction conferred on it by an agreement which is related to maritime and law of the sea matters[34].
Moreover, the dispute settlement provisions of the Convention are not easily understood, and its procedures seem to reflect that uneasiness. Though, the Tribunal has taken a number of initiatives to disseminate information on its work; and have also prepared a guide to its procedures and have organized eight regional workshops for government legal officers[35].
Benefits over arbitration
Compared to arbitration ITLOS presents a permanent platform especially in cases that require urgent judicial action. It would be unpragmatic, for example, to resort to arbitration in a case that involves provisional measures or prompt release. In fact the tribunal has managed to develop good jurisprudence in relation to prompt release and this, arguably, may place confidence on the tribunal by States. Regarding delimitation I think the Bay of Bengal case is both an opportunity and a challenge to the tribunal.
6. REASON FOR NOT GETTING POPLARITY
The records show that the ITLOS has announced its judgment on the same days as the ICC or ICJ. It is not surprising that the decision by ITLOS has received much less attention than that of the International Criminal Court in the Lubanga case[36]. ITLOS seems to take special care in ensuring that its work is completely overshadowed by the work of other international courts. Announcing a decision on the same day as the ICC’s first judgment is just part of a trend. The hearings in the Bangladesh/Myanmar case[37] were held exactly at the same time as the ICJ hearings in the Germany v. Italy (Immunity) case[38]. So of course, those hearings got very little attention. In September 2010, when ITLOS held hearings in its advisory proceedings on The Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area,[39] they were fixed for the same week as the ICJ’s hearings in the Georgia v. Russia (Convention on the Elimination of Racial Discrimination Case).[40] Considering that these two ITLOS hearings are the only two substantive hearings the tribunal has had in the last couple of years I find it strange that they are fixed for the same time as the ICJ’s hearings, especially as the ICJ itself only has a few hearings a year. It’s not very hard to avoid those week. Perhaps ITLOS is not deliberating trying to hide its light under a bowl, but it couldn’t do a better job of hiding away if it was deliberately trying.
7. CONCLUSION:
The dispute settlement under the convention and particularly in ITLOS, may be viewed as a conflict manager and “watchdog” of international maritime peace and security.
Indeed the tribunal’s role has not only been adjudicative, but also preventative and facilitative. It is important here to quote its former President Jesus who describes the true nature of ITLOS. He said that the Tribunal may assist the parties in more than one way. Adjudication is ofcourse, the main function of the Tribunal but it has the authority or jurisdiction to assist the parties, where appropriate, in reaching direct settlement of the dispute between them.[41]
Moreover, in accordance with article 3 of Annex VII to the Convention, if the parties are unable to reach an agreement on the appointment of one or more of the members of the arbitral tribunal to be appointed by agreement, or on the appointment of the president of the arbitral tribunal, these appointments shall be made by the President of the International Tribunal for the Law of the Sea at the request of a party to the dispute and in consultation with the parties[42]. Hence we can see that the Tribunal’s role in the law of the sea dispute settlement system goes beyond its judicial competence.[43]
The Tribunal is quite a young international institution as it has been functioning for only 15 years and it has been gradually gaining confidence from the parties to the Convention[44]. Apart from this if we compare the dockets of the International Court of Justice and the ITLOS in the period under review, we will find that Tribunal has received 20 cases on the law of the sea, whereas the ICJ received almost half the number of such cases[45] and none of them have been submitted to it under Part XV LOSC.[46] Moreover, since the beginning of its work in 1996, the Tribunal has received the highest number of cases as compared with other Article 287 LOSC tribunals.[47] These facts say eloquently that the establishment of the Tribunal was not a ‘great mistake’ as was at times suggested[48].
Though the extent to which the forum shopping takes place highlights an institutional weakness.[49] Instead of giving so many option to parties amendment should be made and a uniform rule should be applied that all the cases related to the law of the sea will be dealt by the ITLOS. Another problem which is faced by ITLOS is due to the limited power with respect to the compulsory jurisdiction.
For those looking for a brighter future for ITLOS, they should consider whether it will follow the trajectory of the International Centre for the Settlement of Investment Disputes (ICSID). Between ICSID’s formation in 1972 and its ten year anniversary in 1982, it too heard only 13 disputes as mentioned above also. Today, however, ICSID has become a frequent source for decisions on international investment issues. From 1995-2005, it heard over 77 cases. So, even if there’s not much fanfare over ITLOS at 10, if it can increase the quantity and quality of its caseload, there may still be cause to celebrate in the years to come.
Annexure -1
LIST OF CASES IN ITLOS
Case No. 1
The M/V "SAIGA" Case (Saint Vincent and the Grenadines v. Guinea), Prompt Release
Case No. 2
The M/V "SAIGA" (No. 2) Case (Saint Vincent and the Grenadines v. Guinea)
Cases Nos 3 & 4
Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures
Case No. 5
The "Camouco" Case (Panama v. France), Prompt Release
Case No. 6
The "Monte Confurco" Case (Seychelles v. France), Prompt Release
Case No. 7
Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile / European Union)
Case No. 8
The "Grand Prince" Case (Belize v. France), Prompt Release
Case No. 9
The "Chaisiri Reefer 2" Case (Panama v. Yemen), Prompt Release
Case No. 10
The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures
Case No. 11
The "Volga" Case (Russian Federation v. Australia), Prompt Release
Case No. 12
Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures
Case No. 13
The "Juno Trader" Case (Saint Vincent and the Grenadines v. Guinea-Bissau), Prompt Release
Case No. 14
The "Hoshinmaru" Case (Japan v. Russian Federation), Prompt Release
Case No. 15
The "Tomimaru" Case (Japan v. Russian Federation), Prompt Release
Case No. 16
Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar)
Case No. 17
Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber)
Case No. 18
The M/V "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain)
Case No. 19
The M/V "Virginia G" Case (Panama/Guinea-Bissau)
Case No. 20
The “ARA Libertad” Case (Argentina v. Ghana), Provisional Measures.
[1] Antonio Cassesse, Attitudes of states towards international law, International Law in a Divided World, Oxford University Press, Oxford, (1986) .
[2] Ibid.
[3] Available at
http://www.itlos.org/index.php?id=32&L=..%2F..%2F..%2F..%2F..%2F..%2F..%2Fetc%2Fpasswd%25252500
[4] ‘Only States may be parties in cases before the Court’, Article 34, paragraph 1, of the Statute of the International Court of Justice.
[5] Article 20 of the Statute of ITLOS states that the:
“Tribunal shall be open to entities other than States Parties in any case submitted to it pursuant to any other agreement conferring jurisdiction on the Tribunal...”
[6] Refer to official website of WTO available at http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm.
[7]Refer to official website of ICSID available at https://icsid.worldbank.org/ICSID/FrontServlet?request&actionVal=ListCases.
[8] Id.
[9] The M/V “Saiga” case (Saint Vincent and the Grenadines v. Guinea); the “Camouco” case (Panama v. France); the “Monte Confurco” case (Seychelles v. France); the “Grand Prince” case (Belize v. France); the “Volga” case (Russian Federation v. Australia); the “Juno Trader” case (Saint Vincent and the Grenadines v. Guinea Bissau; the “Hoshinmaru” case (Japan v. Russian Federation); the “Tomimaru” case (Japan v. Russian Federation) .
[10] The Bluefin Tuna cases (Australia v. Japan; New Zealand v. Japan), the MOX Plant case (Ireland v. the United Kingdom) and the Land Reclamation case (Malaysia v. Singapore).
[11] Panama v. Yemen.
[12] To date, this is the only contentious case that has been submitted to a chamber of the Tribunal.
[13] The dispute concerning the delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Case No.16 of ITLOS). It is available at official website of the Tribunal at http://www.itlos.org/index.php?id=108.
[14] Refer paragraph 454 of the Judgment.
[15] Refer paragraph 455 of the Judgment.
[16] Later name changed to Republic of Union of Myanmar.
[17] Refer Paragraph 18 of the Judgment.
[18] Copies of the notification and Statement of Claim can be seen at the website of the Tribunal available at http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/Notification_Bangladesh_14.12.09.pdf
[19] Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, to be published. The text of the judgment is available on the tribuna’s website at http://www.itlos.org/index.php?id=108. Memorial, Counter-Memorial, Reply and Verbatim Records are available at the above internet address. This analysis is based on the electronic version of the text.
[20] http://www.itlos.org/index.php?id=139&L=0
[21] 21 judges against 15 judges at ICJ. That too are specialized judges in the field of law of the sea.
[22] Tullio Treves, Laura Pineschi, “The Law of the Sea: The European Union and Its Member States”, Martinus Nijhoff Publishers, 1997.
[23] Article 20 of the ITLOS Statute.
[24] Peter Ehlers, Rainer Lagoni, “International Maritime Organisations and Their Contribution: Towards a Sustainable Marine Development”, LIT Verlag Münster, 2006, at pg. 311.
[25] See art. 191 of the Convention.
[26] See Carl-August Fleischhauer, “The Relationship Between the International Court of Justice and the Newly Created International Tribunal for the Law of the Sea in Hamburg, Max Planck Yearbook of United Nations Law, vol. 1 (1997), p 332. See also Dame Rosalyn Higgins’ statement at the tenth anniversary of the International Tribunal for the Law of the Sea.
[27] See Art. 73, para. 1, of the Convention.
[28] Ibid., arts. 220, para. 7, and 226, paras 1 (b) and (c).
[29] Ibid., art. 292, para. 1.
[30] See, Article 15, paragraph 1.
[31] These are the Chamber for Fisheries Disputes and the Chamber for Marine Environment Disputes.
[32] See Article 15, paragraph 2, of the Statute of ITLOS.
[33] Peter Ehlers, Rainer Lagoni, “International Maritime Organisations and Their Contribution: Towards a Sustainable Marine Development”, LIT Verlag Münster, 2006, at pg. 311.
[34] T. Mensah, “The Significance of the International Tribunalfor the Law of the Sea for the Shipping Industry”, 2WMUJournal of Maritime Affairs, 2004, p.-111-121.
[35] Keynote speech by Judge Jose Luis Jesus, President of the International Tribunal for the Law of the Sea on “The Role of ITLOS in the Settlement of Law of the Sea Disputes” at Globalization and the Law of the Sea, a conference organized by KMI – COLP – NILOS.
[36] Lubanga Trial a Landmark Case, 23 January 2009, AR No. 198, available at: http://www.unhcr.org/refworld/docid/49817d42c.html [accessed 21 January 2013].
[37]Available at website of the Tribunal at http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/C16_Judgment_14_03_2012_rev.pdf.
[38]Available at website of the Court at http://www.icj-cij.org/docket/files/143/16883.pdf.
[39]Available at Tribunal’s website at http://www.itlos.org/index.php?id=108&L=0%5CoOpensinternallinkincurrentwindow#c964.
[40] Available at Court’s website at http://www.icj-cij.org/docket/files/140/16398.pdf.
[41] Keynote speech of the ITLOS President Jesus on “The Role of ITLOS in the Settlement of Law of the Sea Dispute” at the Globalization and the Law of the Sea Conference, 2 December 2010 at Washington D.C. available at
[42] Statement by President Jesus, of the International Tribunal for the Law of the Sea on The report of the tribunal at
The twenty-first meeting of States Parties to the United Nations Convention on the law of the sea on 13 June 2011. Available at http://www.itlos.org/fileadmin/itlos/documents/statements_of_president/jesus/msp_130611_eng_rev.pdf last vsited on 4 January 2013.
In 2010 the President of the Tribunal had the opportunity to discharge this responsibility in relation to the composition of the Annex VII arbitral tribunal instituted in respect of the dispute between Bangladesh and India concerning the delimitation of the maritime boundary between the two countries in the Bay of Bengal. In consultation with the parties, he appointed the three arbitrators and the President of the arbitral tribunal.
[43] In 2011 also, upon request from the Government of Mauritius and in consultation with the parties, the President of the Tribunal this year appointed the three arbitrators and the president of the Annex VII arbitral tribunal instituted in respect of the dispute between Mauritius and the United Kingdom concerning the “Marine Protected Area” related to the Chagos Archipelago.
[44] We can see that ICSID also got popularity after 20 years of establishment.
[45] Supra 37.
[46] Under Article 287 of the Convention choice of procedure is given to the parties under which States that:
(1) When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:
(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with Annex VII;
(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.
[47] Statement by Jose Luis Jesus, President of the International Tribunal for the Law of the Sea to the Meeting of the Sixth Committee of the General Assembly New York, 4 November 2009, available at http://www.itlos.org/fileadmin/itlos/documents/statements_of_president/jesus/sixth_committee_041109_eng.pdf
[48] Igor V. Karaman, “Dispute Resolution in the Law of the Sea”, Martinus Nijhoff Publishers, 2012 at pg. 327.
[49] Peter Ehlers, Rainer Lagoni, “International Maritime Organisations and Their Contribution: Towards a Sustainable Marine Development”, LIT Verlag Münster, 2006, at pg. 311.
Rajiv Gandhi National University of Law, Punjab
1. INTRODUCTION
We all agree to this fact that owing to the encroachment of international law upon national sovereignty, there has in the past been a distinct reluctance towards creating international supervisory mechanisms. Instead, there has been a ‘swelling of the normative network without any corresponding development in supervision’[1]. International rules have historically yielded to domestic law, and have been referred to as ‘quasi’, ‘near’ or ‘soft’ laws, due to the difficulty encountered in enforcing them[2].
However, with the growing interdependence between nation states, whether economic, cultural, environmental, military or otherwise, we can no longer merely rely on the reciprocal entitlement principle or a nation’s goodwill towards common values to assist in the enforcement of international law. The significant number of war crimes and crimes against humanity that have occurred since the end of World War II, including in Indonesia, East Pakistan, Burundi, Cambodia, Rwanda, Bosnia and Iraq, emphasise this point.
Background:
The idea of forming a separate tribunal for the matters related law of the sea came on 3 December 1973 at New York in the opening of the third United Nations Conference on the Law of the Sea during which the UN Convention on the Law of the Sea was drafted. Within one year of the conference an informal working group was formed to discuss all the matters pertaining to the settlement of disputes which could arise out of the application or interpretation of the Convention. This working proposes three different types of dispute resolution mechanism i.e. through arbitration, by approaching the International Court of Justice (which was already in existence at that time) and a tribunal for the law of the sea. These propositions were made on 27 August 1974 at Caracas therefore it is popularly known as the “Document of Caracas”[3]
The International Tribunal for the Law of the Sea is a judicial body created by the 1982 United Nations Convention on the Law of the Sea (hereinafter “the Convention”), which , as of now, has been ratified by an impressive number of 161 countries, from all regions of the world, both coastal and land-locked.
Jurisdiction:
ITLOS is competent to adjudicate on cases where some or all of the parties may not be States. In this context, ITLOS is different from other international courts such as, for example, the International Court of Justice (ICJ). As is well known, only States may be parties in cases before the International Court of Justice. This means that the ICJ cannot accept or deal with a dispute if one of the parties involved is a non-state entity[4]. For example, a dispute between a State and a multinational corporation or an inter-governmental institution such as the European Community cannot be submitted to the International Court of Justice. ITLOS, on the other hand, is able to deal with such cases[5].
This provision is an amplification of Article 288 of the Convention. That article states that the Tribunal (and other judicial bodies referred to in Article 287 of the Convention) shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention which is submitted to it in accordance with the agreement.
By virtue of these provisions, ITLOS can act as a judicial body for disputes arising under a convention or agreement other than the Convention on the Law of the Sea. This will be so where such a convention or agreement provides that disputes arising in relation to any of its provisions may be submitted to ITLOS.
2. WHY ITLOS IS CONSIDERED AS A FAILURE
When we compare case docket of ITLOS with other judicial organs then it seems that ITLOS is not successful in achieving its goals. In its first ten years (1946-1956), the ICJ decided 20 contentious cases and issued 10 advisory opinions. Of course, the ICJ’s jurisdiction reaches virtually all international legal issues, so it might be unfair to compare it to a “specialized” international tribunal such as ITLOS. At the same time, some specialized international tribunals have far exceeded ITLOS in terms of their caseloads. For example, when the WTO celebrated its 10 year anniversary a couple of years ago, it could boast over 300 cases[6] in its first decade.
Moreover the graph of ITLOS is similar to that of the trajectory of the International Centre for the Settlement of Investment Disputes (ICSID). Between ICSID’s formation in 1972 and its ten year anniversary in 1982, it too heard only 13 disputes. [7]
3. ROLE OF ITLOS IN PROMOTING INTERNATIONAL LAW/OR MAINTINING PEACE AND SECURITY
Since its establishment the Tribunal, examined a question of great significance i.e., its general competence in maritime delimitation cases. In that regard, Article 288[8] of the Convention conferred jurisdiction on the Tribunal, as well as on the International Court of Justice or on an arbitral tribunal, to deal with any dispute concerning the interpretation or application of the Convention. Maritime delimitation disputes were those concerning the interpretation or application of the Convention and, therefore, such disputes were subjected to compulsory binding settlement under Part XV, section 2, of the treaty if, and to the extent, that section 1 did not provide otherwise. At the Tribunal’s twenty-third session, on 16 March, the Tribunal adopted a resolution to form a standing special chamber known as the Chamber for Maritime Delimitation Disputes, it would be available to deal with disputes in that field, which the parties agreed to submit to it concerning the interpretation or application of any relevant provision of the Convention and of any other agreement that conferred jurisdiction on the Tribunal.
Cases before the Tribunal:
A great deal has been written and said about the Tribunal’s shortage of cases. Although it could have entertained more cases than it has, the fact is that States have made greater use of the Tribunal than is commonly believed. Since 1998, when it received its first case, a total of 18 cases have been filed. Of these, 13 have been resolved, two were discontinued and the last three cases, instituted in the past 12 months, are under way.
Of the 13 cases that have been resolved, eight were prompt release cases,[9] four involved provisional measures[10] pending the constitution of an Annex VII arbitral tribunal and one dealt with compensation for the illegal arrest of vessel. The majority of these cases concerned prompt release of vessels and crews detained for alleged violation of coastal States’ fisheries regulations in the exclusive economic zone. The Tribunal has developed a substantial corpus of jurisprudence in this regard.
The two discontinued cases were case No. 7 – Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile / the European Union) and Case No. 9 – The “Chaisiri Reefer” 2 Case[11], Prompt Release.
Case No. 7 was submitted to an ad hoc Special Chamber of the Tribunal formed under article 15, paragraph 2, of the Statute of the Tribunal.[12] In March 2001, the parties informed the Special Chamber that they had reached a provisional arrangement concerning the dispute and requested that the proceedings before the Chamber be suspended.
The “Chaisiri Reefer 2” prompt release case was also discontinued at the request of the parties as the detaining State had released the vessel, cargo and crew before the Tribunal could begin to deal with it.
4. MARITIME DELIMITATION JUDGMENT: A RAY OF HOPE
On 14 March 2012, the Tribunal gave a judgment in its first maritime delimitation case.[13] With regard to the continental shelf beyond 200 nautical miles, the Tribunal first established that it had jurisdiction to delimit the continental shelf in its entirety. It then examined questions relating to, inter alia, the Parties’ entitlements to a continental shelf beyond 200 nautical miles, and the meaning of “natural prolongation” and how it inter-relates with that of “continental margin”. From this examination, the Tribunal concluded that the Parties had overlapping entitlements to the continental shelf beyond 200 nautical miles and the Tribunal proceeded to effect the delimitation. In this connection the Tribunal stated:
“Article 83 of the Convention applies equally to the delimitation of the continental shelf both within and beyond 200 [nautical miles].”[14]
The Tribunal further observed:
“the delimitation method to be employed in the present case for the continental shelf beyond 200 nautical miles should not differ from that within 200 [nautical miles]. Accordingly, the e
quidistance/ relevant circumstances method continues to apply for the delimitation of the continental shelf beyond 200 [nautical miles].”[15]
Brief Facts of the case:
On 13 December 2009 through a letter, Ministry of Foreign Affairs informed the President of the ITLOS that arbitral proceedings have been instituted against the Union of Myanmar[16] under Annex VII of the UNCLOS.[17] Due to disagreement between both the countries no agreement for equitable delimitation of maritime zones between them was ever reached. This disagreement resulted into a deadlock in the negotiations which eventually obstructed the exploration of natural resources in the Bay by both the countries. Having failed to resolve the dispute, on 08 October 2009, the Government of the People’ Republic of Bangladesh instituted arbitral proceedings against both the Union of Myanmar and the Republic of India pursuant to Annex VII of the UN Convention on the Law of the Sea (hereinafter “UNCLOS”) by submitting Notifications and Statements of Claim to the diplomatic representatives of both States in Dhaka[18]. The purpose stated by the Bangladesh in its notification was to secure the full and satisfactory delimitation of Bangladesh’s maritime boundaries with India and Myanmar in the territorial sea, the exclusive economic zone and the continental shelf in accordance with international law.
Both parties thereafter accepted the jurisdiction of ITLOS for resolution of the dispute and transferred the case to the ITLOS. On 14 December 2009, the case entered the docket of the Tribunal as the 16th case. In addition to 21 members of the Tribunal, two ad-hoc judges were also appointed by the parties, Judge Thomas Mensah by Bangladesh and Judge Bernard Oxman by Myanmar.
Significance of the judgment in this case:
Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar[19], which will be considered in this study is the latest judgment in this field and first of its kind, delivered by ITLOS. This case is important in various aspects but in particular, for three reasons. Firstly this is the first instance where the ITLOS has decided a case concerning the maritime delimitation on merit. Therefore it is going to indicate its approach towards maritime boundary delimitation as compared to International Court of Justice and other international tribunals.
Secondly one of the important issues in this dispute relates to the legal rights and interests of third States/parties. This decision will also be an important point of reference on the on-going dispute between the Bangladesh and India concerning their maritime boundaries on the other side of the Bay of Bengal. As evident from the map in figure 1, the relevant area, which was the subject matter of the dispute, is in a highly complicated geographical position. Thirdly, it is the first ever judgment of ITLOS which directly addresses the delimitation of the continental shelf beyond 200 nautical miles which evidently lead to some novel legal issues in the judgment.
5. BENEFITS OF ITLOS OVER OTHER ALTERNATIVE MECHANISM
Now the question arise why should a State party approach to ITLOS instead of arbitration or approaching ICJ, which is well established forum. For this reason we have to discuss the advantages of ITLOS over these alternative remedies.
Firstly, ITLOS is a judicial body established by the United Nations. It is well established that the decisions of the judicial bodies may be regarded as carrying greater (political rather than legal) authority than that of the arbitral tribunals. This is the situation with ICJ and hope same will be applicable to ITLOS.
Secondly, there is a provision for the developing countries who accept the ITLOS jurisdiction may get financial assistance[20]. It is clearly specified that the developing States which are parties to a dispute before the Tribunal may qualify for financial assistance to help them cover the costs related to lawyers’ fees or travel and accommodation of their delegation during the oral proceedings in the Tribunal.
Thirdly, the fact that the tribunal is a specialized judicial body places it in a better position to decide cases that demand special expertise. Notable examples are fisheries, marine environment and marine research. Furthermore, the tribunal’s jurisdiction is limited to decide on the interpretation and application of the UNCLOS means it has the advantage to decide a case expeditiously than the ICJ which may be requested to decide on several questions besides one that has to do with law of the sea. In fact, I would say, the tribunal has built a reputation for its expeditious handling of cases.
Fourthly, the special composition of ITLOS might be the subject of considerations before a dispute is submitted to the Tribunal. In comparison to ICJ the Tribunal is a much bigger body[21]with respect to the strength of the bench. Moreover the election of judges/members is completely independent from the United Nations unlike ICJ[22]. Judges from third world countries are in proportion more numerous at ITLOS that at the ICJ. Also, the permanent members of the Security Council do not enjoy the same position they (de facto) have in the election of the judges of the ICJ.
Fifthly, ITLOS has wider jurisdiction power and is different from other international judicial bodies in this respect. It is open to cases involving “entities other than States” which is a major difference to the International Court of Justice[23]. It can be concluded that the Tribunal my deal with cases involving a State, on the one hand, and a private commercial corporation, an intergovernmental organization or a non-governmental organization, on the other hand[24].
Sixth, the Convention recognizes the exclusive jurisdiction of the Tribunal’s Seabed Disputes Chamber to entertain both disputes arising out of interpretation or application of the provisions of the Convention concerning activities in the Area, and requests for advisory opinions made by the Assembly or the Council of the Authority “on legal questions arising within the scope of their activities”.[25] Thus, the framers of the Convention granted preferential treatment to the Tribunal, since none of the other “means of dispute settlement” referred to in article 287 of the Convention has jurisdiction to deal with such disputes[26] or requests.
Seventh, The Convention confers on the Tribunal residual jurisdiction to entertain cases of prompt release of vessels from detention either for alleged non-compliance with laws and regulations concerning living resources in the exclusive economic zone that have been adopted by the coastal State in conformity with the Convention[27], or for pollution of the marine environment[28]. Other courts and tribunals referred to in article 287 may exercise jurisdiction in cases of prompt release of vessels and crews on the basis of an agreement between the parties. If, however, as is usually the case, no such agreement is reached within 10 days of the detention of the vessel, the flag State may institute the case before a court or tribunal accepted by the detaining State under article 287 or, on a compulsory basis, before the Tribunal[29]. This residual jurisdiction gives the Tribunal an edge over other courts or tribunals referred to in article 287.
Eighth, One major benefit apart from saving expenses is that it save time. It would require much less time to put a panel in place than would be the case in selecting an arbitral tribunal. This would be so even if the parties to the agreement decided not to use the full bench of the 21 judges of ITLOS. As an alternative, the parties could select a chamber to deal with the dispute. The Statute of ITLOS provides for the establishment of chambers to deal with specific categories of disputes[30]. Two such chambers have already been established[31]. An agreement conferring jurisdiction on the Tribunal could stipulate that disputes under the agreement should be submitted to one or other of these chambers, or to a special chamber established for those disputes. Moreover, the Statute of ITLOS requires ITLOS to form a special chamber for dealing with a particular dispute submitted to it, if the parties so request. The composition of such a chamber is to be determined by the Tribunal with the approval of the parties[32]. Accordingly, a dispute arising under an agreement conferring jurisdiction on ITLOS could be submitted to a special chamber if the Agreement so provides or if the parties in the particular dispute so require. Such an arrangement would give to the parties to the agreement, or the parties in a particular dispute, the ability to influence the composition of the chamber to sit on the case, in the same way as they would in choosing an arbitral tribunal.
Moreover ITLOS is not confined only to the disputes related to the interpretation or application of UNCLOS. It is pertinent to note here that the Tribunal is competent to deal with any dispute submitted to it, if the dispute concerns an international agreement, and if this agreement confers jurisdiction to the Tribunal[33]. This means that ITLOS can exercise jurisdiction conferred on it by an agreement which is related to maritime and law of the sea matters[34].
Moreover, the dispute settlement provisions of the Convention are not easily understood, and its procedures seem to reflect that uneasiness. Though, the Tribunal has taken a number of initiatives to disseminate information on its work; and have also prepared a guide to its procedures and have organized eight regional workshops for government legal officers[35].
Benefits over arbitration
Compared to arbitration ITLOS presents a permanent platform especially in cases that require urgent judicial action. It would be unpragmatic, for example, to resort to arbitration in a case that involves provisional measures or prompt release. In fact the tribunal has managed to develop good jurisprudence in relation to prompt release and this, arguably, may place confidence on the tribunal by States. Regarding delimitation I think the Bay of Bengal case is both an opportunity and a challenge to the tribunal.
6. REASON FOR NOT GETTING POPLARITY
The records show that the ITLOS has announced its judgment on the same days as the ICC or ICJ. It is not surprising that the decision by ITLOS has received much less attention than that of the International Criminal Court in the Lubanga case[36]. ITLOS seems to take special care in ensuring that its work is completely overshadowed by the work of other international courts. Announcing a decision on the same day as the ICC’s first judgment is just part of a trend. The hearings in the Bangladesh/Myanmar case[37] were held exactly at the same time as the ICJ hearings in the Germany v. Italy (Immunity) case[38]. So of course, those hearings got very little attention. In September 2010, when ITLOS held hearings in its advisory proceedings on The Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the International Seabed Area,[39] they were fixed for the same week as the ICJ’s hearings in the Georgia v. Russia (Convention on the Elimination of Racial Discrimination Case).[40] Considering that these two ITLOS hearings are the only two substantive hearings the tribunal has had in the last couple of years I find it strange that they are fixed for the same time as the ICJ’s hearings, especially as the ICJ itself only has a few hearings a year. It’s not very hard to avoid those week. Perhaps ITLOS is not deliberating trying to hide its light under a bowl, but it couldn’t do a better job of hiding away if it was deliberately trying.
7. CONCLUSION:
The dispute settlement under the convention and particularly in ITLOS, may be viewed as a conflict manager and “watchdog” of international maritime peace and security.
Indeed the tribunal’s role has not only been adjudicative, but also preventative and facilitative. It is important here to quote its former President Jesus who describes the true nature of ITLOS. He said that the Tribunal may assist the parties in more than one way. Adjudication is ofcourse, the main function of the Tribunal but it has the authority or jurisdiction to assist the parties, where appropriate, in reaching direct settlement of the dispute between them.[41]
Moreover, in accordance with article 3 of Annex VII to the Convention, if the parties are unable to reach an agreement on the appointment of one or more of the members of the arbitral tribunal to be appointed by agreement, or on the appointment of the president of the arbitral tribunal, these appointments shall be made by the President of the International Tribunal for the Law of the Sea at the request of a party to the dispute and in consultation with the parties[42]. Hence we can see that the Tribunal’s role in the law of the sea dispute settlement system goes beyond its judicial competence.[43]
The Tribunal is quite a young international institution as it has been functioning for only 15 years and it has been gradually gaining confidence from the parties to the Convention[44]. Apart from this if we compare the dockets of the International Court of Justice and the ITLOS in the period under review, we will find that Tribunal has received 20 cases on the law of the sea, whereas the ICJ received almost half the number of such cases[45] and none of them have been submitted to it under Part XV LOSC.[46] Moreover, since the beginning of its work in 1996, the Tribunal has received the highest number of cases as compared with other Article 287 LOSC tribunals.[47] These facts say eloquently that the establishment of the Tribunal was not a ‘great mistake’ as was at times suggested[48].
Though the extent to which the forum shopping takes place highlights an institutional weakness.[49] Instead of giving so many option to parties amendment should be made and a uniform rule should be applied that all the cases related to the law of the sea will be dealt by the ITLOS. Another problem which is faced by ITLOS is due to the limited power with respect to the compulsory jurisdiction.
For those looking for a brighter future for ITLOS, they should consider whether it will follow the trajectory of the International Centre for the Settlement of Investment Disputes (ICSID). Between ICSID’s formation in 1972 and its ten year anniversary in 1982, it too heard only 13 disputes as mentioned above also. Today, however, ICSID has become a frequent source for decisions on international investment issues. From 1995-2005, it heard over 77 cases. So, even if there’s not much fanfare over ITLOS at 10, if it can increase the quantity and quality of its caseload, there may still be cause to celebrate in the years to come.
Annexure -1
LIST OF CASES IN ITLOS
Case No. 1
The M/V "SAIGA" Case (Saint Vincent and the Grenadines v. Guinea), Prompt Release
Case No. 2
The M/V "SAIGA" (No. 2) Case (Saint Vincent and the Grenadines v. Guinea)
Cases Nos 3 & 4
Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures
Case No. 5
The "Camouco" Case (Panama v. France), Prompt Release
Case No. 6
The "Monte Confurco" Case (Seychelles v. France), Prompt Release
Case No. 7
Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile / European Union)
Case No. 8
The "Grand Prince" Case (Belize v. France), Prompt Release
Case No. 9
The "Chaisiri Reefer 2" Case (Panama v. Yemen), Prompt Release
Case No. 10
The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures
Case No. 11
The "Volga" Case (Russian Federation v. Australia), Prompt Release
Case No. 12
Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures
Case No. 13
The "Juno Trader" Case (Saint Vincent and the Grenadines v. Guinea-Bissau), Prompt Release
Case No. 14
The "Hoshinmaru" Case (Japan v. Russian Federation), Prompt Release
Case No. 15
The "Tomimaru" Case (Japan v. Russian Federation), Prompt Release
Case No. 16
Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar)
Case No. 17
Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber)
Case No. 18
The M/V "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain)
Case No. 19
The M/V "Virginia G" Case (Panama/Guinea-Bissau)
Case No. 20
The “ARA Libertad” Case (Argentina v. Ghana), Provisional Measures.
[1] Antonio Cassesse, Attitudes of states towards international law, International Law in a Divided World, Oxford University Press, Oxford, (1986) .
[2] Ibid.
[3] Available at
http://www.itlos.org/index.php?id=32&L=..%2F..%2F..%2F..%2F..%2F..%2F..%2Fetc%2Fpasswd%25252500
[4] ‘Only States may be parties in cases before the Court’, Article 34, paragraph 1, of the Statute of the International Court of Justice.
[5] Article 20 of the Statute of ITLOS states that the:
“Tribunal shall be open to entities other than States Parties in any case submitted to it pursuant to any other agreement conferring jurisdiction on the Tribunal...”
[6] Refer to official website of WTO available at http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm.
[7]Refer to official website of ICSID available at https://icsid.worldbank.org/ICSID/FrontServlet?request&actionVal=ListCases.
[8] Id.
[9] The M/V “Saiga” case (Saint Vincent and the Grenadines v. Guinea); the “Camouco” case (Panama v. France); the “Monte Confurco” case (Seychelles v. France); the “Grand Prince” case (Belize v. France); the “Volga” case (Russian Federation v. Australia); the “Juno Trader” case (Saint Vincent and the Grenadines v. Guinea Bissau; the “Hoshinmaru” case (Japan v. Russian Federation); the “Tomimaru” case (Japan v. Russian Federation) .
[10] The Bluefin Tuna cases (Australia v. Japan; New Zealand v. Japan), the MOX Plant case (Ireland v. the United Kingdom) and the Land Reclamation case (Malaysia v. Singapore).
[11] Panama v. Yemen.
[12] To date, this is the only contentious case that has been submitted to a chamber of the Tribunal.
[13] The dispute concerning the delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Case No.16 of ITLOS). It is available at official website of the Tribunal at http://www.itlos.org/index.php?id=108.
[14] Refer paragraph 454 of the Judgment.
[15] Refer paragraph 455 of the Judgment.
[16] Later name changed to Republic of Union of Myanmar.
[17] Refer Paragraph 18 of the Judgment.
[18] Copies of the notification and Statement of Claim can be seen at the website of the Tribunal available at http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/Notification_Bangladesh_14.12.09.pdf
[19] Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, to be published. The text of the judgment is available on the tribuna’s website at http://www.itlos.org/index.php?id=108. Memorial, Counter-Memorial, Reply and Verbatim Records are available at the above internet address. This analysis is based on the electronic version of the text.
[20] http://www.itlos.org/index.php?id=139&L=0
[21] 21 judges against 15 judges at ICJ. That too are specialized judges in the field of law of the sea.
[22] Tullio Treves, Laura Pineschi, “The Law of the Sea: The European Union and Its Member States”, Martinus Nijhoff Publishers, 1997.
[23] Article 20 of the ITLOS Statute.
[24] Peter Ehlers, Rainer Lagoni, “International Maritime Organisations and Their Contribution: Towards a Sustainable Marine Development”, LIT Verlag Münster, 2006, at pg. 311.
[25] See art. 191 of the Convention.
[26] See Carl-August Fleischhauer, “The Relationship Between the International Court of Justice and the Newly Created International Tribunal for the Law of the Sea in Hamburg, Max Planck Yearbook of United Nations Law, vol. 1 (1997), p 332. See also Dame Rosalyn Higgins’ statement at the tenth anniversary of the International Tribunal for the Law of the Sea.
[27] See Art. 73, para. 1, of the Convention.
[28] Ibid., arts. 220, para. 7, and 226, paras 1 (b) and (c).
[29] Ibid., art. 292, para. 1.
[30] See, Article 15, paragraph 1.
[31] These are the Chamber for Fisheries Disputes and the Chamber for Marine Environment Disputes.
[32] See Article 15, paragraph 2, of the Statute of ITLOS.
[33] Peter Ehlers, Rainer Lagoni, “International Maritime Organisations and Their Contribution: Towards a Sustainable Marine Development”, LIT Verlag Münster, 2006, at pg. 311.
[34] T. Mensah, “The Significance of the International Tribunalfor the Law of the Sea for the Shipping Industry”, 2WMUJournal of Maritime Affairs, 2004, p.-111-121.
[35] Keynote speech by Judge Jose Luis Jesus, President of the International Tribunal for the Law of the Sea on “The Role of ITLOS in the Settlement of Law of the Sea Disputes” at Globalization and the Law of the Sea, a conference organized by KMI – COLP – NILOS.
[36] Lubanga Trial a Landmark Case, 23 January 2009, AR No. 198, available at: http://www.unhcr.org/refworld/docid/49817d42c.html [accessed 21 January 2013].
[37]Available at website of the Tribunal at http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/C16_Judgment_14_03_2012_rev.pdf.
[38]Available at website of the Court at http://www.icj-cij.org/docket/files/143/16883.pdf.
[39]Available at Tribunal’s website at http://www.itlos.org/index.php?id=108&L=0%5CoOpensinternallinkincurrentwindow#c964.
[40] Available at Court’s website at http://www.icj-cij.org/docket/files/140/16398.pdf.
[41] Keynote speech of the ITLOS President Jesus on “The Role of ITLOS in the Settlement of Law of the Sea Dispute” at the Globalization and the Law of the Sea Conference, 2 December 2010 at Washington D.C. available at
[42] Statement by President Jesus, of the International Tribunal for the Law of the Sea on The report of the tribunal at
The twenty-first meeting of States Parties to the United Nations Convention on the law of the sea on 13 June 2011. Available at http://www.itlos.org/fileadmin/itlos/documents/statements_of_president/jesus/msp_130611_eng_rev.pdf last vsited on 4 January 2013.
In 2010 the President of the Tribunal had the opportunity to discharge this responsibility in relation to the composition of the Annex VII arbitral tribunal instituted in respect of the dispute between Bangladesh and India concerning the delimitation of the maritime boundary between the two countries in the Bay of Bengal. In consultation with the parties, he appointed the three arbitrators and the President of the arbitral tribunal.
[43] In 2011 also, upon request from the Government of Mauritius and in consultation with the parties, the President of the Tribunal this year appointed the three arbitrators and the president of the Annex VII arbitral tribunal instituted in respect of the dispute between Mauritius and the United Kingdom concerning the “Marine Protected Area” related to the Chagos Archipelago.
[44] We can see that ICSID also got popularity after 20 years of establishment.
[45] Supra 37.
[46] Under Article 287 of the Convention choice of procedure is given to the parties under which States that:
(1) When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:
(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with Annex VII;
(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.
[47] Statement by Jose Luis Jesus, President of the International Tribunal for the Law of the Sea to the Meeting of the Sixth Committee of the General Assembly New York, 4 November 2009, available at http://www.itlos.org/fileadmin/itlos/documents/statements_of_president/jesus/sixth_committee_041109_eng.pdf
[48] Igor V. Karaman, “Dispute Resolution in the Law of the Sea”, Martinus Nijhoff Publishers, 2012 at pg. 327.
[49] Peter Ehlers, Rainer Lagoni, “International Maritime Organisations and Their Contribution: Towards a Sustainable Marine Development”, LIT Verlag Münster, 2006, at pg. 311.